SCHOWL HEDVAT VS. TENAFLY PLANNING BOARD AND BOROUGH OF TENAFLY(L-0993-12, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0111-15T2

SCHOWL HEDVAT AND
SIMA HEDVAT,

Plaintiffs-Appellants,

v.

TENAFLY PLANNING BOARD AND
BOROUGH OF TENAFLY,

Defendants-Respondents,

and

PASSAIC VALLEY TITLE SERVICE,
TICOR TITLE INSURANCE COMPANY,
CHICAGO TITLE INSURANCE COMPANY,
ROBERT J. MUELLER, MICHAEL HUBSCHMAN,
HUBSCHMAN ENGINEERING, PA., ERIC
MARGOLIS and KAREN PATRUSKY,

Defendants.
_________________________________

Argued telephonically February 14, 2017 –
Decided August 9, 2017

Before Judges Simonelli, Carroll and Gooden
Brown.

On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-0993-12.
 Carmine R. Alampi argued the cause for
appellants (Alampi & DeMarrais, attorneys;
Thomas A. Lodato, on the briefs).

Jeffrey A. Zenn argued the cause for
respondent Tenafly Planning Board (Cullen and
Dykman, LLP, attorneys; Mr. Zenn, on the
brief).

Respondent Borough of Tenafly has not filed a
brief.

PER CURIAM

Plaintiffs Schowl and Sima Hedvat (collectively, plaintiff)

appeal from the October 22, 2012 judgment, which affirmed the

decision of respondent Tenafly Planning Board (Board) to deny

plaintiff's application for minor subdivision approval. We

affirm.

We derive the following facts from the record. Plaintiff

owns property on Elkwood Terrace in Tenafly known as Lot 3, Block

2103 (the property). The property is a large rectangular lot

measuring 33,709 square feet, and contains a single-family home

that fronts Elkwood Terrace with access to Elkwood Terrace via a

driveway. There presently is a stone or gravel driveway in the

rear of the property that fronts Mayflower Drive. Mayflower Drive

is a municipal right-of-way; it is steep and has a series of curves

with a reverse curve in the rear of the property.

The property is located in the R-10 zone district, but the

properties across the street and adjacent are located in the R-40

2 A-0111-15T2
zone district. The minimum lot size in the R-10 zone is 10,625

square feet, and the minimum lot size in the R-40 zone is 40,000

square feet. The Tenafly Land Development Regulations (LDR)

require a minimum 50-foot lot width at the street line (frontage)

for properties in the R-10 zone, and a minimum 90-foot frontage

in the R-40 zone. LDR Section 35-722.1 contains the following

design standard for a subdivision:

The subdivider shall observe the
requirements and principles of land
subdivision in the design of each subdivision
or portion thereof, as set forth in this
Article. The "New Jersey Residential Site
Improvement Standards" [(RSIS) N.J.A.C. 5:21-
1 to -8.1] are hereby adopted in their
entirety. When such State standards conflict
with those set forth in this ordinance, the
RSIS shall apply.

Regarding safe stopping sight distance and safe intersection sight

distance standards, RSIS requires adherence to the American

Association of State Highway and Transportation Officials (AASHTO)

standards. N.J.A.C. 5:21-4.19(b).

In 2004, plaintiff filed an application to subdivide the

property into two lots: proposed Lot 3.01 would measure

approximately 18,548 square feet; and proposed Lot 3.02 would

measure approximately 15,159 square feet (the 2004 application).

A survey prepared by plaintiff's expert engineer and land surveyor,

Hubschman Engineering, P.A., showed the property ended at the

3 A-0111-15T2
right-of-way line of Mayflower Drive, creating a frontage of only

41.68 feet at the street line of Mayflower Drive. This resulted

in a deficiency of approximately nine feet or approximately

seventeen percent of the minimum required lot frontage. Thus,

plaintiff sought a lot width variance. Plaintiff also sought a

variance for encroachment into steep slope areas in excess of

twenty-five percent for the rear of proposed Lot 3.02. After

several hearings, plaintiff withdrew the application.

In June 2007, plaintiff applied for a permit to construct a

swimming pool and patio on the property and a driveway in the rear

of the property that would provide ingress and egress from

Mayflower Drive. Contrary to the 2004 application, plaintiff's

plan for the permit showed no steep slopes in excess of twenty-

five percent in the rear of the property near the location of the

driveway, indicating that plaintiff had leveled the backyard.

