December 5, 2007
CRAIG TAYLOR CONSTRUCTION CO., LLC, PLAINTIFF-RESPONDENT,
THE TOWNSHIP OF PITTSGROVE, DEFENDANT, AND
PITTSGROVE TOWNSHIP PLANNING BOARD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, L-168-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically November 16, 2007
Before Judges Lintner and Alvarez.
Plaintiff, Craig Taylor Construction Company, the contract purchaser of Lot 7, Block 2101, an undersized residential lot in Pittsgrove Township, submitted an application before the Pittsgrove Township Planning Board (Board) on November 22, 2005, seeking to build a 2400 square foot single-family, two-story house. The property, located in an R-1 zone permitting single-family homes, required a minimum lot area of 2 acres and minimum width of 200 feet. Plaintiff's lot was 110.19 feet wide with a total area of 1.69 acres.
A hearing was held before the Board on March 22, 2006. The Board denied plaintiff's application by resolution of May 2, 2006. It found that, although plaintiff satisfied the statutory "positive criteria" of undue hardship, it failed to meet the "negative criteria," N.J.S.A. 40:55D-70. Specifically, the Board found that there was a "somewhat larger relative number of lots in Blocks 2101" and Blocks 2001, 2002, 2003, 2004, 2005, 2102, 2103, 2104, 2201, 2202, and 2203 having acreage of 1.69, only "a very few" lots have a width of 110 feet or less. It also determined that the "applicant's lot was the narrowest lot, having frontage on the south side of Shiff Avenue within Block 2101" with only Lot 2 having less area, and all the lots having frontage across the street on the north side of Shiff Avenue conform with all the zoning bulk requirements. It found that given the relatively larger sizes, greater widths, and the overall general zoning conformity of the other lots in the neighborhood of the applicant's property; the manner in which those lots have been developed and are being used; and the rural character of uses and development along the portion of Shiff Avenue that extends from Crow Pond Road to Gershal Avenue, the applicants property should remain undeveloped. For these reasons and all of the other reasons set forth herein, and because the [zoning ordinance] . . . preclude[s] development of lots having less than 2 acres and frontage of less than 200 feet . . . granting the requested variance . . . would be substantially detrimental to the public good, and would substantially impair the intent and the purpose of the zone plan and the zoning ordinance.
Plaintiff filed its Complaint in Lieu of Prerogative Writs on May 30, 2006, challenging the Board's May 2 denial. Following oral argument on cross-motions for summary judgment, Judge Curio found that, although the Board acted in good faith, its conclusion that plaintiff failed to satisfy the negative criteria was unreasonable because it was based upon comparable lots in too narrow an area. The Board appeals and we affirm.
On appeal, the Board contends that it properly denied plaintiff's application for failure to meet the negative criteria and the judge erred in substituting her judgment for that of the Board. Generally, a zoning "board's decision is presumptively valid, and is reversible only if arbitrary, capricious, and unreasonable." Sica v. Bd. of Adj. of Wall, 127 N.J. 152, 166-67 (1992). "Underlying [this] presumption is the recognition that such boards possess special knowledge of local conditions and must be accorded wide latitude in the exercise of their discretion." Id. at 167 (citing Kramer v. Bd. of Adj. of Sea Girt, 45 N.J. 268, 296-97 (1965)). Thus, a court cannot substitute its own judgment for that of the Board unless it is shown that the Board's actions are arbitrary, capricious, or unreasonable in light of the deferential standard of review. Kramer, supra, 45 N.J. at 296-97.
However, this deference "is not intended to be applied rigidly or categorically, and is predicated on the existence of adequate evidence in the record supporting the board's determination." Lang v. Zoning Bd. of Adj. of N. Caldwell, 160 N.J. 41, 58 (1999). If the decision is "supported by substantial evidence in the record and reflect[s] a correct application of the relevant principles of land use law," it should not be disturbed by the court. Id. at 59.
"On the other hand . . . a board's decision regarding a question of law . . . is subject to a de novo review by the courts," TWC Realty Partnership v. Zoning Bd. of Adj. of Edison, 315 N.J. Super. 205, 211 (Law Div. 1998), aff'd o.b., 321 N.J. Super. 216 (App. Div. 1999), and is not entitled to deference because a zoning board has "no peculiar skill superior to the courts" regarding purely legal matters. Jantausch v. Borough of Verona, 41 N.J. Super. 89, 96 (Law Div. 1956), aff'd, 24 N.J. 326 (1957).
