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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...