Although a permit was issued for all of the work (the 2007 permit),

plaintiff only constructed the driveway at the rear of the

property.

In 2010, plaintiff filed a new application to subdivide the

property into two lots: proposed Lot 3.01 would measure

approximately 17,625 square feet, contain the existing single-

family home, and front Elkwood Terrace; and proposed Lot 3.02

would measure approximately 16,084 square feet and would front

4 A-0111-15T2
Mayflower Drive (the 2010 application). Plaintiff asserted that

the subdivision required no variance because the frontage for

proposed Lot 3.02 at the street line of Mayflower Drive was

approximately 66.69 feet, not 41.68 feet. Nevertheless, plaintiff

included a request for a variance, if necessary.

Plaintiff had retained a new expert engineer and land

surveyor, Steven Koestner, who prepared a new survey in November

2009. Koestner testified that the 66.69-foot frontage at the

street line of Mayflower Drive differed from the 41.68-foot

frontage in the Hubschman survey because he had located a stone

monument in the northwest corner of the property at the

intersection of Elkwood Terrace and Bliss Avenue. Koestner

explained that plaintiff's deed had a call for the property and

when he followed the call from the newly discovered stone monument,

he found the property line extended approximately 2.7 feet into

the right-of-way of Mayflower Drive, which produced a frontage at

the street line of Mayflower Drive of approximately 66.69 feet.

A neighboring objector's expert surveyor and planner, James

Sens, testified that Mayflower Drive is equivalent to a monument

call; however, a call to a monument only controls in the event of

an inconsistency or ambiguity with a metes and bounds description

in a deed or geometry. Sens explained that even if Koestner's

description of the property starting at a stone monument and going

5 A-0111-15T2
366 feet was correct, the metes and bounds description in

plaintiff's deed specifically recited that the property extended

"to a point on the westerly street line of Mayflower Drive" and

then went up to and along Mayflower Drive on its second course,

not into Mayflower Drive. Sens opined that "the call in the deed

is . . . clear, and the call is to Mayflower Drive, so . . . the

terminus of that course is Mayflower Drive." Accordingly, Sens

testified that under the priority of calls among surveyors, the

property only went to the right-of-way line of Mayflower Drive

because Mayflower drive acts as a monument. Sens concluded that

the frontage along Mayflower Drive was 41.68 feet, thus

necessitating a variance from the minimum required street

frontage.

Sens also testified that no property owner would have an

expectation that their property would extend into a municipal

right-of-way. He emphasized that plaintiff's deed referenced a

survey showing the property line ended at the right-of-way of

Mayflower Drive, and the description in plaintiff's deed and the

deed of a predecessor in title did not start at a stone monument

or even reference a stone monument. Thus, Sens concluded that the

property's easterly property line extended up to but not into the

right-of-way of Mayflower Drive.

6 A-0111-15T2
 The Board's expert engineer and surveyor, David Hals, agreed

with Sens that there is a priority of calls and plaintiff's deed,

regardless of how the lot was created in the past, only

contemplated that the property line extended to and not into the

right-of-way of Mayflower Drive. Hals advised the Board that it

need not determine the lot's overall size or consider title

determinations; rather, the Board had to determine where the

easterly side of the property ended.

Plaintiff's transportation and planning expert, Hal Simoff,

addressed the issue of safe ingress and egress from proposed Lot

3.02 along Mayflower Drive. Simoff reviewed the AASHTO standards

to determine adequate sight distances. Simoff testified that

although the speed limit on Mayflower Drive was twenty-five-miles-

per-hour, the design speed of the curve on Mayflower Drive as per

AASHTO design standards was twenty miles-per-hour. Based on that

design speed, Simoff determined that the required stopping

distance for vehicles exiting from the property onto Mayflower

Drive was 109 feet as mandated by AASHTO. Simoff testified that

the site distance from the proposed driveway was approximately 150

feet, subject to removal of the vegetation/landscaping within the

right-of-way in front of the objector's adjacent lot on Mayflower

Drive that blocked the view of the driveway. Simoff also testified

7 A-0111-15T2
that Mayflower Drive should be signed with a speed limit of twenty

miles-per-hour.

The objector testified that he removed the

vegetation/landscaping within the municipal right-of-way to the

satisfaction of the Borough's Director of Public Works.

