PETER D. CAMPANA VS. TOWNSHIP OF LONG BEACH LAND USE BOARD (L-0309-16, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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 parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0762-17T1

PETER D. CAMPANA and

MARGARET C. CAMPANA,

Plaintiffs-Appellants,

v.

TOWNSHIP OF LONG BEACH

LAND USE BOARD, TOWNSHIP

OF LONG BEACH, RONALD

PINGARO, JAMES DECICCO,

and ANGELINE DECICCO,

Defendants-Respondents.

______________________________

Argued February 4, 2019 – Decided July 29, 2019

Before Judges Messano and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law

Division, Ocean County, Docket No. L-0309-16.

Peter M. Campana, argued the cause for appellants

(Peter D. Campana and Margaret C. Campana, on the

pro se brief).

Adolph P. Sicheri argued the cause for respondent

Township of Long Beach Land Use Board (Sicheri &

Sicheri, PC, attorneys; Adolph P. Sicheri, of counsel

and on the brief).

Tennant D. Magee, Sr. argued the cause for respondents

Township of Long Beach and Ron Pingaro (Tennant

Magee Law, attorneys; Tennant D. Magee, Sr., on the

brief).

Kenneth L. Lieby, Jr., argued the cause for respondents

James DeCicco and Angeline DeCicco (Shackleton &

Hazeltine, attorneys; Richard J. Shackleton and Russell

J. Hems, on the brief).

PER CURIAM

Plaintiffs Peter and Margaret Campana appeal from a July 19, 2017 Law

Division order, granting partial summary judgment against them, and an August

17, 2017 order, entering judgment on their complaint in lieu of prerogative writs

in favor of their neighbors, defendants James and Angeline DeCicco, as well as

the Township of Long Beach (Township), the Township's Land Use Board

(Board), and the Township's Zoning Director (collectively, the Township

defendants). The orders essentially rebuffed plaintiffs' attempt to reverse the

Board's grant of bulk variances to the DeCiccos, compel the Township

defendants to correct alleged violations and enforce zoning and construction

ordinances against the DeCiccos, and require the DeCiccos to abate a nuisance

by removing an alleged "spite fence." For the reasons that follow, we affirm.

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I.

Plaintiffs are the owners of a single-family residence located at 15 West

Mississippi Avenue in the Township. Defendants James and Angeline DeCicco

are the owners of the property located at 17 West Mississippi Avenue, adjacent

to the Little Egg Harbor Bay. Both properties are immediately adjacent to one

another, share a common boundary, and are located in the R-35 zone. In

December 2009, the DeCiccos filed plans with the Township Construction

Office to demolish the existing structure and build a new residential structure

on their property. The Township initially rejected the DeCiccos' plan because

the proposed lot coverage exceeded the thirty-three-and-one-third percent

maximum lot coverage permitted in the R-35 zone. The DeCiccos submitted a

revised plan that, among other things, reduced the lot coverage to 33.2%. The

revised plan was approved and a building permit was issued on December 24,

2009, by Ron Pingaro, the Township's Director of Construction and Zoning.

Thereafter, the DeCiccos submitted another revised plan, which was

approved on July 26, 2010, with certain changes. The changes required the

DeCiccos to reduce the deck stairway to three feet wide, reduce the front porch

area, and reduce the rear deck. However, the DeCiccos were permitted to

construct an open arbor/pergola on one side of the deck. Ultimately, the

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DeCiccos constructed a deck stairway that was four feet, rather than three feet,

wide. Although they reduced the deck size negligibly, they marginally increased

the size of the open arbor/pergola. While the DeCiccos' house was under

construction, plaintiffs complained to Township zoning officials orally and in

writing that, due to the expanded deck, the property exceeded the maximum lot

coverage, "represent[ing] a change to the originally submitted plot plan and a

violation of the . . . Township['s] maximum allowable land coverage ordinance."

Nonetheless, after the house was built, the DeCiccos submitted an as-built

survey to the Township, which was approved, and, on November 9, 2010, the

Township issued the DeCiccos a certificate of occupancy (CO).

In a February 13, 2015 letter, plaintiffs renewed their complaint to the

Township regarding the DeCiccos' deck exceeding the permissible lot coverage.

Plaintiffs also identified additional alleged violations on the DeCiccos' property

for which they sought the Township's intervention, including the DeCiccos '

"[i]nstallation of an additional piling on the northeast corner of the . . . building"

without the requisite permits, and the "[i]nstallation of two . . . freestanding

flagpoles" and "thirteen . . . posts, each exceeding six . . . feet in height" in

violation of various Township ordinances. Following a field inspection, Pingaro

found no violations and notified plaintiffs accordingly. Specifically, Pingaro

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explained that "[o]pen pergolas do not count as lot coverage" and the additional

piling was "needed to carry [and] support [the] additional framing for [the] open

pergola framing on [the] northeast corner" of the deck. Further, according to

Pingaro, no permits were required for the flagpoles or the "posts."

On September 17, 2015, the DeCiccos submitted a bulk variance

application to the Board, requesting relief from the thirty-three-and-one-third

percent lot coverage requirement and the twenty-foot rear setback requirement.

