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Ronald and Linda Urban v. Planning Board of Borough of Manasquan

Decided: January 23, 1990.

RONALD AND LINDA URBAN, (A-1062); RAYMOND M. TOMASSO, JR., RAYMOND TOMASSO, SR. AND DOROTHY TOMASSO (A-1113); IRA SCHULMAN (A-1123); ROBERT R. ZANES (A-1311); AND DAVID AND JUDY SHIRLEY (A-1315), PLAINTIFFS-RESPONDENTS,
v.
PLANNING BOARD OF THE BOROUGH OF MANASQUAN, MONMOUTH COUNTY, NEW JERSEY, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Antell, Ashbey and Stein. The opinion of the court was delivered by Ashbey, J.A.D.

Ashbey

[238 NJSuper Page 107] The Manasquan Planning Board appeals from five prerogative writ judgments setting aside the Board's denial of plaintiffs' subdivision applications to create two non-conforming lots from one lot, each containing dwelling units built before its first (1947) zoning ordinance.*fn1 The Board denied the applications

in order to keep the lots in single ownership and eventually to conform them to existing zoning requirements. The Law Division reversed, citing Beers v. Bd. of Adjust. of Wayne Tp., 75 N.J. Super. 305, 183 A.2d 130 (App.Div.1962) and MacLean v. Planning Bd. of Brick Tp., 94 N.J. Super. 288, 228 A.2d 85 (App.Div.1967). We hold that Beers and MacLean do not compel this result and accordingly reverse.*fn2

An understanding of the background considered by the Board is essential. Manasquan is a community bordering on the Atlantic Ocean with a population of approximately 5,200 which increases greatly with seasonal residents during the summer months. In recent years, property values in Manasquan have risen rapidly. Manasquan's zoning ordinances, beginning in 1947, provided that each improved lot must front upon a street. Two or more principal dwellings on a single lot were prohibited. However, as of the time of these applications, the municipality had approximately 171 lots containing more than one residential structure, of which the vast majority were lots with two residential structures. In addition, a 20 to 25-acre parcel owned by the American Timber Company contained between 350 and 400 dwelling units, mostly small single-family bungalows built in the 1930s or perhaps earlier.*fn3 Many parts of the municipality, particularly those near the beach, were intensively developed, so much so that the municipality's fire code official testified that it is difficult to fight fires because the buildings are too close together, many without street access.

While there were varying reasons for the Board's denial of the subdivision applications, there was one central basis of the

Law Division reversals -- the application of the doctrine enunciated in Beers v. Bd. of Adjust. of Wayne Tp. and MacLean v. Planning Bd. of Brick Tp. In Beers, plaintiff's lot contained five bungalows constructed prior to zoning requirements, each of which faced a street and was occupied by a purchaser under contract of sale in the post-war housing shortage. In good faith reliance on the contract of sale, each purchaser had improved the property. 75 N.J. Super. at 311, 183 A.2d 130. The subdivision of undersized lots was consistent with the other houses in the neighborhood. Id. at 309, 183 A.2d 130. In accord with his contract, plaintiff had given deeds to the equitable owners, one of whom insisted on subdivision approval. Plaintiff unsuccessfully sought subdivision approval and then a variance from the board of adjustment.

We held that plaintiff had the right to subdivide the property under the Municipal Planning Act of 1953, N.J.S.A. 40:55-1.1 et seq. We said that the "mere drawing of appropriate lot lines [around the dwellings] . . . would not create substantial as distinguished from theoretical discrepancies with the zoning ordinance not existing before such new lines were drawn and before the zoning ordinance was adopted." Id. at 317, 183 A.2d 130. (emphasis in original).

In MacLean v. Planning Bd. of Brick Tp., we interpreted Beers to include the right of a property owner to subdivide a lot with four seasonally rented bungalows. The applicant had inherited a tract 88 feet wide and 670 feet long, running from a major road to the ocean. Although the four bungalows were physically situated between those two points, there was an access road which the municipality had paved. We referred to this access as a "roadway" for which the municipality had a right to seek dedication. In between Beers and MacLean, came Popular Refreshments Inc. v. Fuller's Milk Bar, 85 N.J. Super. 528, 542, 205 A.2d 445 (App.Div.1964), certif. den. 44 N.J. 409, 209 A.2d 143 (1965). We held that a commercial landowner was not entitled to a subdivision as a matter of right in order to comply with its obligation to sell part of the tract to its

commercial tenant, although the tenant had a commercial structure in place before the passage of a restrictive ordinance. We held that this circumstance did not constitute a permanent development of the land which precluded the economic use of the property as a whole. We narrowed Beers to its facts, the devotion of an entire tract to development of separate homesites, each improved by a dwelling.

