The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0111-15T2
SCHOWL HEDVAT AND
SIMA HEDVAT,
Plaintiffs-Appellants,
v.
TENAFLY PLANNING BOARD AND
BOROUGH OF TENAFLY,
Defendants-Respondents,
and
PASSAIC VALLEY TITLE SERVICE,
TICOR TITLE INSURANCE COMPANY,
CHICAGO TITLE INSURANCE COMPANY,
ROBERT J. MUELLER, MICHAEL HUBSCHMAN,
HUBSCHMAN ENGINEERING, PA., ERIC
MARGOLIS and KAREN PATRUSKY,
Defendants.
_________________________________
Argued telephonically February 14, 2017 –
Decided August 9, 2017
Before Judges Simonelli, Carroll and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-0993-12.
Carmine R. Alampi argued the cause for
appellants (Alampi & DeMarrais, attorneys;
Thomas A. Lodato, on the briefs).
Jeffrey A. Zenn argued the cause for
respondent Tenafly Planning Board (Cullen and
Dykman, LLP, attorneys; Mr. Zenn, on the
brief).
Respondent Borough of Tenafly has not filed a
brief.
PER CURIAM
Plaintiffs Schowl and Sima Hedvat (collectively, plaintiff)
appeal from the October 22, 2012 judgment, which affirmed the
decision of respondent Tenafly Planning Board (Board) to deny
plaintiff's application for minor subdivision approval. We
affirm.
We derive the following facts from the record. Plaintiff
owns property on Elkwood Terrace in Tenafly known as Lot 3, Block
2103 (the property). The property is a large rectangular lot
measuring 33,709 square feet, and contains a single-family home
that fronts Elkwood Terrace with access to Elkwood Terrace via a
driveway. There presently is a stone or gravel driveway in the
rear of the property that fronts Mayflower Drive. Mayflower Drive
is a municipal right-of-way; it is steep and has a series of curves
with a reverse curve in the rear of the property.
The property is located in the R-10 zone district, but the
properties across the street and adjacent are located in the R-40
2 A-0111-15T2
zone district. The minimum lot size in the R-10 zone is 10,625
square feet, and the minimum lot size in the R-40 zone is 40,000
square feet. The Tenafly Land Development Regulations (LDR)
require a minimum 50-foot lot width at the street line (frontage)
for properties in the R-10 zone, and a minimum 90-foot frontage
in the R-40 zone. LDR Section 35-722.1 contains the following
design standard for a subdivision:
The subdivider shall observe the
requirements and principles of land
subdivision in the design of each subdivision
or portion thereof, as set forth in this
Article. The "New Jersey Residential Site
Improvement Standards" [(RSIS) N.J.A.C. 5:21-
1 to -8.1] are hereby adopted in their
entirety. When such State standards conflict
with those set forth in this ordinance, the
RSIS shall apply.
Regarding safe stopping sight distance and safe intersection sight
distance standards, RSIS requires adherence to the American
Association of State Highway and Transportation Officials (AASHTO)
standards. N.J.A.C. 5:21-4.19(b).
In 2004, plaintiff filed an application to subdivide the
property into two lots: proposed Lot 3.01 would measure
approximately 18,548 square feet; and proposed Lot 3.02 would
measure approximately 15,159 square feet (the 2004 application).
A survey prepared by plaintiff's expert engineer and land surveyor,
Hubschman Engineering, P.A., showed the property ended at the
3 A-0111-15T2
right-of-way line of Mayflower Drive, creating a frontage of only
41.68 feet at the street line of Mayflower Drive. This resulted
in a deficiency of approximately nine feet or approximately
seventeen percent of the minimum required lot frontage. Thus,
plaintiff sought a lot width variance. Plaintiff also sought a
variance for encroachment into steep slope areas in excess of
twenty-five percent for the rear of proposed Lot 3.02. After
several hearings, plaintiff withdrew the application.
In June 2007, plaintiff applied for a permit to construct a
swimming pool and patio on the property and a driveway in the rear
of the property that would provide ingress and egress from
Mayflower Drive. Contrary to the 2004 application, plaintiff's
plan for the permit showed no steep slopes in excess of twenty-
five percent in the rear of the property near the location of the
driveway, indicating that plaintiff had leveled the backyard.
Although a permit was issued for all of the work (the 2007 permit),
plaintiff only constructed the driveway at the rear of the
property.
