This opinion addresses three issues arising out of the Appellate Division companion cases of El Shaer v. Planning Board of Lawrence, 249 N.J. Super. 323, 592 A.2d 565 (App. Div.), certif. denied, 127 N.J. 546 (1991), and Pizzo Mantin Group v. Randolph Tp., 261 N.J. Super. 659, 619 A.2d 676 (App. Div.) certif. granted, N.J. (1993). First, must a planning board's review of a subdivision application be restricted to the standards of a municipality's subdivision and zoning ordinance? If not, what other municipal regulations may a planning board consider? Lastly, to what extent is the board's discretion limited in cases involving the mere consolidation of pre-existing, conforming lots?
Plaintiffs own property which consists of three lots designated as lots 16, 18 and 20 as shown on the tax map of the Borough of Barnegat Light. All three are contiguous and abut Sixth Street which runs from its westerly intersection with Central Avenue to its easterly terminus at the Atlantic Ocean beach front. Lot 20 is adjacent to the beach front, lot 18 is to the west of lot 20 and lot 16 is to the west of lot 18. A home is situated principally on lot 16 although a portion of a deck and wooden walkway are located within lot 18. A free standing deck is located principally on lot 18, with a portion of it extending onto lot 20.
The property is in a R-B zone which permits single family detached dwellings on lots containing a minimum of 5,000 square feet and a minimum frontage of 50 feet. Each of the lots conforms to all bulk requirements of the zoning ordinance.
The plaintiffs purchased the premises on June 7, 1976. At the time of acquisition, the plaintiffs obtained a letter from the borough clerk certifying that the two vacant lots, 18 and 20, were "buildable lots at this time" and that "a building permit can be issued immediately subject to the building line established by the Borough Engineer and providing that all requirements of the Codified Ordinances of the Borough are complied with."
After the plaintiffs purchased the premises, the Borough of Barnegat Light enacted an ordinance referred to in these proceedings as Chapter XI of the Code of the Borough of Barnegat Light (hereinafter Chapter XI). This ordinance is independent of the subdivision and zoning regulations contained elsewhere in the Code. Chapter XI restricts construction in "beach-dune" areas. Lots 18 and 20 fall within the boundaries of that area.
On September 29, 1987, the Borough entered into a contract with the New Jersey Department of Environmental Protection and Energy (hereinafter DEPE), by which the Borough agreed that, in consideration of the DEPE approving the pass through of certain federal funds to the Borough for beach-dune restoration, the Borough would amend Chapter XI. In essence, the amended Chapter prohibits disturbance of beach-dune areas except for specified purposes and even then only subject to severe restrictions on permitted uses. The effect of Chapter XI is to prohibit totally the construction of any residence within a beach-dune area.
In August 1992, the plaintiffs applied to the Planning Board for preliminary and final subdivision approval. The plaintiffs sought to resubdivide three lots into two lots designated as 16.01 and 18.01. Each new lot would then be 75 feet wide and 125 feet deep. The existing home would remain on Lot 16.01. A hearing was held on the application on August 25, 1992, at the Conclusion of which the board denied the application.
A memorializing resolution was adopted on September 29, 1992, on which date the board also entertained an application for reconsideration of its decision. At the Conclusion of that hearing, the board again denied the application. A second memorializing resolution was thereafter adopted on October 27, 1992. An appeal to this court followed.
The Planning Board's resolutions reveal that the principal reason for denial of the subdivision application is the impact of Chapter XI on beach-dune construction. In fact, the dune restrictions of Chapter XI were the subject of most of the debate before the Planning Board at both hearings. Essentially, the Board members recognized that the plaintiffs' proposal conformed to all bulk requirements of the zoning ordinance. They also acknowledged that lot 20 was a conforming vacant lot, whether or not the subdivision was granted. Additionally, with the removal of the deck and walkway encroaching on lot 18, the plaintiffs would have two conforming vacant lots. Some Board members feared that approval of the proposed lot consolidation would violate Chapter XI and the DEPE agreement and that, as a result, the DEPE would void its agreement with the Borough. In part, these members relied upon an April 8, 1992 letter from the DEPE to Alvin Goldstein which concluded that the entire area of the proposed lot would be considered dunes and that "the proposed subdivision and construction on this property would be considered a violation of the Agreement."
In response, Goldstein argued that the Board should not concern itself with Chapter XI or the agreement. He readily conceded that the application for a subdivision was only a first step in the process of ultimately obtaining approval to build on the vacant lot. He stressed that he was not seeking a variance or other relief from the terms of Chapter XI. Indeed, he agreed that the Board could grant the application conditioned on such other governmental approvals as might be required, including relief from the terms of Chapter XI.
The reasons for the Board's denial of the application at the first hearing are contained within paragraphs 8, 9 and 11 of the resolution.
(8) The proposed subdivision does not comply with the provisions of the Borough Ordinances and does adversely affect the public health and welfare;
(9) The Boards [sic] specifically notes that these premises are located on the Beach - Dune areas and as such are affected by Ordinance Chapter XI Waterfront and Waterways, Sections 11-1 Delineation of Beach and Dune Area/State Aid Agreement Number 1512, of which, this Board is unable to grant relief;
(11) In addition, the Board notes that the NJDEPE has determined that the proposed subdivision and construction on this property would be in violation of the Borough Ordinance and the State Aid Agreement and, therefore, if the Board grants this application, it would be ...