New Jersey Paralegal Services - Sample Municipal Land Use Brief

SAMPLE TRIAL BRIEF TO THE
SUPERIOR COURT OF NEW JERSEY, LAW DIVISION

The following trial brief directed to the Superior Court of New Jersey, Law Division, provided by On-Point Paralegal Services, LLC, as a writing sample. The case was brought by Complaint in lieu of Prerogative Writ concerning the New Jersey Municipal Land Use Law. Personal information has been deleted. We have made every effort to maintain proper format while converting this document to .html code for display on the Internet.

Plaintiff has entered into a contract with non-party XXXX XXXXXXX providing that plaintiff will purchase XXXX XXXXXXX, in the Township of Aberdeen conditioned upon approval by the Township's Zoning Board to build a single family house on the lot. Lot XX is currently vacant, adjacent to another vacant lot and is a eyesore to the community.

Defendant denied plaintiff's request for a variance regarding the fact that, for the most part, the lot is undersized. Defendant found, in part, that Lot XX and Lot XX were merged several years ago. Absolutely no evidence of a merger was presented. There is no evidence of deed restrictions or the like. At the time, Mr. XXXXXXXX and his wife owned Lot XX and Lot XX. Defendant contends that the two lots merged, but defendant allowed Mr. XXXXXXXX to sell Lot XX a few years ago. Mr. XXXXXXXX is now also being permitted to sell Lot XX separately, although defendant will not allow a house to be built on it.

Mr. XXXXXXXX has tried to sell Lot XX to two adjacent property owners. They both declined. Mr. XXXXXXXX and plaintiff have tried on multiple occasions to get one of the adjacent property owners to sell their lot to them so that Lot XX would be large enough to build a house on. Defendant's attorney even sent letters to them to inquire about this. All of the adjacent property owners declined. Defendant denied plaintiff's application for a hardship variance given the fact that unless the variance was granted, the property would be useless indefinately.

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Plaintiff contends in this case, inter alia, that the positive criteria outweigh the negative criteria. The residents of the Township of Aberdeen, especially the owners of the adjacent lots, would benfit from plaintiff's offer to clean up what is currently an eyesore to the community and is diminishing property values. The lot will be a permanant eyesore unless someone is permitted to build on it. The lot will generally have no value if it cannot be built on.

Plaintiff desires to build a small 1,600 square foot house on the lot. These positive criteria outweigh the negative criterion that the lot is undersized. Defendant's merger argument has absolutely no merit. Even if it did and defendant sought to punish Mr. XXXXXXXX for selling the lots separately, making it so the property has no value and is an eyesore is contrary to the intent of the Municipal Land Use Law. If defendant wants to penalize Mr. XXXXXXXX, it should not also penalize the surrounding community at the same time.

On July 19, 2006, plaintiff, the buyer, and Wadger XXXXXXXX, Jr., the seller, entered into a contract for the purchase of XXXX XXXXXXX (hereinafter "the lot"), in the Township of Aberdeen section of Monmouth County. The purchase is contingent upon plaintiff's being granted a variance by defendant to build an undersized house on the lot. [T1-9:22 to 10:]

Mr. XXXXXXXX and his wife, XXXX XXXXXXXX, now deceased, purchased the lot from the Township of Aberdeen for $250.00. The XXXXXXXX' also owned an adjoining lot at the time. [See July XX, XXXX Resolution at Paras. 3-4] As will be addressed in more detail below, defendant contends that the sale of the lot to the XXXXXXXX' was for the exclusive purpose of merging two undersized lots. Plaintiff's contract is to only purchase XXXX XXXXXXX. The Resolution provides that,

No mention is made in the Resolution about the fact that (a) the Township of Aberdeen sold Lot XX to the XXXXXXXX' and (b) assuming arguendo the two properties were merged, the Township of Aberdeen allowed Mr. XXXXXXXX to sell the adjacent lot separately. That should stand as proof that the lots were not merged. No mention of this is made in defendant's Resolution. As stated above, absolutely no evidence was presented that the two lots were merged.

Plaintiff filed an application with defendant for several variances on __________________. Sabastian XXXXXX, a licensed engineer and planner, testified on plaintiff's behalf at an April 16, 2002 hearing on the application. Mr. XXXXXX has been the Township Planner for the Township of Old Bridge for the past 16 years and testified at the April 16th hearing without objection. [1T-18:13-24] Mr. XXXXXX testified that the Township created the lot the way it is and sold it to Mr. XXXXXXXX [T1-21:6-9; T1-33:6-14] and that several variances are be required:

