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Stein v. Planning Board of the Borough of Upper Saddle River


December 10, 2007


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-677-06.

Per curiam.


Argued November 5, 2007

Before Judges Weissbard, Gilroy and Baxter.

Plaintiff Gary S. Stein appeals from a Law Division order of February 15, 2007, which affirmed a December 8, 2005 resolution of the Upper Saddle River Planning Board (Planning Board) that had denied plaintiff's application for minor subdivision approval. In order to have granted that approval, the Planning Board would have been required to rescind the no-further-subdivision condition that it had imposed on July 24, 1986 when it granted minor subdivision approval to plaintiff. We conclude that the trial court correctly determined that the Planning Board's decision of December 8, 2005 was not arbitrary, capricious or unreasonable. We affirm.


Plaintiff is the owner of property located in the Borough of Upper Saddle River known as 8 Weiss Road. Although the property has an address indicating frontage on Weiss Road, the property does not abut a public street, and gains access to Weiss Road via a long, narrow access easement. In particular, plaintiff's property is 360 feet from Weiss Road, and is connected to Weiss Road by a lane, which varies from thirteen to sixteen feet in width. The lane also provides access to Weiss Road for four other lots that do not front on a public street.

When plaintiff purchased his property in 1968, it was larger and nearly square in shape. In 1986, plaintiff filed a subdivision application, which, when granted, resulted in the creation of a new lot in the northwest quadrant of plaintiff's property. As a condition of granting subdivision approval in 1986, the Planning Board specified that no further subdivision of plaintiff's property would be permitted either by plaintiff or any successive owner of the property. That restriction was memorialized in deeds prepared and filed by plaintiff after he received the 1986 subdivision approval.

It is the 1986 prohibition on further subdivision that underlies the Planning Board's December 8, 2005 decision denying plaintiff's request for further subdivision. The Law Division reviewed the 1986 no-further-subdivision condition when it affirmed the Planning Board's 2005 decision. We discuss the 1986 proceedings in some detail in order to provide context for our decision.

In 1986, when plaintiff sought to sell a portion of his property, he first filed an application with the Upper Saddle River Board of Adjustment (Zoning Board) for a variance in order to obtain relief from the provisions of N.J.S.A. 40:55D-35. That statute specified that no building permit could be issued for the construction of a property which did not abut a public road.*fn2 At the time, only the Zoning Board could grant such relief. The minutes of the Zoning Board's February 20, 1986 meeting, although not a verbatim record, demonstrate that the Zoning Board heard considerable testimony concerning the access of fire-fighting equipment and other emergency vehicles to the houses using the lane if the new lot were to be created. Specifically, the Board heard testimony from Andrew Marshall, Jr., an engineer retained by plaintiff, who testified that the lane was sufficiently wide to provide access for fire-fighting equipment and other emergency vehicles to reach the properties on the lane. A neighbor, Patrick Jareck, expressed concern that too many houses would be forced to depend on the lane for access to the public street if the subdivision were to be approved.

During the course of the February 20, 1986 hearing before the Zoning Board, Board members discussed the width and use of the right-of-way. They inquired as to whether an attempt had been made to create a cul-de-sac. At that point, according to the minutes of the meeting, plaintiff's counsel replied "that although this had not been done, the Board could impose conditions on the approval." He proceeded to explain that "his applicant had no intention of further subdividing this property, and that too could be a condition of the resolution." The minutes also state that when plaintiff testified, he "pointed out that there was ample room for vehicle[s] turning on the lawn of his property" and that "[w]ith no intentions to further subdivide his property, he would agree to a deed restriction." The February 20, 1986 meeting concluded with the members voting in favor of a site visit, which was scheduled for March 15, 1986.

At its next meeting on March 20, 1986, the Zoning Board granted plaintiff a variance from the provisions of N.J.S.A. 40:55D-35 in order to permit the creation of a lot fronting on a right-of-way other than an improved street. The resolution provided that "the applicant shall agree that there shall be no further subdivision of the remaining lands of the applicant, which restriction shall be set forth in the deed perpetuating the subdivision and recorded in the Bergen County Clerk's Office."

The Zoning Board made five specific findings in support of its decision to grant a variance from the requirement of N.J.S.A. 40:55D-35: (1) the average improved width of the right-of-way, fifteen to seventeen feet, was "sufficiently wide enough to provide access for emergency equipment to all properties served by the lane, including the applicant's property and lot to be created"; (2) the applicant presented sufficient testimony that the lane had been maintained throughout the period of his ownership of the property; (3) there was no way to obtain public road frontage for [plaintiff's] property, nor was there a likelihood that the right-of-way would be needed for purposes of a public street; (4) "there was not testimony by anyone at the time of the hearing that there would be a significant increase in traffic along the lane by virtue of the construction of a new home on the lane. The lot in question would, except for fronting on a public street, conform in all other respects to the ordinances of the Borough of Upper Saddle River"; and (5) the proposed lot could be created "without substantial detriment to the public good and without substantially impairing the intent and purpose of the zoning plan and zoning ordinance."

