SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1169-17T2

JOHN and MARY 

SCHEIBELHOFFER,

Plaintiffs-Appellants,

v.

BRICK TOWNSHIP ZONING

BOARD OF ADJUSTMENT,

Defendant-Respondent.

____________________________

Argued December 17, 2018 – Decided March 8, 2019

Before Judges Haas and Mitterhoff.

On appeal from Superior Court of New Jersey, Law 

Division, Ocean County, Docket No. L-0719-17.

John J. Jackson, III argued the cause for appellants 

(King, Kitrick, Jackson & McWeeney, LLC, attorneys; 

John J. Jackson, III, on the briefs).

Ronald D. Cucchiaro argued the cause for respondent

(Weiner Law Group LLP, attorneys; Ronald D. 

Cucchiaro, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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This is an appeal of the trial court's decision concerning an action in lieu 

of prerogative writs in which plaintiffs John and Mary Scheibelhoffer 

challenged the decision of the Brick Township Board of Adjustment's (the 

"Board") partial denial of their application for variance. For the reasons that 

follow, we conclude that once the trial court determined that the subject 

property's size and configuration gave rise to a hardship pursuant to N.J.S.A. 

40:55D-70(c)(1) of the Municipal Land Use Law ("MLUL"), it was compelled 

to reverse and remand to the Board to weigh the positive criteria established by 

the hardship against the negative criteria. Therefore, we now reverse and 

remand the matter to the Board to conduct the appropriate (c)(1) weighing test.

Plaintiffs are the owners of a single family residence located in the 

Mantoloking Shores neighborhood of Brick, New Jersey (the "property"). The 

subject property is designated as Block 44.21, Lot 6 on the official map of the 

Township of Brick. The property contains 7,834 square feet and is an undersized 

corner lot which has 120.94 feet of frontage along the northerly side of Tide 

Pond Road and 80.90 feet of frontage along the easterly side of Wherry Lane. 

The property is bordered to the east by a lagoon. The property is situated in the 

R-7.5 (Single-Family Residential) Zone, as are adjacent residential properties to 

the north. The property is bordered to the east by a lagoon. It is essentially a 
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pie-shaped lot with two front yards, one located on Tide Pond Road and one 

located on Wherry Lane.

Plaintiffs' home was substantially damaged as a result of the impact of 

Hurricane Sandy in October 2012. In 2013, the home was elevated three feet 

and the rear deck adjacent to the lagoon was reconstructed and elevated by two 

feet. The contractor hired by plaintiffs represented that all work was done in 

compliance with the permits; however, plaintiffs later discovered that the 

contractor had not built the deck, hot tub and awning in compliance with the 

construction permit and approved plans. According to plaintiffs, they were

unaware of the deviations because the contractor stated that everything was 

being built in accordance with what was permitted. The alterations ultimately 

forced plaintiffs to seek variance relief to legitimize the improvements so 

plaintiffs could obtain a certificate of occupancy. 

On December 14, 2016, the Board held a hearing regarding plaintiffs'

application for variance relief. At the hearing, plaintiffs relied on the expert 

testimony of an engineer and planner, Charles Lindstrom, P.E., P.P. Two 

objecting neighbors, Linda Sampson and Kathy Rosman, both of whom live on 

adjacent properties on Wherry Lane, were represented by attorney Adam 

Steurmann, Esq. The objectors urged the Board to deny plaintiff's application 
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because the improvements as constructed compromised their privacy and 

represented a "self-created" hardship. Mr. Lindstrom testified that 

there's certainly a hardship here with the size and shape 

of the lot. It is undersized. It's required to be 9,000 

square feet. It's 7,854 square feet. It has a shape that 

narrows down to the rear. It had a house on it that was 

raised and the appurtenant structures had to be raised 

with it to accommodate the doorways and the access 

points. 

Lindstrom testified that in connection with the improvements, plaintiffs 

relocated the hot tub to a grade-level platform paver pad that sits to the left of 

the raised deck in the side yard. Plaintiff testified that he had an electrical 

inspection done for the hot tub. Mr. Lindstrom testified that the hot tub is "fairly 

well screened by the vegetation around it. I don't think the hot tub has any 

negative impact on anything, because it's just down on the ground[.]" Mr. 