The objector's expert traffic engineer, Henry Ney, testified

that when reviewing the proposed driveway location, sight distance

is the primary concern from a safety and traffic perspective. He

testified that the RSIS governed because this was a subdivision

application, and the RSIS relies on the same AASHTO standards that

Simoff relied on. Ney explained in his expert report that AASHTO:

recommends that each driveway intersection
provide both [s]topping and [i]ntersection
[s]ight [d]istances. Stopping [s]ight
[d]istance is the distance needed to see to
bring a vehicle to an emergency stop. It is
the sum of the distance travelled during brake
reaction time (time from seeing [an] object
to actually applying brakes) and braking
distance. Intersection [s]ight [d]istance is
the time to permit the driver to anticipate
and avoid potential collisions. Both
[i]ntersection and [s]topping . . . or
si[ght] distances are based on vehicle
approach and roadway grades.

Ney testified that an appropriate speed and the grade of the

road must first be determined in order to assess the adequacy of

sight distance. Ney noted that Simoff used twenty miles-per-hour

in his traffic study analysis, which was an improper speed for

8 A-0111-15T2
determining appropriate sight distances along Mayflower Drive

because the posted speed limit was twenty-five-miles-per-hour, and

industry standards indicated that speeds at least five-miles-per-

hour over the posted speed limit should be used. In addition, the

Chief of Police suggested that any analysis not use less than

twenty-five-miles-per-hour.

Ney opined that the sight distance measured at the curb line

of Mayflower Drive was only marginally better than the sight

distance measured from the property line; however, in either

instance, the stopping distance and intersection distance for the

proposed driveway was not safe. Ney concluded that the safe

stopping sight distance from the driveway was 147 feet to the left

toward Elkwood Terrace and 165 feet to the right in an easterly

direction on Mayflower Drive. The minimum intersection sight

distance was 240 feet to the left toward Elkwood Terrace and 308

feet to the right easterly along Mayflower Drive. Based on his

field measurements, Ney found that the sight distance to the left

toward Elkwood Terrace was only 85 feet and 180 feet to the right

easterly on Mayflower Drive. Thus, he concluded the driveway did

not meet the safe stopping sight distance and intersection sight

distance, and thus violated the AASHTO safe stopping sight distance

and intersection sight distance standards, thereby failing to

provide minimum design and safety requirements.

9 A-0111-15T2
 Ney also testified that at the time of his investigation,

there was no vegetation within the right-of-way of Mayflower Drive

blocking sight distances. Ney noted that Simoff had found the

sight distance to be 150 feet within the right-of-way if the

vegetation was cleared. Ney testified that he measured the sight

distance after the vegetation was cleared and it was only 85 feet.

Lastly, Ney noted that when a vehicle was at the curb line of

Mayflower Drive rather than at plaintiff's property line, the

sight distance was increased to 105 feet. He concluded, however,

it made no difference, as in either case the safe sight distance

criteria for stopping sight distance and intersection sight

distance was not met.

In a December 14, 2011 resolution, the Board made detailed

findings and denied the 2010 application and variance. The Board

first found that the property ended at the right-of-way of

Mayflower Drive. The Board noted that plaintiff's deed had a call

for the property up to the westerly street line of Mayflower Drive;

plaintiff could not have expected that the property extended beyond

the right-of-way; plaintiff's deed did not reference a stone

monument; and the LDR's definition of "lot area" did not include

10 A-0111-15T2
any portion of a right-of-way.1 The Board expressed its skepticism

that plaintiff found a stone monument several years after

withdrawing the 2004 application, which shifted the property line

and thus removed the variance impediment to the 2010 application.

The Board found that the 41.68-foot frontage for proposed Lot

3.02 represented an approximately eighteen percent deficiency in

required lot width at Mayflower Drive, which was a substantial

deviation from the requirements of the LDR. Accordingly, the

Board concluded that a variance was required for lot width at the

street line of Mayflower Drive.

The Board explained why it found Ney's testimony more credible

than Simoff's testimony. The Board concluded that the application

did not comply with RSIS or with minimum design and safety

standards because the driveway failed to meet stopping sight

distance completely, intersection sight distance partially, and

provide minimum design and safety requirements.

The Board noted that there was an existing driveway

constructed on the property as a result of the 2007 permit. The

Board emphasized that the 2007 permit was issued without Board or

Board of Adjustment review, and the RSIS safety standards governed

1
Section 35-201 of the LDR defines "lot area" as "the area
contained within the lot lines of a lot, but shall not include any
portion of a right-of-way."

