In a recent New Jersey case, DeVito v. Middletown Zoning Bd. of Adjustment, 2010 WL 4977105 (N.J. Super A.D. Dec 9, 2010), the owner of a triangularly shaped lot requested a variance from the local zoning board to construct a six foot tall fence along his property line (no more than 3 feet in height is permitted under the terms of the zoning ordinance).
On appeal, the applicant argued that the unusual triangular shape of the lot, the lot fronting on two streets, and its proximity to the highway and commercial property all served as a basis for the variance because of the need to be screened from the traffic and the commercial properties in the area. He also argued that there were many fences in the vicinity and a denial of his application was arbitrary and capricious and lacked a rational basis.
The Board argued that the application was properly denied because DeVito's lot, although unusual, did not itself create the need for the variance. The uniqueness of the property itself must create the need for the variance. There is nothing inherent in the nature of the lot that prevented DeVito from complying with the ordinance, which was intended to prevent a tunneling effect in the neighborhood that is caused by high opaque fences. The neighboring houses that have high fences did not receive variances. Those fences were either installed without a proper application or were grandfathered as non-conforming, existing uses.
The trial court reversed the decision of the zoning board denying the application. On appeal, the New Jersey Appellate Division reversed the trial court, siding with the decision of the zoning board:
First, [the] hardship does not arise from the unusual nature of the property because the shape of the lot does not cause the need to erect a six-foot fence. Second, the Board's resolution articulated coherent reasons for the denial of the application. These reasons are based on findings that are supported by the proofs before the Board, which was the fact finder. Therefore, the Board's findings are binding . . .The New Jersey variance provision and the Tennessee variance provision are almost word for word as contained in the enabling legislation of the two states. Therefore, a decision like this one from New Jersey, is especially instructive here in Tennessee. It is important to realize that even though the key threshold issue in any variance case is the existence of some exceptional physical feature of the property, the fact that there is an exceptional feature does not by itself constitute grounds for the issuance of a variance.
Rather, the applicant must demonstrate that the exceptional physical feature causes some practical difficulty or undue hardship. If there is no causation between the difficulty or hardship and the exceptional physical feature cited by the applicant, then the variance and should not be granted. We don't see too many cases like this in Tennessee, although I have tried one or two myself.
Finally, one other aspect of this case which is interesting in the context of the Tennessee enabling legislation, is the Court's discussion of the so-called "negative criteria" are contained in both the New Jersey and Tennessee zoning enabling legislation. The New Jersey statute reads:
No variance ... may be granted under the terms of this section ... without a showing that such variance or other relief 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. . . .
N.J.S.A. 40:55D-70. The Tennessee statute provides:
provided, that such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and zoning ordinance.
Tenn. Code Ann. §§13-7-109 (3) & 207 (3). Notice the striking similarity between the provisions. The reason for the similarity is pretty simple: the same nationally known land use attorney, Alfred Bettman, consulted both in Tennessee and New Jersey and the legislation adopted in both states reflects his input.
In any event, the New Jersey court found in this case that the applicant had not presented any proof sufficient to demonstrate that the "negative criteria" were met. "Here, the zone plan expresses a preference in favor of open views in the neighborhood. DeVito failed to produce evidence that the zoning plan would not be substantially impacted by the fence."
When representing a client seeking a variance, generally in order to provide evidence sufficient to demonstrate compliance with a negative criteria, I will submit a portion of the Comprehensive Plan for that area of the city, and demonstrate that the plans proposed are not inconsistent with the plan. To the extent that there is very little difference between the requirements of the zoning ordinance and the proposed variance, I will certainly also emphasize that small difference. Furthermore, there may be other aspects of the project which will be beneficial to the public good, such as an increase in employment, property taxes, and important or improved visual vista, or, for that matter, anything else which might seem beneficial to the community.
Often times, the applicant simply forgets this provision entirely and there is no evidence submitted in any attempt whatsoever to deal with the negative criteria contained in our zoning statute. Many times, the zoning ordinance does not reference the negative criteria contained in the zoning enabling legislation. But that does not mean that you can ignore it. From my perspective, the fact that the negative criteria is specified in the zoning enabling legislation requires an applicant for a variance to demonstrate somehow compliance with those provisions. Sometimes it takes a little imagination, but the negative criteria should always be addressed. Simply ignoring those provisions might mean the difference between winning and losing in a court of law or equity.