PLANNING BOARD VARIANCES MUST BENEFIT THE COMMUNITY, NOT JUST THE PROPERTY OWNER, SAYS COURT. ALSO, BOARDS MAY NOT PERMIT FENCES IN CONSERVATION EASEMENTS.

The New Jersey Appellate Division just gave a huge N-O to municipal land use boards permitting fences in a conservation easement.

Importantly, the appeals court also reiterated that when a Planning Board grants a setback or lot size variance on the basis that by the granting of the requested variances, "the purposes of the MLUL would be advanced" and that "the benefits of the deviation would substantially outweigh any detriment" - the benefit needs to be to the community and not simply to the property owner!

This prerogative writs appeal arises out of a neighborhood dispute over a fence in a conservation easement.

Brian and Marissa Dreher purchased a home on Brushy Neck Court in Brick in 2016. The property is a through lot with ninety-five feet of frontage on both Brushy Neck Court and Davids Road. It is encumbered by a conservation easement, located along the Davids Road frontage, in favor of Brick Township, required as a condition of the Township planning board's 1997 major subdivision approval creating Timberland Estates, of which the Drehers' lot is a part.

The conservation easement provides in pertinent part that the grantee, its successors and all subsequent owners are "required to maintain in perpetuity" the conservation easements on the "final subdivision plat in their natural state and shall be further prohibited from clearing . . . and/or from making any improvements on this space, including but not limited to, construction of buildings, sheds, swimming pools, tennis courts and/or other such uses." The conservation easement is recorded in the Ocean County Clerk's Office.

In 1998, the Drehers' predecessor in title received a zoning permit to erect a four-foot-high chain link fence in the conservation easement based on a letter from the planning board's attorney at the time, opining the fence was permissible so long as it did not require removal of any living vegetation, thereby preserving the covenant in the conservation easement that the lands remain in their natural state. 

Three years after purchasing the property, the Drehers applied to the Zoning Board to replace the four-foot chain link fence located four-feet from Davids Road with a six-foot stockade fence. Because the Township's land use ordinance limits fences in the thirty-five-foot front yard setback to a height of four feet in the Drehers' R-15 residential zone, and forbids stockade fences, the Drehers required a (c)(2) variance. (A Planning Board may grants a (c) (2) setback or lot size variance on the basis that by the granting of the requested variances, "the purposes of the MLUL would be advanced" and that "the benefits of the deviation would substantially outweigh any detriment").

Mrs. Dreher testified she and her husband wanted to erect the six-foot stockade fence for privacy. She claimed Davids Road was "really not patrolled at all. And we've had instances with ATVs on that road driving loops around in front of our house or behind our house. We have two small girls. We've had cars linger." She also pointed to the "contentious relationship" with the neighbor behind them on Davids Road, saying "it's just we need that peace of mind." She also claimed that with Summerfest taking place nearby in Windward Beach Park, "a four-foot fence isn't going to deter anybody if they wanted to get into our yard. It's wide open." 

When the Board Chairman returned later to the topic of Summerfest, and that "the people from SummerFest come on your property," Mrs. Dreher testified "I'm saying they could. It's a concern." When the Chairman sought to clarify the Drehers were "saying the people from Windward Beach come up your road, come up Davids Road," Mrs. Dreher replied: 

We obviously can't see people. There's no lights back there. They could. That's the concern is that they could. As our girls get older, it becomes a concern. I mean, there's ATVs, there's golf carts, there's all sorts of things on Davids Road. We don't know where it could escalate to, where it can end. We're just trying to be good neighbors and want to be good neighbors and just leave it alone. 

When Mr. Dreher was asked what benefit the neighbors would derive from the required variances, he testified "[i]t would increase the appearance of the neighborhood. It would increase the privacy, the security and . . . the neighborhood feel of kind of almost a comradery of the neighborhood, because they do kind of, they are all interested . . . [in] what we're seeking to do."

Asked by a board member about her view of the positive or negative impacts on the neighbors located both adjacent to and behind her home, Mrs. Dreher testified that a six-foot high stockade fence would be "far more attractive than what's there now."

Mrs. Dreher claimed "[t]he chain link on [the] Davids Road side is covered with briars," and that "there's probably some trash in there that we haven't seen." She testified a wood fence in her "opinion is nice to look at and I'd like to see it cleared back there. It is messy and you don't like to see on the side of the road all the briars and the vines choking out everything."

According to Mrs. Dreher, her neighbors had "not been able to maintain the conservation easement for fear of touching anything and having zoning or whomever called" and being harassed by "an inspector in the engineering department."

Mrs. Dreher also testified she and her husband "just feel as though we should be able to have the privacy that people on Princeton [Avenue] have. They have that double frontage on Princeton and they have the six-foot stockade. We'd like to do the same."