More recently, in Orloski v. Planning Bd., 234 N.J. Super. 1, 559 A.2d 1380 (App.Div.1989), we affirmed that part of Judge Serpentelli's holding (reported at 226 N.J. Super. 666, 668 to 676, 545 A.2d 261 (Law Div.1988)), that Beers did not apply to mandate a subdivision where plaintiffs, like these plaintiffs, had lots with two dwellings. There the judge found that one structure was designated as "main building" and the other as a "cottage," originally a garage but converted prior to restrictive zoning.*fn4 Judge Serpentelli rejected plaintiffs' reliance on Beers to establish their unqualified right to subdivide because, of the two units, one never attained the status of a principal residence nor the status of equally used structures, unlike the bungalows in Beers or MacLean.

In the Board's resolutions denying the subdivision applications, it expressly found Beers inapplicable because Manasquan (1) had many more multiple-structure lots than the municipality there involved; (2) several resulting lots would have no street frontage; (3) allowing subdivision would have a devastating impact upon the Manasquan Zone Plan. Its general conclusions relied on the Board's consultant who said that creating small lots would defeat zoning efforts because an owner of a destroyed structure would have a clear case of hardship to justify rebuilding, whereas if the lots were left in one ownership, the

loss of one of two units would not necessarily have the same result.*fn5

Individually the resolutions cited specifically: (1) inadequate parking in the lots of Urban, Tomasso, Schulman and Zanes; (2) elevating accessory or "auxiliary" structures to separate and independent status in the cases of Shirley, Schulman and Zanes; (3) lack of street frontage in the cases of Shirley and Zanes and lack of frontage and access in the case of Schulman. Finally, the Tomasso resolution cited the intent of the master plan and zoning ordinance to upgrade lot sizes in the zone in which the Tomasso structures were located, a plan which the municipality's planning consultant testified had been successful prior to subdivision applications such as these.

Of the several plaintiffs, only plaintiff Tomasso presented a professional planner in support of his application. He testified that multiple-structure lots were fairly common in resort towns and subdivisions were harmless because they did not alter the use of the property, only the ownership. In his opinion, the municipality could declare a blight to reduce the overcrowding. He admitted, however, such a remedy was probably unrealistic in view of the high property values.

It is axiomatic that where a statute gives a local board the discretion to grant certain relief, a court may intervene only upon a showing that the board's decision was arbitrary, unreasonable or capricious. Kramer v. Bd. of Adjust., Sea Girt, 45 N.J. 268, 296, 212 A.2d 153 (1965). A board's resolution of factual issues must stand if supported by sufficient credible evidence in the record. Rowatti v. Gonchar, 101 N.J. 46, 51, 500 A.2d 381 (1985). A board's determination of a legal issue, however, is entitled to no particular deference since the courts are equipped to resolve issues of law. Cherney v. Zoning Bd. of Adj., 221 N.J. Super. 141, 145, n. 1, 534 A.2d 41 (App.Div.1987);

Grancagnola v. Planning Bd., 221 N.J. Super. 71, 75 n. 5, 533 A.2d 982 (App.Div.1987); Jantausch v. Borough of Verona, 41 N.J. Super. 89, 96, 124 A.2d 14 (Law Div.1956), aff'd 24 N.J. 326, 131 A.2d 881 (1957).

We begin with the Board's argument that all of these applications, like those in Orloski (except that of Tomasso), concerned two structures one of which could reasonably be viewed as accessory to the other.*fn6 An accessory use is one which is customarily incidental and subordinate to the principal use of the property. See e.g., Charlie Brown of Chatham v. Board of Adjustment of Chatham, 202 N.J. Super. 312, 322-323, 495 A.2d 119 (App.Div.1985); State v. P.T. & L. Construction Co., Inc., 77 N.J. 20, 26-27, 389 A.2d 448 (1978); Chatham v. Donaldson, 69 N.J. Super. 277, 282, 174 A.2d 213 (App.Div.1961). The Law Division rejected the application of Orloski, then a Law Division opinion, concluding that under Beers and MacLean, if some form of residential structure existed prior to the advent of zoning restrictions, whether that structure was originally accessory was irrelevant, provided two separate dwelling units were created before zoning was effected. Orloski however expressly rejected this interpretation of Beers. 226 N.J. Super. at 670, 545 A.2d 261.

We recognize that Judge Serpentelli relied on the fact that the Orloski "cottage" had never lost its accessory quality, a factor which differs from some of the within applications. The other circumstances supporting his decision as affirmed, however, seem to ...


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