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William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director

Legal Q & A
Variances for Hardships
and
Reassessment Equity


Deborah M. Kole
League Staff Attorney

Q I am a new member of the zoning board of adjustment in my community, and we will soon be hearing an application for a variance from a developer on the basis of "undue hardship." The property involved is large enough in area under our zoning ordinances to be divided into at least four lots for one family homes, but because of the unusual shape of the property, to do so would violate other zoning code requirements. The developer wants to build only three homes, but needs a variance to do so. If he built only two homes, on the other hand, no variances would be needed, although the two lots created would be substantially larger than other one family properties in the zone. It seems to me that this situation fits the definition of a "self-created hardship" and therefore a variance should not be granted, but others on the board disagree. Am I right about this?

A According to a 2002 unreported opinion of the Appellate Division, Pereira v. Randolph Township Planning Board, decided on March 28, 2002 (Municipal Law Review, June, 2002, p. 16), this would not necessarily be considered a self-created hardship. As that case reiterates, a hardship sufficient for a variance is created when, because of the unique qualities of a particular property, strict enforcement of a zoning ordinance will prevent full utilization of the land. However, it is clearly not enough to argue that the developer will make more money if the variance is granted. The amount of profit is not the basis on which a variance should be granted. Rather, the special qualities of the particular property must place the owner at a particular disadvantage in using the property in full compliance with the zoning ordinance.

A self-induced hardship is one that is created by the owner or his or her predecessor in interest, rather than the nature of the property itself. Thus, where the owner has chosen not to purchase adjacent property and that purchase would have rendered a variance unnecessary (Chirichello v. Zoning Board of Adjustment of Borough of Monmouth Beach, 78 N.J. 544, 1979), the hardship is self-created. Similarly, where an owner or predecessor in interest creates the nonconformity after the zoning regulations are in place, it will be viewed as a self-induced hardship (Ketcherick v. Borough of Mountain Lakes Board of Adjustment, 256 N.J. Super.647, App. Div. 1992, George F. Barnes Land Corp.v. Board of Adjustment of Wyckoff, 174 N.J. Super. 301, App .Div. 1980).

Therefore, the question is whether the particular hardship was caused by unique qualities of the land itself, rather than by something the owner or prior owner did or did not do. The facts of the variance application to be brought before you will deter-mine the answer in that particular case. You and your fellow board members should consult the board's attorney to help you apply the law to the facts of the application.

Q I own a business in a largely residential community. Recently the tax assessor conducted a reassessment of only the commercial properties in town. About half of the properties increased in value (including mine) and half did not. Is it legal to just revalue some of the property in the municipality like this? I thought this type of action is a "spot assessment" and not allowed.

A As long as the properties selected for increases were not chosen arbitrarily, and the higher valuations were based on objective, non-sales related evidence that considered other similarly-situated properties within the same class, a recent Appellate Division case indicates that this process would not be unconstitutional spot assessment. In Regent Care Center, Inc. v. Hackensack City, Docket No. A-0540-01T2, decided July 22, 2003, the Court found a reassessment of a nursing home as part of an evaluation of only the commercial properties in a municipality to be valid "assessment maintenance." The opinion pointed out that, while ideally a district-wide assessment would be made every year for accuracy, it is not always possible to accomplish that each year. On the other hand, assessors can-not be expected to do nothing in between full reassessments, if the valuation of a class of property has increased for some reason. As long as the reassessment is not based solely on the sale of the subject property or on other arbitrary or discriminatory criteria, such a procedure is permissible.

Therefore, unless you have a reason to claim that the assessment is substantively inaccurate, this reassessment is likely to be valid

.

This column is for informational purposes only, and is not intended as legal advice.


 

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