In 2010, plaintiff filed a new application to subdivide the
property into two lots: proposed Lot 3.01 would measure
approximately 17,625 square feet, contain the existing single-
family home, and front Elkwood Terrace; and proposed Lot 3.02
would measure approximately 16,084 square feet and would front
4 A-0111-15T2
Mayflower Drive (the 2010 application). Plaintiff asserted that
the subdivision required no variance because the frontage for
proposed Lot 3.02 at the street line of Mayflower Drive was
approximately 66.69 feet, not 41.68 feet. Nevertheless, plaintiff
included a request for a variance, if necessary.
Plaintiff had retained a new expert engineer and land
surveyor, Steven Koestner, who prepared a new survey in November
2009. Koestner testified that the 66.69-foot frontage at the
street line of Mayflower Drive differed from the 41.68-foot
frontage in the Hubschman survey because he had located a stone
monument in the northwest corner of the property at the
intersection of Elkwood Terrace and Bliss Avenue. Koestner
explained that plaintiff's deed had a call for the property and
when he followed the call from the newly discovered stone monument,
he found the property line extended approximately 2.7 feet into
the right-of-way of Mayflower Drive, which produced a frontage at
the street line of Mayflower Drive of approximately 66.69 feet.
A neighboring objector's expert surveyor and planner, James
Sens, testified that Mayflower Drive is equivalent to a monument
call; however, a call to a monument only controls in the event of
an inconsistency or ambiguity with a metes and bounds description
in a deed or geometry. Sens explained that even if Koestner's
description of the property starting at a stone monument and going
5 A-0111-15T2
366 feet was correct, the metes and bounds description in
plaintiff's deed specifically recited that the property extended
"to a point on the westerly street line of Mayflower Drive" and
then went up to and along Mayflower Drive on its second course,
not into Mayflower Drive. Sens opined that "the call in the deed
is . . . clear, and the call is to Mayflower Drive, so . . . the
terminus of that course is Mayflower Drive." Accordingly, Sens
testified that under the priority of calls among surveyors, the
property only went to the right-of-way line of Mayflower Drive
because Mayflower drive acts as a monument. Sens concluded that
the frontage along Mayflower Drive was 41.68 feet, thus
necessitating a variance from the minimum required street
frontage.
Sens also testified that no property owner would have an
expectation that their property would extend into a municipal
right-of-way. He emphasized that plaintiff's deed referenced a
survey showing the property line ended at the right-of-way of
Mayflower Drive, and the description in plaintiff's deed and the
deed of a predecessor in title did not start at a stone monument
or even reference a stone monument. Thus, Sens concluded that the
property's easterly property line extended up to but not into the
right-of-way of Mayflower Drive.
6 A-0111-15T2
The Board's expert engineer and surveyor, David Hals, agreed
with Sens that there is a priority of calls and plaintiff's deed,
regardless of how the lot was created in the past, only
contemplated that the property line extended to and not into the
right-of-way of Mayflower Drive. Hals advised the Board that it
need not determine the lot's overall size or consider title
determinations; rather, the Board had to determine where the
easterly side of the property ended.
Plaintiff's transportation and planning expert, Hal Simoff,
addressed the issue of safe ingress and egress from proposed Lot
3.02 along Mayflower Drive. Simoff reviewed the AASHTO standards
to determine adequate sight distances. Simoff testified that
although the speed limit on Mayflower Drive was twenty-five-miles-
per-hour, the design speed of the curve on Mayflower Drive as per
AASHTO design standards was twenty miles-per-hour. Based on that
design speed, Simoff determined that the required stopping
distance for vehicles exiting from the property onto Mayflower
Drive was 109 feet as mandated by AASHTO. Simoff testified that
the site distance from the proposed driveway was approximately 150
feet, subject to removal of the vegetation/landscaping within the
right-of-way in front of the objector's adjacent lot on Mayflower
Drive that blocked the view of the driveway. Simoff also testified
7 A-0111-15T2
that Mayflower Drive should be signed with a speed limit of twenty
miles-per-hour.
The objector testified that he removed the
vegetation/landscaping within the municipal right-of-way to the
satisfaction of the Borough's Director of Public Works.