Lindstrom further testified that the hot tub is in an "appropriate location, even 

though it's in the front yard. It's away from any other neighbors." He testified 

that he did not believe there would be "any negative impact whatsoever [from 

approving the hot tub location and the awning] . . . because they do not affect 

any adjoining properties." 

Ultimately, the Board approved the variances related to two pre-existing 

non-conforming sheds; lot coverage; the deck; the boundary line fence; and bulk 
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variance for the non-conforming lot dimensions. However, the Board denied 

the variances related to the location of the hot tub and the awning over the deck. 

In a February 1, 2017 Resolution, the Board concluded that plaintiffs were not 

entitled to consideration of a hardship variance, based on its agreement with the 

objectors that any hardship was self-created. Analyzing the application pursuant 

to N.J.S.A. 40:55D-70(c)(2), the Board found that plaintiffs failed to establish 

the positive criteria for a (c)(2), or "flexible c," variance, which allows for a 

variance

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, grant a variance 

to allow departure from regulations pursuant to article 

8 of this act; provided, however, that the fact that a 

proposed use is an inherently beneficial use shall not be 

dispositive of a decision on a variance under this 

subsection[.]

[Ibid.]

Approval of a (c)(2) variance is based on the purposes of the zoning 

ordinance, not on the advancement of the goals of the property owner. Ten Stary

Dom P'ship v. Mauro, 216 N.J. 16, 30 (2013) (citing Kaufmann v. Planning Bd. 

for Warren Twp., 110 N.J. 551, 562-63 (1988)). "Thus, the positive criteria 

include proof that the characteristics of the property present an opportunity to 
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put the property more in conformity with development plans and advance the 

purposes of zoning." Ibid. (citing Kaufmann, 110 N.J. at 563-64). 

The Board's February 2017 Resolution found that plaintiffs failed to show 

that the relocated hot tub and awning met the positive criteria for a (c)(2)

variance. The Board also concluded that plaintiffs failed to satisfy the negative 

criteria concerning the hot tub or the awning. The Board found that the awning 

"restricts sufficient air, light and open space on the property" because it "extends 

14.8 feet from the easterly side of the home and is 22.3 feet wide." The Board 

also concluded that the hot tub "benefits only [plaintiffs] and not the public; 

does not create a more desirable visual environment and, therefore, does not 

advance the intent and purpose of the Municipal Land Use Law." The Board 

further concluded that "the encroachment of the front and side yard setbacks by 

the awning/canopy and hot tub will have a detrimental effect on neighboring 

properties." The Board further found that awnings and hot tubs are not 

commonly found in the neighborhood. As a result, the Board denied plaintiffs'

variance applications for the hot tub and the awning. 

Plaintiffs filed an action in lieu of prerogative writs to challenge the 

Board's denial of variance relief for the hot tub and the awning. An action in 

lieu of prerogative writs is "a comprehensive safeguard against official wrong,"
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Mullen v. Ippolito Corp., 428 N.J. Super. 85, 102 (App. Div. 2012) 

(quoting Garrou v. Teaneck Tryon Co., 11 N.J. 294. 302 (1953)), that allows a 

citizen to challenge a municipality's action or inaction. On appeal, our standard 

of review is the same as that of the trial court that considered the municipal 

action. See Cohen v. Bd. of Adjustment of Borough of Rumson, 396 N.J. Super.

608, 614-15 (App. Div. 2007). Municipal actions are upheld unless arbitrary, 

capricious or unreasonable. Berkeley Square Ass'n, Inc. v. Zoning Bd. of 

Adjustment of Trenton, 410 N.J. Super. 255, 263 (App. Div. 2009).

In their action before the trial court, appellants asserted that the Board 

erred in concluding that the hardship creating the need for a variance to permit 

the hot tub and awning was "self-created." The trial court agreed, concluding 

that appellants' irregular lot size and shape created a hardship as defined by

N.J.S.A. 40:55D-70(c)(1) of the Municipal Land Use Law ("MLUL"). 

Specifically, the trial court found 

that the shape of this lot, to the extent that it is irregular 

and nonconforming in size as required by the zone, and 

the inability of the property owner to make the lot 

conforming in size as required by the zone, and the 

inability of the property owner to make the lot 

conforming, does create a "hardship" as specified by 

[the MLUL]. The shape of this lot, the location on the 

lagoon, and the dual front yard setbacks create unusual 

circumstances in which compliance with the normal 
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dictates of the zoning requirements would satisfy the 

"hardship requirement" for a c(1) variance.