11 A-0111-15T2
the 2010 application. Thus, the Board concluded that the driveway

was not grandfathered in, nor did it give plaintiff any rights in

connection with the 2010 application.

The Board determined that plaintiff failed to satisfy the

positive and negative criteria for a variance under N.J.S.A.

40:55D-70c(1). Regarding the positive criteria, the Board

rejected plaintiff's argument that the curvature of Mayflower

Drive was a unique physical feature of the property that caused

an undue hardship. Rather, the Board found that the physical

features of Mayflower Drive bore directly on the problems with

safe sight and stopping distances, and those features directly

affected the Board's determination that the driveway was not safe.

The Board also found that plaintiff failed to demonstrate

exceptional or practical difficulties on the property. The Board

emphasized that plaintiff purchased the property as one lot, and

should not have been surprised that the property did not extend

into the right-of-way of Mayflower Drive because the deed noted

the property extended up to the street line of Mayflower Drive,

and a survey was referenced in the deed. The Board noted that

plaintiff could still use the property for a home, build a large

house, or add a pool or tennis court. The Board also noted that

plaintiff sought a construction permit for a pool and patio, but

12 A-0111-15T2
never constructed them. Thus, the Board concluded any hardship

was self-created.

The Board also determined that the property was not so unique

as to create a hardship. The Board found the property was on a

sloped lot which was similar to a very substantial portion of

Tenafly on the East Hill, and therefore, not unique to the

property. The Board also found that the eighteen percent deviation

from the frontage requirement was substantial, and this was

particularly notable in that the R-40 zone is right across the

street and adjacent from the property along Mayflower Drive, and

the R-40 zone requires a minimum 90-foot frontage. The Board

concluded it would not be good practice to create even smaller lot

widths when the property was adjacent to an even larger zone

district.

Regarding the negative criteria, the Board found as follows:

The safety issues presented above
concerning the safe stopping sight distance
and safe intersection sight distances present
very real concerns and demonstrate to the
Board that it would not be appropriate to
subdivide this property and place another
house with an active driveway onto that
location. Not only would it be a violation
of RSIS, but it would be a substantial
detriment to the public health and safety.
Thus, the applicant cannot satisfy the
negative criteria for variance relief.

13 A-0111-15T2
 Plaintiff filed a complaint in lieu of prerogative writs

against the Board, the Borough of Tenafly (Borough), and other

defendants. As to the Board, plaintiffs sought to overturn the

denial of the 2010 application and variance. As to the Borough,

plaintiffs asserted a claim of wrongful taking.

In a bifurcated proceeding, Judge Menelaos W. Toskos resolved

plaintiff's claims against the Board. In an October 22, 2012

written opinion, the judge affirmed the Board's decision. The

judge examined the record to determine if there was a basis to

grant a c(1) variance. Regarding the positive criteria, the judge

noted that the property presently conformed to all local

ordinances; plaintiff treated the property as one lot; and the lot

could accommodate expansion of the present house, a bigger house,

and a pool and patio. The judge also noted that the property

presently complied with the 50-foot frontage requirement, and the

lack of frontage in the rear of the property did not prevent

plaintiff from utilizing the entire property. The judge concluded

that the claimed undue hardship was self-created, as it will only

arise if the property is subdivided and if the proposed Lot 3.02

fronts Mayflower Drive.

Regarding the negative criteria, Judge Toskos found the

record supported the Board's determination that the driveway would

be a detriment to the public good. The judge concluded the record

14 A-0111-15T2
supported the Board's decision to deny the 2010 application and

variance, and the decision was not arbitrary, capricious, or

unreasonable.

Plaintiff filed an appeal, which we dismissed as

interlocutory. Plaintiff then proceeded against the Borough.

Plaintiff retained a new surveyor, who prepared a new survey in

June 2013, which now showed the frontage was 54.2 feet along

Mayflower Drive. Armed with this new expert and survey, and having

obtained a default against the Borough, plaintiff appeared at an

uncontested proof hearing before Judge Lisa A. Firko. In a July

23, 2015 judgment and written opinion, the judge ordered the

Borough to set a new right-of-way line on Mayflower Drive at 54.2

feet consistent with the new survey. However, the judge did not

order the Borough to compel the Board to change its denial of the

2010 application or variance.