The variance would permit the DeCiccos to essentially expand their deck by

covering the pergola area with deck flooring. Because the pergola area

measured about seven feet by nine feet, for a total of sixty-three square feet,

covering it would exceed the lot coverage requirement. The variance would also

permit the DeCiccos to retain their existing stairs, which were constructed

twenty feet to the bulkhead line, but 19.4 feet to the property line, thus violating

the rear setback requirement by .6 feet. When constructed, the DeCiccos

mistakenly believed the deck stairs complied with the twenty-foot setback

requirement because they were measured from the bulkhead, rather than the

property, line. The DeCiccos also explained in their application that when they

constructed the new house in 2010, "[t]he lower rear deck was not squared off

although the framing and support beams [were] in place." Thus, they sought "to

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merely extend the portion of their deck to be in line with" the entire width and

length of the deck structure to make it one continuous rear deck.

On November 12, 2015, the Board conducted a hearing on the DeCiccos'

application, during which James DeCicco testified that extending the deck

flooring would "aesthetically . . . enhance the rear area, and most importantly[,]

would provide a safer condition" "for [his] grandchildren and great[-

]grandchildren" to exit the sliding door onto the deck. When asked why the deck

was built the way it was with a pergola and railing in the middle of the sliding

door, DeCicco responded that it "was supposed to be a combination of a pergola

and possibly a garden" but "it just never worked out." Plaintiffs and other

residents vehemently opposed the application.

Notwithstanding the opposition, on December 9, 2015, the Board

approved the variance application and adopted Resolution LUB 45-15,

memorializing its approval. In the Resolution, the Board found that:

(1) The [DeCiccos] premises have the dimensions of

[sixty] feet in width by 117.40 feet in depth for a total

lot area of [7044] square feet.

....

(3) The [DeCiccos] are seeking to extend the first

floor deck [seven] additional feet to the end of the

existing pergola.

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(4) The [DeCiccos] require a bulk variance from the

required [twenty] foot rear yard setback as an existing

rear yard setback of 19.40 feet is proposed to the

staircase.

(5) The [DeCiccos] also require a bulk variance from

the maximum permitted lot coverage of [thirty-three-

and-one-third percent] as a lot coverage of 34.1% is

existing and a lot coverage of [thirty-five percent] is

proposed.

The Board acknowledged plaintiffs' objections as follows:

(8) . . . [Plaintiffs] . . . objected to the construction as

proposed because they believed that the condition the

[DeCiccos] are seeking relief from was the result of the

[DeCiccos] not constructing the dwelling in accordance

with their original building plans submitted to the . . .

Township['s] Building [D]epartment.

(9) The Board is mindful of the fact that the "as built"

survey provided by the [DeCiccos] to . . . [the]

Township indicates some minor differences in the plans

submitted by the [DeCiccos] in obtaining their building

permit, but notes that it is common for minor field

adjustments to be made to a dwelling during the course

of construction and that all of the changes made, were

approved by . . . [the] Township [B]uilding

[D]epartment.

(10) The Board notes that there is much animosity

between the [DeCiccos] and [plaintiffs], but that

animosity can[]not be considered by the Board in

reaching its determination, as only the objective facts

presented must be considered by the Board.

In granting the application, the Board made the following findings:

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(11) The Board finds that the construction as proposed

in extending the deck the additional [seven] feet would

square off the existing framing of the deck and would

be a practical, aesthetically pleasing upgrade to the

premises.

(12) The Board finds that the construction of the deck

as proposed will significantly improve the safe egress

of the occupants of the dwelling as it will remove a

potentially dangerous condition.

(13) The Board finds that the addition of the [sixty-

three] square feet of deck as proposed is a de minimis

increase in the lot coverage under the facts of this

application.

(14) The Board finds that the construction as proposed

does not significantly impact on the free flow of light

and air or density or effect the use of the property.

(15) The construction as proposed is an appropriate

use of property in a seashore community but the Board

finds that the deck should remain open and never be

enclosed.

(16) The denial of the variance requested will deprive

the [DeCiccos] of a fair and reasonable use of their

property without any corresponding benefit to the

public good.

On January 29, 2016, plaintiffs filed a four-count complaint in lieu of

prerogative writs against the Township defendants and the DeCiccos. The first

two counts sought an order reversing the Board's decision granting the bulk

variances to the DeCiccos, and requiring "the removal of the offending

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construction[.]" Specifically, the first count alleged that the variance was

unlawfully granted by the Board in violation of N.J.S.A. 40:55D-70(c)(1), which

permits a variance to relieve "undue hardship" caused by

exceptional narrowness, shallowness or shape of a

specific piece of property, or . . . exceptional

topographic conditions or physical features uniquely

affecting a specific piece of property, or . . . an

extraordinary and exceptional situation uniquely

affecting a specific piece of property or the structures

lawfully existing thereon . . . .

Plaintiffs alleged that because the R-35 zone required a lot width of fifty

feet and a square footage of 5000 square feet, and the DeCiccos' property was

sixty feet wide and 7044 square feet, the property was "neither narrow nor

shallow" and had "no unique conditions or physical features affecting the

property." Rather, plaintiffs alleged that any hardship was "unrelated to the

physical characteristics of the land" but was created by the DeCiccos' "unlawful"

construction of "the house, deck[,] and stairway framed per the original 2009

plans that were rejected by the Township Construction Office."