The objector's expert traffic engineer, Henry Ney, testified
that when reviewing the proposed driveway location, sight distance
is the primary concern from a safety and traffic perspective. He
testified that the RSIS governed because this was a subdivision
application, and the RSIS relies on the same AASHTO standards that
Simoff relied on. Ney explained in his expert report that AASHTO:
recommends that each driveway intersection
provide both [s]topping and [i]ntersection
[s]ight [d]istances. Stopping [s]ight
[d]istance is the distance needed to see to
bring a vehicle to an emergency stop. It is
the sum of the distance travelled during brake
reaction time (time from seeing [an] object
to actually applying brakes) and braking
distance. Intersection [s]ight [d]istance is
the time to permit the driver to anticipate
and avoid potential collisions. Both
[i]ntersection and [s]topping . . . or
si[ght] distances are based on vehicle
approach and roadway grades.
Ney testified that an appropriate speed and the grade of the
road must first be determined in order to assess the adequacy of
sight distance. Ney noted that Simoff used twenty miles-per-hour
in his traffic study analysis, which was an improper speed for
8 A-0111-15T2
determining appropriate sight distances along Mayflower Drive
because the posted speed limit was twenty-five-miles-per-hour, and
industry standards indicated that speeds at least five-miles-per-
hour over the posted speed limit should be used. In addition, the
Chief of Police suggested that any analysis not use less than
twenty-five-miles-per-hour.
Ney opined that the sight distance measured at the curb line
of Mayflower Drive was only marginally better than the sight
distance measured from the property line; however, in either
instance, the stopping distance and intersection distance for the
proposed driveway was not safe. Ney concluded that the safe
stopping sight distance from the driveway was 147 feet to the left
toward Elkwood Terrace and 165 feet to the right in an easterly
direction on Mayflower Drive. The minimum intersection sight
distance was 240 feet to the left toward Elkwood Terrace and 308
feet to the right easterly along Mayflower Drive. Based on his
field measurements, Ney found that the sight distance to the left
toward Elkwood Terrace was only 85 feet and 180 feet to the right
easterly on Mayflower Drive. Thus, he concluded the driveway did
not meet the safe stopping sight distance and intersection sight
distance, and thus violated the AASHTO safe stopping sight distance
and intersection sight distance standards, thereby failing to
provide minimum design and safety requirements.
9 A-0111-15T2
Ney also testified that at the time of his investigation,
there was no vegetation within the right-of-way of Mayflower Drive
blocking sight distances. Ney noted that Simoff had found the
sight distance to be 150 feet within the right-of-way if the
vegetation was cleared. Ney testified that he measured the sight
distance after the vegetation was cleared and it was only 85 feet.
Lastly, Ney noted that when a vehicle was at the curb line of
Mayflower Drive rather than at plaintiff's property line, the
sight distance was increased to 105 feet. He concluded, however,
it made no difference, as in either case the safe sight distance
criteria for stopping sight distance and intersection sight
distance was not met.
In a December 14, 2011 resolution, the Board made detailed
findings and denied the 2010 application and variance. The Board
first found that the property ended at the right-of-way of
Mayflower Drive. The Board noted that plaintiff's deed had a call
for the property up to the westerly street line of Mayflower Drive;
plaintiff could not have expected that the property extended beyond
the right-of-way; plaintiff's deed did not reference a stone
monument; and the LDR's definition of "lot area" did not include
10 A-0111-15T2
any portion of a right-of-way.1 The Board expressed its skepticism
that plaintiff found a stone monument several years after
withdrawing the 2004 application, which shifted the property line
and thus removed the variance impediment to the 2010 application.
The Board found that the 41.68-foot frontage for proposed Lot
3.02 represented an approximately eighteen percent deficiency in
required lot width at Mayflower Drive, which was a substantial
deviation from the requirements of the LDR. Accordingly, the
Board concluded that a variance was required for lot width at the
street line of Mayflower Drive.
The Board explained why it found Ney's testimony more credible
than Simoff's testimony. The Board concluded that the application
did not comply with RSIS or with minimum design and safety
standards because the driveway failed to meet stopping sight
distance completely, intersection sight distance partially, and
provide minimum design and safety requirements.
The Board noted that there was an existing driveway
constructed on the property as a result of the 2007 permit. The
Board emphasized that the 2007 permit was issued without Board or
Board of Adjustment review, and the RSIS safety standards governed
1
Section 35-201 of the LDR defines "lot area" as "the area
contained within the lot lines of a lot, but shall not include any
portion of a right-of-way."
11 A-0111-15T2
the 2010 application. Thus, the Board concluded that the driveway
was not grandfathered in, nor did it give plaintiff any rights in
connection with the 2010 application.