On September 2, 2015, plaintiff filed an appeal from Judge

Toskos' October 22, 2012 judgment affirming the Board's denial of

the 2010 application and variance. On appeal, plaintiff argues a

c(1) variance is not required because Judge Firko established the

frontage along Mayflower Drive at 54.2 feet as a matter of law.

Plaintiff also argues that: (1) the burden of proof for a c(1)

variance was met; (2) even if the frontage was deficient, the

deficiency was de minimus; (3) the Board made an improper

15 A-0111-15T2
determination as to the safety of the driveway on Mayflower Drive;

(4) the Board's reliance on Ney was arbitrary, capricious, and

unreasonable; and (5) the Board's legal determination that a

variance was needed is not entitled to any presumption of validity.

We review the Board's decision using the same standard as the

trial court. Cohen v. Bd. of Adjustment of the Borough of Rumson,

396 N.J. Super. 608, 614-15 (App. Div. 2007). Like the trial

court, our review of a planning board's decision is limited. Smart

SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152

N.J. 309, 327 (1998). "[B]ecause of [its] peculiar knowledge of

local conditions," the Board's factual findings are entitled to

substantial deference and are presumed valid. Burbridge v. Twp.

of Mine Hill, 117 N.J. 376, 385 (1990) (quoting Medici v. BPR Co.,

107 N.J. 1, 23 (1987)). We give deference to a planning board's

decision and reverse only if its action was arbitrary, capricious,

or unreasonable. Zilinsky v. Zoning Bd. of Adjustment of Verona,

105 N.J. 363, 367 (1987). In reviewing a planning board's

decision, we must determine whether it was reasonably supported

by the record. Nextel of New York, Inc. v. Borough of Englewood

Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 38 (App. Div. 2003).

We give even greater deference to a planning board's decision

to deny a variance in preservation of a zoning plan. Ibid. Where

a planning board has denied a variance, the applicant must prove

16 A-0111-15T2
that the evidence before the board was "overwhelmingly in favor

of the applicant." Ibid. (quoting Ne. Towers, Inc. v. Zoning Bd.

of Adjustment of W. Paterson, 327 N.J. Super. 476, 494 (App. Div.

2000)). The Board's conclusions of law, however, are subject to

de novo review. Nuckel v. Little Ferry Planning Bd., 208 N.J.

95, 102 (2011) (citation omitted).

We decline to address plaintiff's argument that a variance

is not required because Judge Firko established the frontage along

Mayflower Drive at 54.2 feet as a matter of law. Our review is

limited to the record before the Board. Kempner v. Edison, 54

N.J. Super. 408, 417 (App. Div. 1959). In addition, we do not

address issues not raised before the trial court that are not

jurisdictional in nature or substantially implicate the public

interest. Zaman v. Felton, 219 N.J. 226-27 (2014) (citation

omitted). We also will not consider documents not presented to

the Board or Judge Toskos. See N.J. Div. of Youth & Family Servs.

v. M.M., 189 N.J. 261, 278 (2007). Accordingly, we focus on the

issues relating to the appeal of the October 12, 2012 judgment.

To obtain a "c" variance, the applicant must satisfy the

"positive criteria" and "negative criteria" embodied in N.J.S.A.

40:55D-70c(1). Cell S. of N.J. v. Zoning Bd. of Adjustment, 172

N.J. 75, 82 (2002). The burden of proving the positive and

17 A-0111-15T2
negative criteria for a "c" variance lies with the applicant. See

Ten Stary Dom P'ship. v. Mauro, 216 N.J. 16, 30 (2013).

"A c(1) variance requires proof of the 'positive criteria,'

which are predicated on 'exceptional and undue hardship' because

of the exceptional shape and size of the lot." Lang v. Zoning Bd.

of Adjustment of No. Caldwell, 160 N.J. 41, 55 (1999) (citation

omitted). To satisfy the "positive criteria," the applicant must

show

(a) by reason of exceptional narrowness,
shallowness or shape of a specific piece of
property, or (b) by reason of exceptional
topographic conditions or physical features
uniquely affecting a specific piece of
property, or (c) by reason of an extraordinary
and exceptional situation uniquely affecting
a specific piece of property or the structures
lawfully existing thereon, the strict
application of any regulation pursuant to
[N.J.S.A. 40:55D-62 to -68.6] would result in
peculiar and exceptional practical
difficulties to, or exceptional and undue
hardship upon, the developer of such property,
grant, upon an application or an appeal
relating to such property, a variance from
such strict application of such regulation so
as to relieve such difficulties or hardship[.]