When it was pointed out that all the neighbors on Brushy Neck Court had chain link and not stockade fences, Mrs. Dreher replied that was the only thing "they were permitted at the time." She stated "we have the easement. We pay taxes for the easement. We should be able to be in the easement and [not] have to put a fence up 35 feet in and lose all that space and then be expected to maintain it on top of that."

One neighbor, Donna Conover, who is the plaintiff in this lawsuit, opposed the application, saying that a six-foot stockade fence was incompatible with both the existing fencing and the conservation easement, and that she [and her neighbors whose front yards face the back yards of the Drehers' and their neighbors on Brushy Neck Court] "should be given the opportunity to look at a yard and not a solid fence."

Addressing the easement, the Board's attorney explained for the Board that the easement has two purposes. The first is to preserve the natural green area by prohibiting the removal of any vegetation thereon other than dying or dead vegetation. Secondly, there is a prohibition against the clearing of free space for the making of any improvement, including, but not limited to, the construction of buildings, sheds, swimming pools, tennis courts and other such uses. [Prior board counsel] came to the conclusion that the fence did not fall within that. Those are the two purposes that this Board has identified as the purpose of the conservation easement. 

The Board voted to grant the variances by unanimous vote of the members present and voting. In its memorializing resolution, the Board stated the Drehers sought to replace a dilapidated four-foot open chain link fence with a closed six-foot stockade fence for "additional privacy and security," noting Mr. Dreher testified "that persons have regularly trespassed on the subject Property with all-terrain vehicles" and "trespassing often occurs in the summer, especially during 'Summer Fest.'"

The board also noted Conover's testimony.

The board found the Drehers satisfied the positive criteria required for a (c)(2) variance because "the bulk variance relief required to install the fencing results in a diversified housing stock and an aesthetic improvement which promotes the goals of planning as enumerated in N.J.S.A. 40:55D-2," and "reiterate[d] that the purpose of the conservation easement," as explained by both its current and former counsel, "is to preserve the trees and vegetation easement and . . . that the Applicant's proposed fencing would not undermine that purpose."

As to the negative criteria, the board found the proposed six-foot stockade fencing four feet off a paved street "is a commonly permitted improvement to a single-family residential use such as those in the surrounding neighborhood." It found the new fence "will not create a substantial detriment to the public good because the proposed fencing would be located in the exact location of the existing fencing." The Board also found "persuasive" the 1998 opinion of its former counsel that "a four-foot high, see-through chain link fence" was "permissible" within the conservation easement "so long as it did not require any clearing of vegetation." 

Accepting the Drehers' testimony "that the proposed fencing would not disturb vegetation and trees," the Board concluded the proposed fencing "complies with [its counsel's 1998] letter" and "therefore the nature of the encroachment into the rear yard setback is unlikely to detrimentally affect the adjacent property owners" nor "harm the vegetation and trees in the conservation easement because the proposed fencing would be installed in the exact same location as the existing fencing." The Board rejected Conover's claim "that the proposed fencing could be viewed from her property" as having "little merit" as she "lives two doors away" from the Drehers.

The Board concluded the proposed fence will not have a substantial detrimental effect on neighboring properties and that the improvement will actually benefit surrounding properties through the improved aesthetics. It found the purpose and intent of the ordinance establishing the thirty-five foot setback for rear yards fronting a public street was "to avoid any substantial detriment to the residential character of the neighborhood," and that the variances requested did not pose a "substantial detriment to this purpose," satisfying the negative criteria.

Conover filed a lawsuit in New Jersey Superior Court in Ocean County, seeking to overturn the Board's approval.

The Superior Court dismissed Conover's appeal of the grant of the variances. Finding "the Township has an interest in the preservation of the conservation easement," the trial court held the Board "had the right to interpret [the] conservation easement to make sure" any relief it provided "wouldn't violate" its provisions.

The court concluded the Board's decision that "the conservation easement does not prohibit fences" and that the Drehers had established their entitlement to a (c)(2) variance was neither arbitrary nor capricious and it was thus "compelled to consent under these circumstances to uphold [its] decision and not disturb the resolution as adopted by the Board." 

Conover appealed the decision, arguing that the Board lacked the authority to interpret a recorded easement required as a condition of subdivision approval by the planning board, and that both the Board and the Superior Court erred in finding the Drehers established their entitlement to a (c)(2) variance to build a six-foot stockade fence four feet off Davids Road.

In a written ruling just released, Judges Accurso and Natali agreed on both points and reversed the Board's approval.

We disagree with the trial court that the Board "had a right to interpret" the conservation easement, if only to ensure the relief it granted did not run afoul of the easement's terms. The law is well-settled a municipal board lacks the power to relieve an applicant from a deed restriction imposed as a condition of a prior subdivision approval, Am. Dream at Marlboro, L.L.C. v. Plan. Bd. of the Tp. of Marlboro; Soussa v. Denville Plan. Bd.