The Board determined that plaintiff failed to satisfy the
positive and negative criteria for a variance under N.J.S.A.
40:55D-70c(1). Regarding the positive criteria, the Board
rejected plaintiff's argument that the curvature of Mayflower
Drive was a unique physical feature of the property that caused
an undue hardship. Rather, the Board found that the physical
features of Mayflower Drive bore directly on the problems with
safe sight and stopping distances, and those features directly
affected the Board's determination that the driveway was not safe.
The Board also found that plaintiff failed to demonstrate
exceptional or practical difficulties on the property. The Board
emphasized that plaintiff purchased the property as one lot, and
should not have been surprised that the property did not extend
into the right-of-way of Mayflower Drive because the deed noted
the property extended up to the street line of Mayflower Drive,
and a survey was referenced in the deed. The Board noted that
plaintiff could still use the property for a home, build a large
house, or add a pool or tennis court. The Board also noted that
plaintiff sought a construction permit for a pool and patio, but
12 A-0111-15T2
never constructed them. Thus, the Board concluded any hardship
was self-created.
The Board also determined that the property was not so unique
as to create a hardship. The Board found the property was on a
sloped lot which was similar to a very substantial portion of
Tenafly on the East Hill, and therefore, not unique to the
property. The Board also found that the eighteen percent deviation
from the frontage requirement was substantial, and this was
particularly notable in that the R-40 zone is right across the
street and adjacent from the property along Mayflower Drive, and
the R-40 zone requires a minimum 90-foot frontage. The Board
concluded it would not be good practice to create even smaller lot
widths when the property was adjacent to an even larger zone
district.
Regarding the negative criteria, the Board found as follows:
The safety issues presented above
concerning the safe stopping sight distance
and safe intersection sight distances present
very real concerns and demonstrate to the
Board that it would not be appropriate to
subdivide this property and place another
house with an active driveway onto that
location. Not only would it be a violation
of RSIS, but it would be a substantial
detriment to the public health and safety.
Thus, the applicant cannot satisfy the
negative criteria for variance relief.
13 A-0111-15T2
Plaintiff filed a complaint in lieu of prerogative writs
against the Board, the Borough of Tenafly (Borough), and other
defendants. As to the Board, plaintiffs sought to overturn the
denial of the 2010 application and variance. As to the Borough,
plaintiffs asserted a claim of wrongful taking.
In a bifurcated proceeding, Judge Menelaos W. Toskos resolved
plaintiff's claims against the Board. In an October 22, 2012
written opinion, the judge affirmed the Board's decision. The
judge examined the record to determine if there was a basis to
grant a c(1) variance. Regarding the positive criteria, the judge
noted that the property presently conformed to all local
ordinances; plaintiff treated the property as one lot; and the lot
could accommodate expansion of the present house, a bigger house,
and a pool and patio. The judge also noted that the property
presently complied with the 50-foot frontage requirement, and the
lack of frontage in the rear of the property did not prevent
plaintiff from utilizing the entire property. The judge concluded
that the claimed undue hardship was self-created, as it will only
arise if the property is subdivided and if the proposed Lot 3.02
fronts Mayflower Drive.
Regarding the negative criteria, Judge Toskos found the
record supported the Board's determination that the driveway would
be a detriment to the public good. The judge concluded the record
14 A-0111-15T2
supported the Board's decision to deny the 2010 application and
variance, and the decision was not arbitrary, capricious, or
unreasonable.
Plaintiff filed an appeal, which we dismissed as
interlocutory. Plaintiff then proceeded against the Borough.
Plaintiff retained a new surveyor, who prepared a new survey in
June 2013, which now showed the frontage was 54.2 feet along
Mayflower Drive. Armed with this new expert and survey, and having
obtained a default against the Borough, plaintiff appeared at an
uncontested proof hearing before Judge Lisa A. Firko. In a July
23, 2015 judgment and written opinion, the judge ordered the
Borough to set a new right-of-way line on Mayflower Drive at 54.2
feet consistent with the new survey. However, the judge did not
order the Borough to compel the Board to change its denial of the
2010 application or variance.
On September 2, 2015, plaintiff filed an appeal from Judge
Toskos' October 22, 2012 judgment affirming the Board's denial of
the 2010 application and variance. On appeal, plaintiff argues a
c(1) variance is not required because Judge Firko established the
frontage along Mayflower Drive at 54.2 feet as a matter of law.