[N.J.S.A. 40:55D-70c(1).]

An applicant must show that exceptional or undue hardship will

result if the variance is not granted. Chirichello v. Zoning Bd.

of Adjustment, 78 N.J. 544, 552 (1979). What is essential is that

18 A-0111-15T2
the unique condition of the property must be the cause of the

hardship claimed by the applicant. Lang, supra, 160 N.J. at 56.

The hardship criteria of a c(1) variance is unaffected by

personal hardship, financial or otherwise. Ten Stary Dom P'ship.,

supra, 216 N.J. at 29. 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, supra, 160 N.J. at 53. The hardship standard does not

require the applicant to prove that without the variance the

property would be zoned into inutility. Id. at 54. The applicant

need only demonstrate that the property's unique characteristics

inhibit the extent to which the property can be used. Id. at 55.

A c(1) variance is not available to provide relief from a self-

created hardship. Chirichello, supra, 78 N.J. at 553. Where the

hardship has been created by the applicant, a (c)(1) variance will

normally be denied. Jock v. Zoning Bd. of Adjustment, 184 N.J.

562, 591 (2005).

To satisfy the "negative criteria," the applicant must

demonstrate that: (1) the application relates to a specific piece

of property; (2) the purposes of the Municipal Land Use Law,

N.J.S.A. 40:55D-1 to -129, would be advanced by a deviation from

the zoning ordinance requirement; (3) the variance can be granted

without substantial detriment to the public good; (4) the benefits

19 A-0111-15T2
of the deviation would substantially outweigh any detriment; and

(5) the variance will not substantially impair the intent and

purpose of the zone plan and zoning ordinance. Jacoby v. Englewood

Cliffs Bd. of Adjustment, 442 N.J. Super. 450, 451 (App. Div.

2015); see also N.J.S.A. 40:55D-70c(1).

The "negative criteria" is not satisfied where "merely the

purposes of the owner will be advanced." Kaufmann v. Planning Bd.

of Warren, 110 N.J. 551, 563 (1988). 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 "negative criteria" is on the

characteristics of the land that present an opportunity for

improved zoning and planning for the benefit of the community.

Ibid. The "negative criteria" also focuses on the impact that the

variance will have on the specific adjacent properties affected

by the deviations from the ordinance, Lang, supra, 160 N.J. at

57, as well as any detriment to the zoning plan. Kaufmann, supra,

110 N.J. at 565.

The record amply supports Judge Toskos's and the Board's

finding that plaintiff failed to demonstrate the "positive

criteria" for a c(1) variance. Plaintiff's property is not unique

and contains no exceptional conditions or characteristics that

inhibit the extent to which the property can be used. Plaintiff

20 A-0111-15T2
purchased and treated the property as one lot that, as per the

deed and referenced survey, extended up to the street line of

Mayflower Drive. Plaintiff used the lot for residential purposes

and can continue to use the entire lot for that purpose. The lot

conforms with the LDR, and there is nothing on the lot itself that

is the cause of the claimed hardship. Rather, the proposed

subdivision and need for a variance creates the hardship. See

Chicalese v. Monroe Twp. Planning Bd., 334 N.J. Super. 413, 417

(Law Div. 2000). Thus, the alleged hardship is self-created.

In addition, plaintiff asserts that the curvature of

Mayflower Drive creates a hardship. However, difficulties created

by an off-site condition provide no basis for c(1) variance relief.

Menlo Park Plaza v. Woodbridge, 316 N.J. Super. 451, 461 (App.

Div. 1998). Accordingly, plaintiff failed to satisfy the "positive

criteria" and is not entitled to c(1) variance relief.

The record also amply supports Judge Toskos's and the Board's

finding that plaintiff failed to demonstrate the "negative

criteria" for a c(1) variance. The driveway serves only

plaintiff's purpose, see Kaufmann, supra, 110 N.J. at 563, and it

fails to meet stopping sight distance completely, intersection

sight distance partially, or provide minimum design and safety

requirements. The driveway creates an unsafe condition that would

be a detriment to the public health and safety.

21 A-0111-15T2
 We have considered plaintiff's remaining arguments in light

of the record and applicable legal principles and conclude they

are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E). We are satisfied that the record

amply supports the Board's decision to deny the 2010 application

and variance, and the Board's decision is not arbitrary,

capricious, or unreasonable.

Affirmed.

22 A-0111-15T2