The second count alleged that the variance was unlawfully granted by the

Board in violation of N.J.S.A. 40:55D-70(c)(2), which permits a variance where

there is inadequate evidence of hardship but where the variance would advance

the purposes of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -

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163, "and the benefits of the deviation would substantially outweigh any

detriment[.]" According to plaintiffs, granting a variance for the completion of

a self-induced problem was not beneficial and would not substantially outweigh

the detriment to the neighbors whose "views and use and enjoyment of their

properties" were "negatively affect[ed]" by the expanded "deck and deck

framing."

The third count sought a writ of mandamus to correct the ordinance

violations caused by the DeCiccos constructing "an entire section of the . . . deck

after the 2010 [a]s-built drawing" was approved, and installing "a piling without

a permit . . . , which piling exceeded the local height limitation and interfere[d]

with [p]laintiffs' view and use and enjoyment of [their] property." Plaintiffs

alleged that in addition to the unlawful construction of the decking and piling,

the DeCiccos "built a 'spite fence'" consisting of very tall "landscaping," posts

with birdhouses on top, "a mast," and "flag poles," all tied together with string

to form a boundary fence that exceeded the height limitation for fences. 1

Plaintiffs sought an order requiring the Township defendants to enforce the

1

Throughout the record, there are various iterations of the objects comprising

the alleged "spite fence," all of which apparently refer to the same objectionable

structure. We recite the differing versions throughout this opinion, mindful of

the confusion this may engender.

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Township's zoning and construction ordinances and compel the DeCiccos "to

conform their entire rear deck and stairway" to the R-35 zoning requirements,

including the "size, foot[]print, setback and decking" requirements, and remove

the spite fence.

The fourth and final count was a nuisance claim against the DeCiccos.

Plaintiffs alleged that "[t]he DeCiccos' use of their property" through the

unlawful construction of the deck and piling and the installation of the items

comprising the "spite fence," impaired plaintiffs' view "from the rear of their

[p]roperty," "impaired the use and enjoyment of [p]laintiffs' property," and

"proximately caused injury and harm to [p]laintiffs[]." Plaintiffs sought an order

requiring "the DeCiccos to abate the nuisance by removing the unlawful piling,

birdhouses, fence[,] and landscaping and any other unlawful items that

interfere[d] unreasonably with the use and enjoyment of [p]laintiffs' property."

Following discovery, the Township defendants moved for partial

summary judgment on count three. The DeCiccos joined the application, and

also moved for summary judgment on count four. Plaintiffs opposed the

motions. To support their opposition to the dismissal of count four, Margaret

Campana submitted a certification describing the alleged "spite fence."

According to Mrs. Campana, to replace small trees and bushes, the DeCiccos

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had planted bushes and tall "'evergreen' type" trees, some of which were then

ten to fifteen feet tall, along the boundary between the properties where

plaintiffs had installed a five-foot-high wooden fence. Mrs. Campana stated the

bushes and trees, "that [were] spaced very closely," "often ha[d] branches that

overh[u]ng [their] fence onto [their] property" and "ha[d] grown into [their]

property, under the ground, and compete[d] with" their landscaping.

In addition, Mrs. Campana explained "the DeCiccos installed

[approximately thirteen] posts along the boundary[,]" "each exceeding six feet

in height." "On top of [some of] the posts, the DeCiccos ha[d] placed

birdhouses[,]" and, on others, "the DeCiccos ha[d] placed large hooks, and hung

hanging baskets." According to Mrs. Campana, the DeCiccos then "wrapped

string around the tree-bush-post collection," to "make up a 'spite fence.'"2 Mrs.

Campana explained that "[t]he DeCiccos' spite fence obstruct[ed] the passage of

sun[]light across [their] rear yard." Based on the DeCiccos replacing their

"small[er] trees and bushes" with larger ones, and "continuing to add items" and

"place[]" them "in an unnecessarily high and unattractive way," plaintiffs

believed that the DeCiccos were "doing this to spite [them] for complaining . . .

2

Mrs. Campana said "[t]here was also a flagpole placed right between the joint

boundary and the bulkhead next to the Bay[,]" but "[t]he DeCiccos . . . removed

[it] . . . well after [the] . . . lawsuit was filed."

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about [the] deck expansion, and . . . for the malicious purpose of annoying

[them.]"

Following oral argument, Assignment Judge Marlene Lynch Ford granted

the summary judgment motions in a written decision and memorializing order

issued on July 19, 2017. In her decision, after applying the applicable legal

standard and viewing the evidence in the light most favorable to plaintiffs, the

judge determined there were no genuine issues as to any material fact and the

DeCiccos and the Township defendants were entitled to summary judgment as

a matter of law. As to count four, the judge acknowledged that under Bubis v.