Plaintiff also argues that: (1) the burden of proof for a c(1)
variance was met; (2) even if the frontage was deficient, the
deficiency was de minimus; (3) the Board made an improper
15 A-0111-15T2
determination as to the safety of the driveway on Mayflower Drive;
(4) the Board's reliance on Ney was arbitrary, capricious, and
unreasonable; and (5) the Board's legal determination that a
variance was needed is not entitled to any presumption of validity.
We review the Board's decision using the same standard as the
trial court. Cohen v. Bd. of Adjustment of the Borough of Rumson,
396 N.J. Super. 608, 614-15 (App. Div. 2007). Like the trial
court, our review of a planning board's decision is limited. Smart
SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152
N.J. 309, 327 (1998). "[B]ecause of [its] peculiar knowledge of
local conditions," the Board's factual findings are entitled to
substantial deference and are presumed valid. Burbridge v. Twp.
of Mine Hill, 117 N.J. 376, 385 (1990) (quoting Medici v. BPR Co.,
107 N.J. 1, 23 (1987)). We give deference to a planning board's
decision and reverse only if its action was arbitrary, capricious,
or unreasonable. Zilinsky v. Zoning Bd. of Adjustment of Verona,
105 N.J. 363, 367 (1987). In reviewing a planning board's
decision, we must determine whether it was reasonably supported
by the record. Nextel of New York, Inc. v. Borough of Englewood
Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 38 (App. Div. 2003).
We give even greater deference to a planning board's decision
to deny a variance in preservation of a zoning plan. Ibid. Where
a planning board has denied a variance, the applicant must prove
16 A-0111-15T2
that the evidence before the board was "overwhelmingly in favor
of the applicant." Ibid. (quoting Ne. Towers, Inc. v. Zoning Bd.
of Adjustment of W. Paterson, 327 N.J. Super. 476, 494 (App. Div.
2000)). The Board's conclusions of law, however, are subject to
de novo review. Nuckel v. Little Ferry Planning Bd., 208 N.J.
95, 102 (2011) (citation omitted).
We decline to address plaintiff's argument that a variance
is not required because Judge Firko established the frontage along
Mayflower Drive at 54.2 feet as a matter of law. Our review is
limited to the record before the Board. Kempner v. Edison, 54
N.J. Super. 408, 417 (App. Div. 1959). In addition, we do not
address issues not raised before the trial court that are not
jurisdictional in nature or substantially implicate the public
interest. Zaman v. Felton, 219 N.J. 226-27 (2014) (citation
omitted). We also will not consider documents not presented to
the Board or Judge Toskos. See N.J. Div. of Youth & Family Servs.
v. M.M., 189 N.J. 261, 278 (2007). Accordingly, we focus on the
issues relating to the appeal of the October 12, 2012 judgment.
To obtain a "c" variance, the applicant must satisfy the
"positive criteria" and "negative criteria" embodied in N.J.S.A.
40:55D-70c(1). Cell S. of N.J. v. Zoning Bd. of Adjustment, 172
N.J. 75, 82 (2002). The burden of proving the positive and
17 A-0111-15T2
negative criteria for a "c" variance lies with the applicant. See
Ten Stary Dom P'ship. v. Mauro, 216 N.J. 16, 30 (2013).
"A c(1) variance requires proof of the 'positive criteria,'
which are predicated on 'exceptional and undue hardship' because
of the exceptional shape and size of the lot." Lang v. Zoning Bd.
of Adjustment of No. Caldwell, 160 N.J. 41, 55 (1999) (citation
omitted). To satisfy the "positive criteria," the applicant must
show
(a) by reason of exceptional narrowness,
shallowness or shape of a specific piece of
property, or (b) by reason of exceptional
topographic conditions or physical features
uniquely affecting a specific piece of
property, or (c) by reason of an extraordinary
and exceptional situation uniquely affecting
a specific piece of property or the structures
lawfully existing thereon, the strict
application of any regulation pursuant to
[N.J.S.A. 40:55D-62 to -68.6] would result in
peculiar and exceptional practical
difficulties to, or exceptional and undue
hardship upon, the developer of such property,
grant, upon an application or an appeal
relating to such property, a variance from
such strict application of such regulation so
as to relieve such difficulties or hardship[.]
[N.J.S.A. 40:55D-70c(1).]