Because the Board concedes that plaintiff established undue hardship, we confine our remarks to the negative criteria. Under the negative criteria, [n]o variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance. [N.J.S.A. 40:55D-70(d).]
It is a firmly established principle 'that the negative criteria constitute an essential 'safeguard' to prevent the improper exercise of the variance power." Medici v. BPR Co. 107 N.J. 1, 22 (1987). Proof of the negative criteria requires a showing that the variance will not substantially impair the intent and purpose of the master plan and zoning ordinance from which the applicant seeks relief. Id. at 22-23. Application of the negative criteria should not "substantially limit the vitality and flexibility of use variances to afford appropriate relief from the general provisions of a zoning ordinance." Id. at 23. The quality of proof necessary to satisfy the negative criteria is less stringent than the enhanced proof mandated for a use variance. N. Bergen Action Group v. N. Bergen Twp. Planning Bd., 122 N.J. 567, 578 (1991). "[T]he statutory mandate that the grant of the variance [will be] 'without substantial detriment to the public good' focuses on the impact the variance will have on the specific adjacent properties." Lang, supra, 160 N.J. at 57. "The requirement that the grant of the variance 'not substantially impair the intent and the purpose of the zone plan and zoning ordinance' focuses on whether the grant of the variance can be reconciled with the zoning restriction from which the applicant intends to deviate." Ibid.
Attention should be given to "that part of the residential area which may reasonably bear on or be affected by the variance" when considering the negative criteria. Chirichello v. Zoning Bd. of Adj. of Monmouth Beach, 78 N.J. 544, 558 (1979); see also Gougeon v. Bd. of Adj. of Stone Harbor, 54 N.J. 138, 141 (1969) ("the Board should give 'consideration . . . to conditions existing over the widest possible residential area which may reasonably bear upon the plaintiff's right to a variance or exception'") (quoting Gougeon v. Bd. of Adj. of Stone Harbor, 52 N.J. 212, 222 (1968)).
The undisputed facts indicate that the very few lots designated by the Board having less than 110 feet of width equal 39 of the 358 lots located in Blocks 2001, 2002, 2003, 2004, 2005, 2101, 2102, 2103, 2104, 2201, 2202, and 2203. All of those 39 lots have less than 2 acres. Although the record does not provide the exact numbers of lots with 1.69 acres or less, the Board's resolution confirms that the number is a "somewhat larger relative number."
Judge Curio found that the Board's reliance on the lots having frontage on Shiff Avenue was too narrow an area. In reaching her decision, she noted that there was no bright line test to determine that portion of the residential area that reasonably bears on or affects the granting of a variance. She concluded, however, that the Board's concentration on both sides of Shiff Avenue as its primary focus was too narrow an area and thus unreasonable. Reviewing the tax maps depicting the twelve neighboring blocks, an area with an approximate radius of three-quarters of a mile, the judge correctly pointed out that there were a significant number of non-conforming undersize lots. Noting that the only evidence before the Board was the tax map and the .31 acreage differential from the minimal required, which she characterized as a "a small variation," Judge Curio concluded that the evidence before the Board satisfied the negative criteria because it established that a granting of the variance would not be a substantial detriment to the area.
Our independent review of the tax maps of the twelve blocks comprising the general surrounding residential area satisfies us that there is a multitude of substandard lots deviating from the ordinance by having either less than 200 feet in width or less than 2 acres in coverage or both. We note that many of the neighboring lots along Shiff Avenue, although not below 110 feet in width, are, nevertheless, less than the required 200 feet required by the ordinance.*fn1 We agree that the Board unreasonably relied on too narrow an area in finding that plaintiff failed to satisfy the negative criteria.
There was no testimony in the record that the granting of the variance would have a direct impact on the neighboring properties, only that the lot was smaller than the variance required. Indeed, many of the undersized lots depicted on the tax map are next to much larger lots, including those on Shiff Avenue. The applicant testified that he has built over 500 houses and that the two-story, 2400 square foot home he proposed would fit "nicely" on the lot with all the essential amenities. There was no testimony to the contrary. In our view, the evidence amply demonstrated that the proposed residential use of the property, subject, of course, to the required sideyard and setback requirements, would not substantially impair the intent and the purpose of the zoning plan and ordinance as it relates to the general character of the residential neighborhood. Simply stated, the evidence in the record did not support the Board's determination.