Kassin, 184 N.J. 612, 620 (2005), the court should "look[] to the function of the

[objectionable] structure" to determine whether it constituted a fence. In so

doing, the judge distinguished the "elevated" "sand berm topped with six foot

tall trees" deemed a fence in Bubis from the "plantings, small trees, birdhouses[,]

and poles" in this case.3

3

In Bubis, because the municipality's ordinances failed to provide a definition,

the Court was required to define a fence and, to that end, consulted multiple

sources, including various dictionary definitions. 184 N.J. at 620-21. Although

the definitions varied, the Court discerned "two guideposts for [its] analysis[,]"

namely, that fences are not limited to a certain type of material, and "the user's

intent and the actual function of the structure are dispositive in ascertaining

whether a structure is a fence." Id. at 621. The Court concluded that "[a]s long

as the structure marks a boundary or prevents intrusion or escape, then it is a

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After viewing the photographs relied upon by both parties to support their

respective positions, the judge stated:

[The DeCiccos] note[] that their collection of plantings,

garden ornaments, flagpoles[,] and birdhouses do not

form a barrier through which a person could not

traverse. In fact, the [DeCiccos] maintain that but for

the solid fence erected by . . . [p]laintiff[s] on the

property line, the conditions on the [DeCiccos']

property, about which . . . [p]laintiffs complain, do not

impede the view or the ability to traverse the property

line.

The judge concluded "[t]he plantings and other items . . . do not function

as a barrier or a fence" and "therefore . . . do not constitute a fence," as

contemplated in Bubis. The judge continued that while bound by Bubis, "[t]he

holding in Bubis . . . [was] limited to the unique structure presented in that case,

the function of which was to prevent intrusion or escape," and "to circumvent

the height restrictions in the fence ordinance[.]" "By contrast, the alleged barrier

of the plantings, the poles with and without bird houses, and other physical

objects which were installed by the [DeCiccos] over the course of time, does not

function primarily as a fence which would impede ingress and egress from the

fence, regardless of the material from which it is forged." Ibid. In its application

of its definition of a fence to the objectionable structure in the case, the Court

considered the "use and placement of the barrier at issue," "the size and position

of trees," in addition to the "span, height, and location" of the alleged fence. Id.

at 623.

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property." In addition, the judge noted "this [S]tate does not recognize 'spite

fences' as actionable, since conditions on land and the use of land [are] subject

to state laws and local ordinances." Thus, according to the judge, "[t]he intent

of the property owner is not a relevant consideration."

Further, in rejecting plaintiffs' contention "that the unpleasant or

aesthetically unpleasing appearance of the [DeCiccos'] property constitute[d] a

private nuisance," entitling plaintiffs "to injunctive or other relief[,]" the judge

explained that there was no "evidence that the alleged wrongful conduct or

condition invade[d plaintiffs'] property," and the complaints were solely "based

upon the subjective opinion of . . . [p]laintiffs." Additionally, "even if

unappealing to [p]laintiff[s]," there was "no dispute" that "the condition of the

property did not create a hazard or health concern, and the Township did not

issue any code violations." Thus, according to the judge, plaintiffs' nuisance

claim "based upon the maintenance or establishment of a public nuisance" also

failed.

Turning to count three, the judge articulated the crux of plaintiffs'

contentions as follows:

(i) the piling supporting the deck extension . . . was

installed in violation of Section 64-11 of the Township

Code; (ii) the spite fence . . . made up of trees, bushes,

posts (with birdhouses)[,] and the boundary-flagpole

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installed near the bulkhead area, conjoined . . . with

string, which together comprise[] a boundary fence . . .

exceeded the five-foot height limitation for fences in

Section 205-51(A)(1) of the Township Code; and (iii)

the flagpoles, including the tri-arm mast, installed

within [ten] feet of the rear setback from the bulkhead

line, are in violation of Section 205-11(C)(1) of the

Township Code.

In rejecting plaintiffs' allegations of Code violations, the judge agreed

with the Township defendants that under the Township's newly enacted

ordinance, clarifying the setback requirements contained in Section 205-11,

"neither the mast [n]or flagpoles [were] in violation of the Township Code."

Specifically, Ordinance 17-01C, adopted on February 6, 2017, "permits

flagpoles and decorative posts to encroach into the front, side, and rear yard

setbacks of lots as regulated by Section 205-11 of the Township Code." Further,

the judge explained that "[t]he issues about the 'spite fence' [were] rendered

moot by the [c]ourt's determination that the collection of plantings and physical

objects [did] not constitute a fence[,]" and "the issue of whether or not the piling

was wrongfully installed more than seven years ago [was] untimely[.]"

Moreover, according to the judge, "whether or not the structure should be

removed or revised" would be determined at the trial on counts one and two

"challeng[ing] the variance approvals."

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Thereafter, a trial de novo on the record on the two remaining counts was

conducted on August 15, 2017. In a written decision and conforming order

issued on August 17, 2017, Judge Ford entered final judgment in favor of

defendants and dismissed plaintiffs' complaint with prejudice. In her decision,

noting that plaintiffs challenged the variance on the ground that it did not comply

with the requirements of either N.J.S.A. 40:55D-70(c)(1) or (2), (hereafter a

(c)(1) or (c)(2) variance), the judge summarized plaintiffs' arguments as follows:

Plaintiffs allege the evidence presented did not

justify the grant of variance relief. . . . Plaintiffs

allege[] that the home was not constructed as

represented in the plans, and that any hardship to the

[DeCiccos] was a self-created hardship, and should not

have been a basis for the grant of a bulk variance.

