On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. MON-L-373-03.
Before Judges Wefing, Payne and C.S. Fisher.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The trial judge determined that the Millstone Township Planning Board arbitrarily denied plaintiff Neil K. Mintz's application for subdivision approval. In denying the application, the board relied upon its belief -- based upon the memories of some residents, and an ambiguous at best, erroneous at worst, reference in its records -- that a condition of its approval of Mintz's predecessor's application was a restriction on any further subdivision. Because we agree with the trial judge's conclusion that this alleged restriction was neither memorialized nor recorded and, as a result, should not be enforced, we affirm.*fn1
The property in question consists of two separate six-acre lots -- one owned by Mintz and the other by Harold and Janet Torkelsen (Torkelsen) -- that were once part of an approximately seventy-acre tract owned by David and Grace Antonowsky (Antonowsky). The Mintz and Torkelsen lots were created in 1980 when Antonowsky obtained approval to subdivide his seventy acres into twelve lots.*fn2 Proposed intervenor Michelle Orlick owns another of the lots subdivided from Antonowsky's seventy-acre tract. In 2002, Mintz filed applications with the board, seeking to subdivide two of the six-acre lots that were created by Antonowsky's subdivision in 1980 -- lot 2.01 that he owns and lot 2.02 that he was under contract to purchase from Torkelson -- into four three-acre lots.
The applications complied with all zoning requirements, but the board determined, after hearing testimony on three different occasions, that any further subdivision of these lots was prohibited by an earlier restriction. This restriction was not contained in the ordinance that approved the Antonowsky subdivision, in the subdivision deed thereafter filed by Antonowsky, or in any deed by which Antonowsky thereafter conveyed any of the other lots to others. Nevertheless, the board concluded that such a restriction was imposed at the time Antonowsky's application was approved and should be enforced to defeat Mintz's application. The board reached this determination through its reliance upon anecdotal evidence, including the memories of individuals as to what they believed occurred when Antonowsky's application was granted in 1980.
For example, it was undisputed that the minutes of the September 24, 1980 board meeting do not reveal that a restriction on any further subdivision was ever placed on the lots resulting from the Antonowsky subdivision:
Mr. [and] Mrs. Antonowsky and Mr. Bruce Rittenhouse, Engineer, were present for this second review of a 12 lot subdivision. Taxes are paid to date. Approvals have been received from Monmouth County and East Windsor Township Planning Boards. The application qualifies as a minor subdivision as the proposed lots contain 6 acres except for one lot within each original tract of land. Map shows that road widening is given to create a 50 foot right of way for all Township roads. After review by the Board, Mr. Hudson asked that a motion be made for approval of the application subject to the Board Engineer's request for a 25 foot radius on the corners of Gordon and Nurko Roads and for road widening. Mr. Littman so moved for approval. Motion was seconded by Mayor Abate. Roll call vote indicated approval by the six Board Members present.
However, under the"New Business" section of the minutes of the October 8, 1980 meeting, it was stated that
The application of Sub 23-80 (Sands) was discussed. Mayor Abate asked that a restriction be put on the map that these lots will not be further subdivided. It was so decided by the Board.
While"Sub 23-80" is the identification number assigned by the board to an application by someone named Sands and not Antonowsky, whose application was numbered"Sub 22-80," in considering Mintz's application the board took the position that the minutes' erroneous reference to Sands and his application actually related to the Antonowsky application. Thus, through this inaccurate reference in the minutes of the October 8, 1980 board meeting, the board concluded that further subdivision of the Antonowsky lots was precluded.
In addition, the board relied upon the statements of persons in the community that the intent underlying the 1980 Antonowsky subdivision was that each subdivided lot remain a six-acre"farmette." One board member also indicated that he"remembered" that this was the intention of the board in granting Antonowsky's application. Michelle Orlick*fn3 testified that other owners of the Antonowsky lots"were under the belief," as a result of what they were told,"that there could be no further subdivision of these mini farms." She also told the board of her attempts to locate the"subdivision folder" created at the time of Antonowsky's application. On November 13, 2002, Orlick testified that the subdivision folder had not been located but that
[T]he evidence is definitely building, that there is a resolution on its original minor subdivision. We have the information that the residents were given on purchase, the memories of two members of the board that have nothing to do with this purchase. Notation in the left-hand column from 9/24/80 minutes, that there is a resolution and the ...