Joining XXXX XXXXXXX with one of the adjacent lots would make Lot XX an acceptable size to build a single family house. [T1-10:16 to 11:5] Plaintiff's counsel, XXXXXX, Esq., provided at the April 26th hearing that Mr. XXXXXXXX has tried to buy adjacent lots at Block 178, Lots 2 and 3 (Lot XX is vacant and undersized, T1-11:9-14; T1-12:2-10, and defendants concede that Block 173, Lots 7 and 18, are also vacant, T1-32:18-25), owned by XXXXXX and XXXXXX. The XXXXXX' were not interested in buying XXXX XXXXXXX, or selling Block 178, Lots 2 and 3. Mr. XXXXXXXX has approached Mr. XXXXXX, the owner of of XXXX XXXXXXX3, which is a vacant, 100 by 100 foot lot, concerning whether Mr. XXXXXX would purchase XXXX XXXXXXX. Mr. XXXXXX declined. [T1-4:7-21; 1T-9:22 to 10:5; T1-10:16 to 11:5]

Plaintiff's counsel also sent letters to Mr. XXXXXX and Mr. XXXXXX inquiring into whether they were willing to buy or sell. Mr. XXXXXX declined during a telephone conversation with plaintiff's counsel. Mr. XXXXXX never responded. [T1-4:23 to 5:5; 1T-9:2-10; 1T-9:22 to 10:5; 1T-13:1-5] Plaintiff offered to buy or sell at fair market value. [1T-11:20-25] The owner of Lot XX could not be reached. [T1-39:12-13] Mr. XXXXXX also testified that there is no additional land available in order to bring the lot into conformity with other lots. [T1-27:9-14]

Plaintiff submitted architectural plans for the house conform to building codes. [1T-27:15-19]Plaintiff testified that the house designed by his architect was less than 2,000 square feet (including the garage) and would take upon only 20% of the lot. [T1-7:18 to 8:9; T1-22:7 to 23:1] Mr. XXXXXX testified that the house would actually be only 1,630 square feet. Plaintiff testified that the house would be 7 to 12 feet, depending up which corner of the house one is speaking of, from the end of the property line in the backyard. [T1-8:23 to 9:1]

Mr. XXXXXX testified that the proposed house would actually be only 1,630 square feet and would be proportional to other homes in the neighborhood that are located at XXXX, XXXX, XXXX, XXXX and XXXX and range from 1,658 to 2,265 square feet. [T1:21:10 to 27:7; T1-33:15-24; T1-35:15-19] All homes on adjoining properties two story, single family homes with a floor ration ranging from .70 to .375. The floor ratio of the proposed house is .345. [T1-21:10-24] There, however, is more lot coverage on the other properties. [T1-24:10 to 25:13] He also testified that surrounding lots and blocks are not all in conformity with bulk requirements: XXXX and XXXX each have at least 10 and Block XXX has 9, for a total of 29 lots that do not conform to bulk requirements. There are also 5 undersized lots in that three block area. [T1-27:20 to 28:10] More than 50% of the dwellings on these lots are two stories. [T1-28:11-12; T1-31:19 to 33:24] No evidence was submitted to the contrary.

Only July XX, XXXX, defendant entered a Resolution of Findings and Conclusions Denying Application.

I. THE DECISION TO DENY VARIANCES TO BUILD A HOUSE ON AN UNDERSIZED, VACANT LOT THAT IS AN EYESORE TO THE COMMUNITY WAS ARBITRARY, CAPRICIOUS OR UNREASONABLE, ESPECIALLY SINCE THE DECISION RENDERS THE LOT USELESS AND SIGNIFICANTLY DIMINISHES ITS VALUE AND THE VALUE OF THE ADJACENT PROPERTY OWNERS'HOMES

The standard of review applicable to decisions of local public bodies is whether the decision is arbitrary, capricious or unreasonable. Cell South Of New Jersey, Inc. v. Zoning Bd. Of Adjustment Of West Windsor Tp., 172 N.J. 75, 89 (2002); Link to KeyCite yellow flag negative treatment Smart SMR of New York, Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998).

"'... Arbitrary, capricious and unreasonable action of administrative bodies means willful and unreasonable action without consideration and with disregard of circumstances. Where there is room for two opinions, action is not arbitrary, capricious or unreasonable when exercised honestly and upon due consideration ...'” Farrell v. Planning Bd. of Tp. of Bridgewater, 2005 WL 1390917, *4 (Law Div. 2005), quoting Bayshore Sewage Company v. Dept. of Envirl. Protection, 122 N.J.Super. 184, 199 (Ch. Div. 1973).

The Board's denial of plaintiff's application to build a house on an undersized lot is arbitrary, capricious or unreasonable because without a variance, the lot is being zoned into inutility. Mr. XXXXXXXX has tried to sell Lot XX to two adjacent property owners, but they both decliened. Mr. XXXXXXXX and plaintiff have tried on multiple occasions to get one of the adjacent property owners to sell their lot to them so that Lot XX would be large enough to build a house on. All of the adjacent property owners declined.