Plaintiffs allege that in addition to inadequate evidence

of undue hardship, [the DeCiccos] failed to show the

variance would not result in a substantial detriment to

the public good, or the zone plan. Moreover,

[p]laintiffs claim no evidence was presented during the

hearing or in the written application that granting the

variance would further any of the purposes of the

MLUL or that the [DeCiccos] would be deprived of fair

and reasonable use of their property i[f] the variances

were not granted.

Citing Lang v. Zoning Board of Adjustment of the Borough of North

Caldwell, 160 N.J. 41, 55 (1999), the judge acknowledged that a variance under

subsection (c)(1) "requires proof of the 'positive criteria,' which are predicated

on 'exceptional and undue hardship'" to the applicant "that may inhibit the extent

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to which the property can be used" "because of the exceptional shape and size

of the lot." However, according to the judge, under Lang, whether a bulk

variance "is requested under [s]ubsection (c)(1) or (c)(2), the applicant must

satisfy the negative criteria" and show that the variance "can be granted without

substantial detriment to the public good and will not substantially impair the

intent and the purpose of the zoned plan and zoning ordinance." Further, citing

Medici v. BPR Company, 107 N.J. 1, 22 (1987), the judge noted that in

evaluating the negative criteria, "[t]he board must evaluate the impact of the

proposed variance upon the adjacent properties and determine whether or not it

will cause such damage to the character of the neighborhood as to constitu te

'substantial detriment to the public good.'"

After applying the applicable deferential standard of review to zoning

board determinations, and reviewing the resolution of approval for the

administrative findings required under N.J.S.A. 40:55D-10(g), Judge Ford

determined that the Board's grant of the variance was neither "arbitrary,

capricious, [n]or unreasonable[,]" and the resolution was "adequate." Based on

the Board's findings, the judge was satisfied that the DeCiccos established both

the positive and the negative criteria for a variance under either subsection (c)(1)

or (c)(2).

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Regarding the positive criteria, the judge stated:

The Board found that the DeCiccos' [p]roperty [wa]s . .

. . improved by a two-story, single-family home with a

first[-]floor deck/pergola structure and access stairs, all

of which were permitted when constructed and a [CO]

was issued. Both the stairs and the deck/pergola

structure were depicted in the "as built" plans submitted

to the Construction Office at the time the [CO] was

issued. The "as built" plans assumed that the structure

conformed with the zoning requirement. The first[-

]floor deck structure is one structure with the deck

portion having a floor and encompassed by a railing.

The Board heard testimony that explained that the

railing divides the sliding glass door and provides

ingress and egress from the dwelling from the first[-

]floor deck into the bedroom. The Board found this to

be potentially an unsafe condition that should be

corrected for safety purposes. . . . Defendant Board

found that the granting of the variances to permit the

incorporation of the [sixty-three] square[-]foot portion

of the deck structure and the relocation of the railing

will eliminate a potentially hazardous condition, and

that the addition of the [sixty-three] square feet of

coverage under the facts of the application was a

minimal deviation from the Ordinance. . . . The Board

concluded based upon substantial evidence presented

before it that the positive criteria was established. The

[c]ourt concurs with that conclusion.

The judge specifically rejected plaintiffs' argument that the DeCiccos did

not satisfy the hardship requirement for a (c)(1) variance because there was no

unique condition of the property, and the hardship was self-created by the

DeCiccos failing to construct their home in accordance with the plans submitted

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to the Township. Because the Board must consider the existing structure on the

DeCiccos' property as approved by the Township Building Department and the

Township Construction Office by its issuance of the CO in 2010, the judge

agreed "that the peculiar condition of the property was not 'self-created' in the

sense that it should bar the granting of a variance." See Cohen v. Bd of

Adjustment of Borough of Rumson, 396 N.J. Super. 608, 619-20 (App. Div.

2007) (finding that the applicant qualified for a (c)(1) variance despite

constructing a house that "exceeded the zoning ordinance's building coverage

requirements" where "the building permit was issued in the face of incorrect

plans"). Further, the judge agreed "that any claim based upon the issuance of

the CO [was] untimely" inasmuch as "[t]he law require[d] an objection to be

filed within [twenty] days." See N.J.S.A. 40:55D-72.4

4

N.J.S.A. 40:55D-72(a) provides, in pertinent part, that

[a]ppeals to the board of adjustment may be taken by

any interested party affected by any decision of an

administrative officer of the municipality based on or

made in the enforcement of the zoning ordinance . . . .

[and] shall be taken within [twenty] days by filing a

notice of appeal . . . specifying the grounds of such

appeal.

Rule 4:69-6(a), governing the time limitations for actions in lieu of prerogative

writs, provides in pertinent part that "[n]o action in lieu of prerogative writs

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In rejecting plaintiffs' arguments that the Board failed to properly evaluate

the negative criteria, the judge stated:

The Board . . . . found the increase of [sixty-three]

square feet of lot coverage will have no or minimal

impact on the surrounding neighborhood because the

deck structure was already in existence and was not

being enlarged or altered. The Board further noted

there would be no change to the appearance of the

structure, . . . other than covering the exposed parts of

the deck, the pergola, and installing safety railings. The

result will be a more symmetrical and pleasing

appearance. . . .

