PETER D. CAMPANA VS. TOWNSHIP OF LONG BEACH LAND USE BOARD (L-0309-16, OCEAN COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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.
    A-0762-17T1
    2
    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
    A-0762-17T1
    3
    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
    A-0762-17T1
    4
    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
    A-0762-17T1
    5
    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.
    A-0762-17T1
    6
    (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:
    A-0762-17T1
    7
    (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
    A-0762-17T1
    8
    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 -
    A-0762-17T1
    9
    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.
    A-0762-17T1
    10
    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
    A-0762-17T1
    11
    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."
    A-0762-17T1
    12
    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
    A-0762-17T1
    13
    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.
                                                                                A-0762-17T1
    14
    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
    A-0762-17T1
    15
    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."
    A-0762-17T1
    16
    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
    A-0762-17T1
    17
    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).
    A-0762-17T1
    18
    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
    A-0762-17T1
    19
    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
    A-0762-17T1
    20
    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.
    A-0762-17T1
    21
    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
    A-0762-17T1
    22
    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").
    A-0762-17T1
    23
    "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
    24
    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
    25
    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.
    A-0762-17T1
    26
    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
    A-0762-17T1
    27
    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
    A-0762-17T1
    28
    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
    A-0762-17T1
    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.
    A-0762-17T1
    30
    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.
    A-0762-17T1
    31