The trial court also found that the Board erred in finding that the hardship 

was "self-created." Nonetheless, the trial court found that plaintiffs did not 

sustain their burden of proving the "negative criteria" for a variance. The trial 

court noted that "[t]he Board found that hot tubs and canopies of the proposed 

size were not commonly found in the neighborhood; that they detracted from the 

open space created by setbacks; and were detrimental to the purposes which the 

set-back regulations sought to promote." Thus, the trial court affirmed the 

Board's denial of plaintiffs' applications for variances for the hot tub and the 

awning. 

On this appeal, plaintiffs allege that the trial court erred by, in essence, 

usurping the Board's function in its determination that the Board correctly found 

that plaintiffs' failure to establish the negative criteria was fatal to plaintiffs' 

application. In that regard, plaintiffs assert that once the court found that 

plaintiffs established a prima facie entitlement to a (c)(1) hardship that was not 

"self-created," the court was required to reverse and remand to allow the Board 

to conduct a proper weighing of the positive criteria, established by the (c)(1) 

hardship, against the negative criteria. Having reviewed the record and in light 

of the applicable law, we are constrained to agree.
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The statutory authority for the "hardship variance" is found in N.J.S.A. 

40:55D-70(c)(1), which states,

Where: (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 

article 8 of this act1 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. 

The above hardship is known as the "positive criteria" required for a (c)(1) 

variance. See Jock v. Zoning Bd. of Adjustment of Twp. of Wall, 184 N.J. 562, 

575 (2005); Nash v. Board of Adjustment of Morris Twp., 96 N.J. 97, 102 

(1984). The applicant bears the burden of establishing that the particular 

conditions create a hardship. Ten Stary Dom Partnership v. Mauro, 216 N.J. 16, 

29 (2013). Hardship, under (c)(1), "refers solely to the particular physical 

condition of the property, not personal hardship to its owner, financial or 

otherwise." Jock, 184 N.J. at 590. 

Applicants for a variance under (c)(1) must also satisfy the "negative 

criteria:"
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No variance or other relief may be granted under the 

terms of this section, including a variance or other relief 

involving an inherently beneficial use, without a 

showing that such variance or other relief can be 

granted without substantial detriment to the public good 

and will not substantially impair the intent and the 

purpose of the zone plan and zoning ordinance. 

[N.J.S.A. 40:55D-70(d). See also Nash, 96 N.J. at 102.] 

A zoning board must balance these negative criteria against the positive criteria. 

See Yahnel v. Bd. of Adjustment of Jamesburg, 79 N.J. Super. 509, 519 (App. 

Div. 1963). In construing a previous zoning statute in Yahnel, we described the 

balancing of the positive and negative criteria: 

Obviously, any permission for a nonresidential use in a 

residential zone may have some tendency to impair 

residential character, utility or value. But the statutory 

rationale of the function of the board of adjustment is 

that its determinations that there are special reasons for 

a grant of variance and no substantial detriment to the 

public good or impairment of the zone plan, etc., in 

such grant represent a discretionary weighing function 

by the board wherein the zoning benefits from the 

variance are balanced against the zoning harms.

[Ibid. (emphasis added).]

Similarly, in this case, the negative criteria required for a (c)(1) variance cannot 

be analyzed separate and apart from the positive criteria.

Guided by these principles, we conclude that the Board was unable to 

discharge its statutory duty to weigh the positive criteria established by the 
11 A-1169-17T2

hardship against the negative criteria, because it wrongly concluded that the 

hardship was self-created. Thus, the Board did not perform the balancing test 

required for a (c)(1) variance. The Board analyzed the positive and negative 

criteria only in the context of a (c)(2) variance. A (c)(2) variance merely 

required the Board to weigh the detriment to the public good against the extent 

to which plaintiffs' variance would further the purposes of the MLUL, and does 

not take into account any hardship posed by the property's configuration. See

N.J.S.A. 40:55D-70(c)(2). For that reason, we reverse the trial court's order and 

remand the matter to the Board for further proceedings in accordance with this 

opinion. 

To the extent any remaining arguments are not addressed in this opinion, 

they are without sufficient merit to warrant discussion in a written opinion. 

R. 2:11-3(e)(1)(E).

Reversed and remanded. We do not retain jurisdiction.