The Board further argues that the proposed

incorporation of [sixty-three] square feet into the first[-

]floor deck and the retention of the stairs 19.40 feet

from the lot line and [twenty] feet from the bulkhead

[line] will not impact the Master Plan, nor the local

zoning ordinances, as it is a minimal increase of the

deck area and decks are permitted on residential

dwellings in [the] Township.

The Board thus concluded that the variance relief

can be granted without substantial detriment to the

shall be commenced later than [forty-five] days after the accrual of the right to

the review, hearing[,] or relief claimed[.]" These time limitations were "clearly

designed to insulate the recipient of a building permit or other favorable

disposition from the threat of unrestrained future challenge[,]" Sitkowski v.

Zoning Bd. of Adjustment of Borough of Lavallette, 238 N.J. Super. 255, 260

(App. Div. 1990), and run from the date the interested party "knew or shou ld

have known of [a building] permit's issuance." Trenkamp v. Burlington, 170

N.J. Super. 251, 268 (Law Div. 1979). Plaintiffs complained to Township

zoning officials, orally and in writing, about the DeCiccos' expanded deck

exceeding the maximum allowable lot coverage ordinance as early as 2010, yet

failed to perfect a timely appeal to challenge the Township's decision.

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surrounding properties, notwithstanding the objections

interposed by . . . [p]laintiffs. The Board relies upon

the findings in [Lang,] a Supreme Court decision that

promotion of a desirable visual environment and

promotion of safety would promote several purposes of

zoning. This is weighed against any potential detriment

caused by the grant of the variance. The Board found

that the aesthetics would be improved and that a safety

issue would be addressed, without substantial detriment

to the surrounding properties, including that of . . .

[p]laintiffs. This [c]ourt finds substantial evidence in

the record to support that conclusion. Given the

justified deference this [c]ourt affords to the reasoned

decisions of land use boards, there is no basis to set

aside this finding.

This appeal followed from Judge Ford's July 19 and August 17, 2017 orders.

On appeal, plaintiffs raise the following arguments for our consideration:

I. THE [TRIAL] COURT ERRED IN GRANTING

SUMMARY [JUDGMENT] TO DEFENDANTS ON

COUNTS [THREE] AND [FOUR] BECAUSE A

MATERIAL DISPUTE IN OP[E]RATIVE FACT

STILL EXISTED; THE [TRIAL] COURT

MISAPPLIED THE LEGAL STANDARD

SET[]FORTH IN [BUBIS]; AND THE [TRIAL]

COURT MADE A HARMFUL ERROR IN NOT

COMPEL[L]ING THE REMOVAL OF

STRUCTURES LOCATED WITHIN THE

REQUIRED[ TEN] FOOT SETBACK FROM THE

BULK[H]EAD ON THE DECICCO PROPERTY.

A. DEFENDANT DECICCOS FAILED

TO SUBMIT A STATEMENT OF

MATERIAL FACT IN THEIR MOVING

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BRIEF FOR SUMMARY JUDGMENT IN

VIOLATION OF [RULE] 4:46-2.[5]

B. DEFENDANTS ARE NOT ENTITLED

TO A GRANT OF . . . SUMMARY

[JUDGMENT] ON COUNTS [THREE]

AND [FOUR] BECAUSE A MATERIAL

DISPUTE IN FACT EXISTED AS TO

WHETHER OR NOT THE ROW OF

TALL TREES, HIGH POSTS, AND

FLAGPOLES INSTALLED BY [THE]

DECICCOS ALONG THEIR PROPERTY

LINE BETWEEN THEMSELVES AND

. . . PLAINTIFFS CONSTITUTED A

"SPITE FENCE" AS DEFINED IN

[BUBIS].

C. THE [TRIAL] COURT ERRED IN ITS

LEGAL DETERMINATION THAT

[BUBIS] WAS "LIMITED TO THE

UNIQUE STRUCTURE PRESENTED IN

THAT CASE" AS NEITHER THE CASE

ITSELF, NOR ANY OTHER NEW

JERSEY COURT, HAS FOUND . . .

[BUBIS] TO BE LIMITED TO ITS

FACTS.

D. EVEN IF THE [TRIAL] COURT

FOUND THE ROW OF TALL TREES,

HIGH POSTS, AND FLAGPOLES . . .

DID NOT MEET THE LEGAL

DEFINITION OF "SPITE FENCE" OR

5

See Cerame v. Twp. Comm. of Middletown, 349 N.J. Super. 486, 488 (App.

Div. 2002) (finding that, despite the non-movant's opposition to summary

judgment, the procedural deficiency occasioned by the moving party's failure to

include the required statement of material facts, R. 4:46-2(a), was not fatal to

the motion where "there were no disagreements of fact in the briefs").