When a board "interprets" a deed restriction imposed as a condition of a prior approval, even if only to ensure the relief it grants does not violate the restriction, it obviously runs the risk of relieving the applicant of the restriction — as prior Board counsel arguably did by approving erection of the chain link fence in the conservation easement. 

The prohibition against the Board interpreting the deed restriction, however, did not prevent it from considering the Drehers' request for bulk variances. Thus, we consider whether the trial court was correct to affirm the grant of the (c)(2) variances without regard to the deed restriction imposed as a condition of subdivision approval, as the question of the extent of that restriction is not properly before us. 

N.J.S.A. 40:55D-70(c)(2) provides in pertinent part that where in an application or appeal relating to a specific piece of property the purposes of this act . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, [the zoning board may] grant a variance to allow departure from regulations pursuant to article 8 of this act . . . . 

However, importantly, "it is thus axiomatic that "no (c)(2) variance should be granted when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property. The Board's focus then must be on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community." Kaufmann v. Plan. Bd. for Warren.

Applying those standards here, we are convinced the trial court erred in affirming the Board's grant of a (c)(2) variance to the Drehers. There was no evidence before the Board sufficient to find the requested variances advanced the purposes of the Municipal Land Use Law. The only reasons the Drehers advanced were their own personal privacy and security. To the extent Mr. Dreher's testimony implied the grant of the easement would benefit their neighbors on Brushy Neck Court, who would also be interested in erecting stockade fences in their rear yard setbacks, the Board is prohibited from rewriting the zoning ordinance to amend the rear yard setback requirements for through lots in the R-15 zone. See Kaufmann, noting boards "cannot rewrite ordinances to suit the owner or their own idea of what municipal development regulations should be." Any relief in that regard must come from the Township Council's amendment of the zoning ordinance.

The board also failed to identify specifically which purposes of the MLUL the variances advanced, finding only that the proposed "fencing results in a diversified housing stock and an aesthetic improvement which promotes the goals of planning as enumerated in N.J.S.A. 40:55D-2." We fail to see any connection between a six-foot stockade fence and "a diversified housing stock," which the Board does not locate within the purposes listed in N.J.S.A. 40:55D-2(a) through (q) in any event. And although the promotion of "a desirable visual environment," N.J.S.A. 40:55D-2(i) is certainly included among the purposes of zoning, the Board does not explain why a six-foot stockade fence, which does not appear to be permitted within the front yard setback in any residential zone in the Township, effectuates the goals of the community as expressed through its zoning and planning ordinances.

As for the negative criteria, the Board offers no evidence supporting its finding that a six-foot stockade fence located four feet from the street within a thirty-five-foot setback "is a commonly permitted improvement to a single-family residential use such as those in the surrounding neighborhood." The record supports the opposite, that is that none of the neighbors had stockade fencing and the only fences in the neighborhood were open chain link fences.

In addition, Brick Township Ordinances prohibits any fence of whatever type to be "located less than 10 feet from the pavement or cartway of any street, whether public or private," and the proposed fence will be only four feet from the street. 

The Board's finding that the proposed fence on this through lot would "not create a substantial detriment to the public good because the proposed fencing would be located in the exact location of the existing fencing," fails to take into account that the existing fence is an open chain link fence four feet high and the fence proposed will be a six-foot-high closed stockade fence, which is apparently not permitted in any residential zone in the Township. 

It is readily apparent that the Township's purpose of allowing only open fences of no more than four feet high in the front yard setback is to provide a "desirable visual environment" from the street, with no exceptions for through lots, which front on two streets. Indeed, the Board found "the purpose and intent" of the ordinance establishing "the rear setback is to avoid any substantial detriment to the residential character of the neighborhood." 

It is not possible to square that finding with the Board's conclusion that the Drehers' proposed six-foot stockade fence located four feet from Davids Road, which as Conover explained, is what the neighbors living on that road face and anyone traveling along it sees, "will not have a substantial detrimental effect on neighboring properties and that the [fence] will actually benefit surrounding properties through the improved aesthetics."

Erecting a six-foot stockade fence four feet from the road unavoidably creates a "substantial detriment to the residential character of the neighborhood," with no offsetting benefit. See Bressman v. Gash, finding the benefits of the bulk variance, resulting in a smaller back yard, outweighed any detriment and were "not purely private" because it allowed the applicant to construct an attractive home more in keeping with the character of the neighborhood and a landscape berm mitigated the adverse impact on the neighbors. The Board nowhere explains how a six-foot stockade fence four feet off David's Road "actually benefits the community," representing "a better zoning alternative" for the Drehers' property in this small residential neighborhood, as required under Kaufmann, the judges concluded, vacating the Board's approval.

The winning attorney is Edward F. Liston, Jr. Esq.

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