Zoning a lot of real estate into utter uselessness is contrary to the intent of the Municipal Land Use Law. "'Undue hardship' involves the underlying notion that no effective use can be made of the property in the event the variance is denied. Use of the property may of course be subject to reasonable restraint." Commons v. Westwood Zoning Board of Adjustment, 81 N.J. 597, 605 (1980). "Underlying the request for a hardship variance is the premise that without such relief the property will be zoned into inutility." Allen v. Hopewell Tp. Zoning Bd. of Adjustment, 227 N.J. Super. 574, 582 (App. Div.), certif. denied, 113 N.J. 655 (1988), quoting Davis Enterprises v. Karpf, 105 N.J. 476, 481 (1987).

In Allen, supra, the Appellate Division held that these principles especially apply to applications for variances to build on vacant lots. "Since this case does involve an isolated undersize vacant lot, it falls within the doctrine first suggested in Harrington Glen, Inc. v. Municipal Bd. of Adjustment of Leonia, 52 N.J. 22 [] (1968), through Chirichello v. Zoning Bd. of Adjustment of Monmouth Beach, 78 N.J. 544 [] (1979), and Commons[, supra], up to Nash v. Bd. of Adjustment of Morris Tp., [96 N.J. 97, 108 (1984)]." Id. at 582.

Defendant's decision to deny plaintiff a hardship variance was arbitrary, capricious and unreasonable because "without such relief the property will be zoned into inutility". Id.

Mr. XXXXXX testified that Lot XX will remain permanently vacant if defendant denied the variance. [1T-35:8-14] It is an eyesore to the community and is diminishing property values. Even the Township of Aberdeem would even benefit from the house being built since the Township would be able to collect a tax. Plaintiff is offering to clean up the lot and build a house on it. The house would sell with no problem even if it had minimal yard space. While many people might enjoy it, not every person needs or wants a large yard.

"Concern with aesthetics has been a subject of legislative activity ... Among the purposes of Municipal Land Use Law ... [is] the promotion of 'a desirable visual environment through creative development techniques and good civic design and arrangements', N.J.S.A. 40:55D-2(i). See Home Builders League v. Township of Berlin, 81 N.J. 127, 145, 405 A.2d 381 (1979). The conservation of property values is subsumed within the purposes of the Law, N.J.S.A. 40:55D-2(a), (e) and (i). Home Builders League v. Township of Berlin, supra, 81 N.J. at 145, 405 A.2d 381." State v. Miller, 83 N.J. 402, 410 (1980). These principles are very well-established.

It cannot be said that the decision to leave a lot permanently vacant and in horrible condition when someone is offering to clean it up and maintain it is not arbitrary, capricious or unreasonable. In fact, that was the exact holding in Allen, supra. Exceptions should be made to alleviate a vacant lot.

Defendant's Resolution is arbitrary, capricious or unreasonable in that defendant has recently granted similar applications. On XXXX, XXXXXX and XXXXXX XXXXXX applied to defendant in Application #V-04-010 for a variance allowing them to build a two-story house on a lot that is 2,441 square feet, whereas 5,000 was required. The lot's width was 25 feet with 50 being required, the side yard was 4.2 feet with 7 feet being required, and the distance from a water body was 50.5 feet, whereas 100 feet were required. In paragraph #3, defendant said that their lot was "grossly undersized". There, just like in the matter sub judice, the adjacent property owners did not want to buy the lot. Without the variance, the lots would continue to be an eyesore to the community.

"An applicant can satisfy the negative criteria if the proposed structure would not be significantly out of character in style or size." Simeone v. Zoning Bd. of Adjustment of Tp. of East Hanover, 377 N.J. Super. 417, 427 (App. Div. 2005). The proposes structure will ......N.J.S.A. 40:55D-70d

Plaintiff can also satisfy the positive criteria. "For example, it might be shown that the project promoted a more desirable visual environment through development of otherwise underdeveloped or vacant property, N.J.S.A. 40:55D-2(i); see also Burbridge, supra, 117 N.J. at 387-88, 568 A.2d 527 (aesthetic improvement may support special reasons for variance in expansion of an existing non-conforming use), or, a successful applicant might demonstrate that the project's construction with the requested density variance better promotes the character of the neighborhood or better preserves property values in the adjacent community." Grubbs v. Slothower
389 N.J.Super. 377, 390 (App. Div. 2007). There is no dispute that allowing the variance will protect the value of the adjacent property owners' homes as well as provide "a more desirable visual environment". N.J.S.A. 40:55D-2(i). This statute specifically states that its intent, in part, is to alleviate vacant lots.

The court should vacate defendant's decision to deny plaintiff's application for the before mentioned variances and remand this matter to defendant with instructions to grant the variances.

Respectfully Submitted,

______________________________
XXXX XXXXXXX
Plaintiff, pro se