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Rosenfeld v. Planning Board of the City of Cape May

August 9, 2007


On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-127-05.

Per curiam.


Argued July 24, 2007

Before Judges Gilroy and Lihotz.

Plaintiff Hy Rosenfeld is the owner of Lots 56 and 58, Block 1160, as designated on the tax map of the City of Cape May. The properties are located in the N.C. (neighborhood commercial) Zone. Lot 56 fronts on Texas Avenue and is occupied by a single structure containing two retail commercial entities.

Lot 58 is located to the rear of Lot 56, is irregularly-shaped and vacant, and although it does not front on a public street, it has access to and from Yacht Avenue via a fifteen-foot-wide easement across adjoining Lot 55.01, owned by a third party.

On November 24, 2003, plaintiff made application to the defendant Planning Board of the City of Cape May for a minor subdivision with variances. The application sought to realign the lot lines between Lots 56 and 58, decreasing the lot area for Lot 56 to 13,589 square feet, and increasing the lot area for Lot 58 to 19,234 square feet. Although the proposed area for each lot would continue to exceed the minimum lot area for properties in the zone, the application required eight minor variances, several of which were pre-existing, albeit in a lesser degree of deviation. Under the proposed plan, sixteen feet of the easterly portion of Lot 56 is to be added to Lot 58, resulting in Lot 58 having a sixteen-foot frontage on Texas Avenue, thereby providing a means of ingress and egress to and from Texas Avenue, rather than through the fifteen-foot wide easement across Lot 55.01, the latter not recommended by the City's Department of Public Works.

Following approval of the proposed plan by the Cape May County Planning Board and the New Jersey Department of Environmental Protection, the Board heard the application on February 9, 2005. At the close of the presentation, the Board voted to grant plaintiff's application for waiver of site plan approval but voted to deny the application for a subdivision. A confirming resolution was adopted by the Board on March 8, 2005.

On March 21, 2005, plaintiff filed an action in lieu of prerogative writs, seeking to overturn the decision of the Board. On January 23, 2006, Judge Valerie H. Armstrong issued a written opinion: 1) reversing the Board's decision denying subdivision approval, determining it arbitrary, capricious, and unreasonable; and 2) granting the subdivision with variances, "subject to all the conditions to which plaintiff agreed during the Board hearing, and subject to the conditions set forth in the Board's engineer report to which [plaintiff] consented at the time of the Board hearing." A confirming order was entered the same day.

On appeal, defendant argues that the trial judge erred in reversing the Board's decision, not citing "sufficient reasons as to how [plaintiff] had met the positive and negative burdens imposed by N.J.S.A. 40:55d-70(c)(1) and (2)." Defendant contends that the trial judge failed to give substantial deference to the Board's decision denying the application.

On appeal from a decision of a municipal board on zoning and planning matters, the trial court is limited to determining whether the Board's decision was arbitrary, unreasonable, or capricious. Cell South v. Bd. of Adjustment of West Windsor Twp., 172 N.J. 75, 81 (2002); Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296 (1965). A local board's decision is presumed valid, and the party challenging the decision has the burden proving otherwise. Cell South, supra, 172 N.J. at 81. In reviewing a local decision, the court must determine whether the board followed the statutory guidelines and properly exercised its discretion. Burbridge v. Governing Body of Mine Hill, 117 N.J. 376, 385 (1990). Because variances tend to impair sound zoning, a court should give "greater deference to variance denials than to grants of variances." Med. Ctr. v. Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div.), certif. denied, 170 N.J. 388 (2001). The standard of review is the same for both the Law Division and the appellate tribunal. Bressman v. Gash, 131 N.J. 517, 528-29 (1993).

We have carefully considered defendant's arguments in light of the applicable law and the briefs. We are not persuaded by the arguments and affirm substantially for the reasons expressed by Judge Armstrong in her thoughtful and comprehensive written opinion of January 23, 2006. R. 2:11-3(e)(1)(A) and (E).


20070809 ...

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