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"FENCE" AS DEFINED IN [BUBIS],

THE [TRIAL] COURT MADE A

HARMFUL ERROR IN NOT

COMPELLING THE DECICCOS TO

REMOVE ANY REMAINING

STRUCTURES, INCLUDING THE

FLAGPOLE AND POSTS, THAT WERE

INSTALLED BY THE DECICCOS

WITHIN THE REQUIRED [TEN] FOOT

SETBACK FROM THE BULKHEAD.

E. THE [TRIAL] COURT MADE A

HARMFUL ERROR WHEN [IT]

INCORRECTLY DETERMINED

THAT . . . PLAINTIFFS WITHDREW

THEIR OBJECTION TO THE

LOCATION OF THE EXISTING

FLAGPOLE WHEN THEY DID NOT.

INSTEAD, THE PLAINTIFFS

WITHDREW THEIR OBJECT[ION]

SOLELY TO THE FLAGPOLE THAT

WAS REMOVED BY THE DECICCOS

IMMEDIATELY BEFORE THE

DECICCOS FILED THEIR MOTION

FOR SUMMARY JUDGMENT AND

NOT TO THE REMAINING FLAGPOLE

THAT STILL EXIST[ED] ON THE

DECICCO PROPERTY IN VIOLATION

[OF] THE [TEN] FOOT REQUIRED

SETBACK FROM THE BULKHEAD. [6]

II. THERE ARE NO FACTS OR LAW THAT

AUTHORIZE THE . . . BOARD'S GRANT OF A

6

We agree with plaintiffs that the judge mistakenly believed they had

withdrawn their objection to both flagpoles. However, because the judge

concluded that the flagpoles did not violate the setback requirements in the

amended ordinances, this error was of no moment.

A-0762-17T1

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BULK VARIANCE TO THE DECICCOS UNDER

EITHER A [(C)](1) OR A [(C)](2) VARIANCE NOR

SUPPORT THE TRIAL COURT['S] UPHOLDING OF

SAID VARIANCE BY ITS DISMISSAL OF COUNTS

[ONE] AND [TWO].

A. THERE ARE NO FACTS ON EITHER

THE . . . BOARD'S RECORD OR THE

TRIAL COURT RECORD THAT

WOULD SUPPORT THE [BOARD'S]

AUTHORIZATION OF A [(C)](1)

"HARDSHIP" VARIANCE, AND THUS

ISSUANCE OF A [(C)](1) VARIANCE IS

UNLAWFUL.

B. THERE ARE NO FACTS ON EITHER

THE . . . BOARD'S RECORD OR THE

TRIAL COURT RECORD THAT

WOULD SUPPORT [THE BOARD'S] . . .

AUTHORIZATION OF A [(C)](2) "FLEX

C" VARIANCE, THUS ISSUANCE OF A

[(C)](2) VARIANCE IS UNLAWFUL.

C. THE [TRIAL] COURT'S

DETERMINATION THAT THE . . .

BOARD'S DEFENSE THAT IT IS

COLLATERALLY ESTOPPED FROM

REVOKING [THE] . . . TOWNSHIP['S]

AND RONALD PINGARO'S

WRONGFUL ISSUANCE OF A [CO] TO

THE DECICCOS BECAUSE IT IS TIME

BARRED IS REFUTED BY BOTH FACT

AND LAW.

A-0762-17T1

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II.

First, we address plaintiffs' challenge to the judge's summary judgment

decision. We review a grant of summary judgment applying the same standard

used by the trial court. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344,

366 (2016). See Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995). That

standard is well-settled.

[I]f the evidence of record—the pleadings, depositions,

answers to interrogatories, and affidavits—"together

with all legitimate inferences therefrom favoring the

non-moving party, would require submission of the

issue to the trier of fact," then the trial court must deny

the motion. On the other hand, when no genuine issue

of material fact is at issue and the moving party is

entitled to a judgment as a matter of law, summary

judgment must be granted.

[Steinberg, 226 N.J. at 366 (citations omitted) (quoting

R. 4:46-2(c)).]

Applying these principles here, we are satisfied that summary judgment

was properly granted to defendants on counts three and four of plaintiffs'

complaint. Plaintiffs raise the same arguments rejected by Judge Ford in her

July 19, 2017 written decision. We too reject plaintiffs' arguments and affirm

substantially for the reasons articulated in the judge's comprehensive and well-

reasoned decision.

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Turning to plaintiffs' challenge to the entry of judgment against them and

dismissal of their complaint, we first address the standard of review that informs

our consideration of zoning decisions. Municipal zoning boards are allowed

wide latitude in their delegated discretion because of their particular knowledge

of local conditions. Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562,

597 (2005). Thus, the scope of judicial review is limited to determining whether

a zoning board could reasonably have reached its decision on the record, not

whether a better decision could have been made by that board. Ibid. To that

end, neither the trial court nor this court may substitute its judgment for that of

the zoning board. Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369

N.J. Super. 552, 561 (App. Div. 2004).

Although greater deference is given to variance denials, Med. Ctr. at

Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177,

199 (App. Div. 2001), there is a presumption that there was an adequate basis in

the record for a zoning board's conclusions, Lang, 160 N.J. at 58, and the party

challenging the board's decision bears the burden of overcoming this

presumption of validity. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, W.