An applicant must show that exceptional or undue hardship will
result if the variance is not granted. Chirichello v. Zoning Bd.
of Adjustment, 78 N.J. 544, 552 (1979). What is essential is that
18 A-0111-15T2
the unique condition of the property must be the cause of the
hardship claimed by the applicant. Lang, supra, 160 N.J. at 56.
The hardship criteria of a c(1) variance is unaffected by
personal hardship, financial or otherwise. Ten Stary Dom P'ship.,
supra, 216 N.J. at 29. The focus is "whether the strict
enforcement of the ordinance would cause undue hardship because
of the unique or exceptional conditions of the specific property."
Lang, supra, 160 N.J. at 53. The hardship standard does not
require the applicant to prove that without the variance the
property would be zoned into inutility. Id. at 54. The applicant
need only demonstrate that the property's unique characteristics
inhibit the extent to which the property can be used. Id. at 55.
A c(1) variance is not available to provide relief from a self-
created hardship. Chirichello, supra, 78 N.J. at 553. Where the
hardship has been created by the applicant, a (c)(1) variance will
normally be denied. Jock v. Zoning Bd. of Adjustment, 184 N.J.
562, 591 (2005).
To satisfy the "negative criteria," the applicant must
demonstrate that: (1) the application relates to a specific piece
of property; (2) the purposes of the Municipal Land Use Law,
N.J.S.A. 40:55D-1 to -129, would be advanced by a deviation from
the zoning ordinance requirement; (3) the variance can be granted
without substantial detriment to the public good; (4) the benefits
19 A-0111-15T2
of the deviation would substantially outweigh any detriment; and
(5) the variance will not substantially impair the intent and
purpose of the zone plan and zoning ordinance. Jacoby v. Englewood
Cliffs Bd. of Adjustment, 442 N.J. Super. 450, 451 (App. Div.
2015); see also N.J.S.A. 40:55D-70c(1).
The "negative criteria" is not satisfied where "merely the
purposes of the owner will be advanced." Kaufmann v. Planning Bd.
of Warren, 110 N.J. 551, 563 (1988). Rather, the community must
actually receive a benefit due to the fact that the variance
represents a better zoning alternative for the property. Ibid.
Thus, the focus of the "negative criteria" is on the
characteristics of the land that present an opportunity for
improved zoning and planning for the benefit of the community.
Ibid. The "negative criteria" also focuses on the impact that the
variance will have on the specific adjacent properties affected
by the deviations from the ordinance, Lang, supra, 160 N.J. at
57, as well as any detriment to the zoning plan. Kaufmann, supra,
110 N.J. at 565.
The record amply supports Judge Toskos's and the Board's
finding that plaintiff failed to demonstrate the "positive
criteria" for a c(1) variance. Plaintiff's property is not unique
and contains no exceptional conditions or characteristics that
inhibit the extent to which the property can be used. Plaintiff
20 A-0111-15T2
purchased and treated the property as one lot that, as per the
deed and referenced survey, extended up to the street line of
Mayflower Drive. Plaintiff used the lot for residential purposes
and can continue to use the entire lot for that purpose. The lot
conforms with the LDR, and there is nothing on the lot itself that
is the cause of the claimed hardship. Rather, the proposed
subdivision and need for a variance creates the hardship. See
Chicalese v. Monroe Twp. Planning Bd., 334 N.J. Super. 413, 417
(Law Div. 2000). Thus, the alleged hardship is self-created.
In addition, plaintiff asserts that the curvature of
Mayflower Drive creates a hardship. However, difficulties created
by an off-site condition provide no basis for c(1) variance relief.
Menlo Park Plaza v. Woodbridge, 316 N.J. Super. 451, 461 (App.
Div. 1998). Accordingly, plaintiff failed to satisfy the "positive
criteria" and is not entitled to c(1) variance relief.
The record also amply supports Judge Toskos's and the Board's
finding that plaintiff failed to demonstrate the "negative
criteria" for a c(1) variance. The driveway serves only
plaintiff's purpose, see Kaufmann, supra, 110 N.J. at 563, and it
fails to meet stopping sight distance completely, intersection
sight distance partially, or provide minimum design and safety
requirements. The driveway creates an unsafe condition that would
be a detriment to the public health and safety.
21 A-0111-15T2
We have considered plaintiff's remaining arguments in light
of the record and applicable legal principles and conclude they
are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). We are satisfied that the record
amply supports the Board's decision to deny the 2010 application
and variance, and the Board's decision is not arbitrary,
capricious, or unreasonable.
Affirmed.
22 A-0111-15T2