On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-4927-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2007
Before Judges Skillman and Winkelstein.
Plaintiffs own a parcel of real property in Millstone Township, Monmouth County. They applied to defendant Millstone Township Planning Board (the Board) to subdivide the property into two lots; the application also sought bulk variances. After public hearings in August and September 2005, the Board denied the application, memorializing its decision in a resolution on October 6, 2005.
Plaintiffs filed a complaint challenging the Board's decision. In their first count, they claimed that the Board's decision was arbitrary, capricious and unreasonable. In the second and third counts, they asked the court to set aside the Board's decision that they did not qualify for relief under the zoning ordinance's grandfather clause. They also sought relief against the Township, asking the court to invalidate portions of the zoning ordinance.
In a written opinion on October 6, 2006, the Law Division concluded that the Board's decision was arbitrary and capricious. The court also found that plaintiffs were entitled to relief under the ordinance's grandfather clause. Consequently, the judge directed the Board to adopt a resolution granting plaintiffs' minor subdivision and bulk variance application. In an order of October 30, 2006, the court dismissed counts two and three of the complaint.
On appeal, the Board claims that the trial judge failed to apply the proper standard of review, failed to give its action a presumption of validity, and instead substituted his own judgment for the Board's. We agree. Accordingly, we reverse and reinstate the Board's decision.
Plaintiffs' property is located in the Township's RU-P Rural Preservation Zone District, which allows only for the development of single family homes on lots with a minimum lot area of ten acres, and minimum lot frontage and width of 250 feet. The frontage of plaintiffs' lot is 400 feet along Agress Road. The property is irregularly shaped and "encumbered with wetland buffer and steep sloped areas." The only structures on the property are "an existing two story residential dwelling with [a] . . . barn, shed, pool and driveway."
The current use is as a single family residence. Plaintiffs proposed to create a new lot for the existing residence and an additional building lot by dividing the single parcel into two lots: lots 27.15 and 27.14. The Board summarized plaintiffs' requests for relief as follows:
The Applicant proposes to subdivide the parcel to create two (2) lots. Proposed lot 27.15 will have a lot area of six (6) acres where ten (10) acres are required in the RU-P Zone and will retain the existing residence. A Variance is required for deficient lot area for this proposed parcel. Proposed lot 27.14 will have a lot area of four (4) acres where ten (10) acres are required in the RU-P Zone and will require a Variance for lot area. That parcel is proposed to be developed with a new single family residence. That lot will also have deficient lot frontage of 146.83 ft. where 250 ft. are required and lot width of 171.56 feet where 250 ft. are required. Variances are required for these non-conformities for proposed lot 27.14. In addition, lot 27.14 is proposed to be developed with a future driveway which will be constructed through steep-slope areas contrary to the Provisions of the Ordinance, Section 9-5.2 and Section 11-24.3a which do not permit disturbance of slopes 15% or greater and require such slops to be placed within a conservation easement.
At the public hearings, plaintiffs presented expert testimony from engineers Lorali Totten and Peter W. Strong, and professional planner Michael Jovishoff. Totten testified that the proposal had been designed to minimize the impact it would have on the environment, saving as many trees on the property as possible. The proposed driveway was to run through a steep slope on the property. Totten testified that she had worked with the Board's staff to minimize the impact the driveway would have on the slope so "that the driveway would [not] have any greater impact than if the slopes were less than the 15 percent slopes."
Totten also testified that although the wetland boundary crosses the rear portion of the property, the required fifty-foot buffer had been met. The soil had been tested and found suitable for a septic system, and satisfied Township requirements for storm water management. Finally, Totten testified that all surrounding lots were similarly, if not more severely, developed.
Strong testified that none of the trees to be removed were "within the wetlands buffer and the Township's 100 ...