Windsor Twp., 172 N.J. 75, 81 (2002). Whether a variance applicant has

successfully met the relevant statutory criteria is "entrusted to the sound

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discretion of the municipal boards," Kaufmann v. Planning Bd. for Twp. of

Warren, 110 N.J. 551, 558 (1988), and "courts ordinarily should not disturb the

discretionary decisions of local boards that are supported by substantial

evidence in the record and reflect a correct application of the relevant principles

of land use law." Lang, 160 N.J. at 58-59.

Thus, in reviewing a zoning board's decision on a variance application, a

trial court determines whether the board's decision was arbitrary, capricious,

unreasonable, or constitutes a manifest abuse of its discretionary authority. See

Jock, 184 N.J. at 597; Fallone Props., 369 N.J. Super. at 560. Even where the

court doubts the outcome, it cannot declare the board's action invalid absent a

clear abuse of discretion. Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268,

296-97 (1965). However, determinations of law are subject to de novo review

by the trial court. Fallone Props., 369 N.J. Super. at 561. In turn, we apply the

same standard of review as the trial court. N.Y. SMSA, L.P. v. Bd. of

Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). We

"will give substantial deference to findings of facts, and will overturn

discretionary rulings only if arbitrary and capricious." Cox & Koenig, New

Jersey Zoning and Land Use Administration, § 40-6 (Gann 2019). We owe no

special deference, however, to the trial court's interpretation of the law and the

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legal consequences that flow from established facts. Manalapan Realty, L.P. v.

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

A (c)(1) variance requires a demonstration of hardship due to the physical

characteristics of the lot, the so-called positive criteria. N.J.S.A. 40:55D-

70(c)(1); Chicalese v. Monroe Twp. Planning Bd., 334 N.J. Super. 413, 426-27

(Law Div. 2000). The hardship criteria of a (c)(1) variance is unaffected by

personal hardship, Lang, 160 N.J. at 53, but "financial hardship is not irrelevant

when determining whether a variance grant is warranted." Cohen, 396 N.J.

Super. at 619 (citing Hawrylo v. Bd. of Adj. of Harding Twp., 249 N.J. Super.

568, 581 (App. Div. 1991)). 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, 160 N.J. at 53.

However, a (c)(1) variance does not require a demonstration that the

claimed hardship would result in the inability to make any use of the property.

Kaufmann, 110 N.J. at 562 (quoting Davis Enters. v. Karpf, 105 N.J. 476, 493

(1987) (Stein, J., concurring)). Rather, the burden on the applicant is only to

demonstrate that it may "inhibit the extent to which the property can be used."

Ibid. (quoting Davis Enters., 105 N.J. at 493 (Stein, J., concurring)); see Lang,

160 N.J. at 54 (noting an applicant seeking a (c)(1) variance need not prove "that

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29

without the variance the property would be zoned into inutility"). Moreover, the

analysis for a (c)(1) variance is not properly predicated on whether the applicant

could have constructed a conforming structure. Lang, 160 N.J. at 55. Instead,

the focus should be on whether the narrowness of the lot required the setback

and building coverage variances sought by the applicant. Id. at 56.

In contrast, a (c)(2) variance, often referred to as the flexible (c) variance,

allows departure from the zoning requirement when application of the zone plan

is not advanced and the benefits of the deviation substantially outweigh any

detriment due to the physical characteristics of the property. N.J.S.A. 40:55D-

70(c)(2); Kaufmann, 110 N.J. at 553. A (c)(2) variance is not justified when

"merely the purposes of the owner will be advanced." Kaufmann, 110 N.J. at

563. 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 (c)(2) positive criteria is on the characteristics of the land that

present an opportunity for improved zoning and planning for the benefit of the

community. Ibid. While zoning boards are required to effectuate the goals of

the community's zoning and planning ordinances, id. at 564, "[t]he Legislature

undoubtedly intended through the [(c)](2) variance to vest a larger measure of

discretion in local boards in a limited area of cases." Id. at 566.

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In addition to the positive criteria, an applicant for either a (c)(1) or a

(c)(2) variance must also satisfy the negative criteria required under N.J.S.A.

40:55D-70(d): "[T]hat such variance . . . can be granted without substantial

detriment to the public good and will not substantially impair the intent and the

purpose of the zone plan and zoning ordinance." The negative criteria focuses

on the impact that the variance will have on the specific adjacent properties

affected by the deviations from the ordinance, Lang, 160 N.J. at 57, as well as

any detriment to the zoning plan. Kaufmann, 110 N.J. at 565. Undoubtedly, the

applicant bears the burden of establishing the existence of both the positive and

negative criteria. Betts v. Bd. of Adjustment of Linden, 72 N.J. Super. 213, 217

(App. Div. 1962).

Here, the judge determined there was substantial credible evidence in the

record to support the Board's decision to grant either a (c)(1) or a (c)(2) variance.

In entering judgment in favor of defendants, Judge Ford addressed and rejected

each of plaintiffs' contrary arguments. Likewise, we reject plaintiffs' arguments

and affirm substantially for the reasons stated in Judge Ford's August 17, 2017

written opinion. Plaintiffs' arguments are without sufficient merit to warrant

further discussion. R. 2:11-3(e)(1)(E).

Affirmed.

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