Having obtained a planning variance from the Zoning Board under N.J.S.A. 40:55D-36, plaintiff filed an application on March 28, 1986, with the Planning Board for approval of a minor subdivision that would permit him to formally create the new lot without frontage on a public street. In his application to the Planning Board, plaintiff stated that the "Board of Adjustment has required a deed restriction to prohibit further subdivision of the lot."

The Planning Board considered plaintiff's application for minor subdivision approval at three meetings: May 22, June 17, and July 24, 1986. According to the minutes of the May 22, 1986 meeting, neighbors Patrick Jareck, and Sydney and Sue Helfand,*fn3 submitted letters opposing plaintiff's subdivision. The Board set the matter down for a formal hearing on June 17, 1986.

During the June 17, 1986 meeting, plaintiff, represented by counsel, and with a court reporter present, presented two expert witnesses. As he had done at the Zoning Board meeting on February 20, 1986, plaintiff again presented the testimony of his engineer, Andrew Marshall. According to the minutes of the June 17, 1986 meeting, Marshall stated that the right-of-way connecting the property in question to the improved street, Weiss Road, had an average width of fifteen feet which "was adequate for the access of emergency vehicles with the proposed turnaround for the departure of emergency and other vehicles." Marshall further testified that "[a]lthough a fire truck could not pass an ambulance in the easement, one vehicle could pull into the grass area or a driveway of one of the residences on the easement." He opined that "the addition of one more home would not have an adverse effect on the master plan."

Four adjacent property owners objected to the proposed subdivision and were represented by counsel. Their attorney questioned Marshall as to whether "cars could pass one another in the event of a snowstorm [if] the easement [was] plowed to less than its thirteen feet." The minutes do not specify Marshall's answer to that question. Board members questioned Marshall on the depth of the right-of-way, to which he replied that test borings would need to be taken in order to determine depth.

Plaintiff's second witness, Richard T. Coppola, a professional planner, testified that "the subdivision would have no impact on the master plan, but to deny the subdivision would impact [plaintiff's] condition because his is the largest lot in the area."

During the public comment portion of the meeting, Jareck observed that there had been an occasion two months earlier when his five-year old child had required an ambulance, and that it had been necessary for emergency vehicles to back into Weiss Road in order to move out of the lane because of the police cars also at the scene. The minutes also contain the comment by plaintiff's counsel that "the approval could provide the condition 'that there be no further subdivision of the property' be made a part of the deed or covenant." After some discussion pertaining to the actual width of the easement, the meeting was adjourned.

At its July 24, 1986 meeting, the Planning Board approved plaintiff's application for minor subdivision approval. The minutes of the meeting contain only a brief reference to the discussion: "reviewed the possible future of the remaining acreage, as well as restricting the use of the hammerhead for turnaround use only, no parking permitted in this area. Possible widening of the existing pavement to the full twenty feet of the easement was discussed."

The resolution that formally approved the minor subdivision on July 24, 1986, states, "[i]t was agreed that any approval of the subdivision should provide deed restrictions that would not allow for any additional houses having access from this lane."

In the resolution, the Planning Board made a finding that is central to its 2005 rejection of plaintiff's request to strike the no-further-subdivision clause. That finding was also relied upon by the Law Division in its order affirming the Planning Board's 2005 decision. Notably, the resolution states that the granting of a minor subdivision approval would cause the right-of-way "to be burdened to its limit":

WHEREAS, the Upper Saddle River Planning Board having found as a fact that the subject right-of-way will be burdened to its limit with the development of an additional lot, and

WHEREAS, the Applicant has volunteered that there will be no further subdivision on Lot 15 in Block 918, and no further grants of access to the subject right-of-way, and

WHEREAS, the Applicant having consented that there will be no further subdivisions in perpetuity . . . .

The Board then granted subdivision approval subject to four conditions: 1) the right-of-way must be paved to a consistent width of sixteen feet along its entire length; 2) no further subdivision of Lot 15, Block 918, "is to occur by [plaintiff], or his successor in interest, with said restriction to be memorialized in appropriate deeds"; 3) the turn-around must be located within the confines of [plaintiff's] lot; and 4) the hammerhead/cul-de-sac must be stabilized and paved to the satisfaction of the Borough engineer, and trees were to be planted along the entire north and east boundaries of the hammerhead. After receiving minor subdivision approval, plaintiff sold the newly-created parcel. He did not appeal the July 24, 1986 no-further-subdivision condition that the Planning Board included in its approval of his minor subdivision request.

Thereafter, as required by the Planning Board, plaintiff recorded deeds containing the prohibition against further subdivision of his property and against additional grants of access to the right-of-way. None of the objectors appealed the Planning Board's 1986 approval of the minor subdivision.

In 2004, despite the 1986 no-further-subdivision condition, plaintiff filed an application to further subdivide his property. The Planning Board held seven public hearings on that application between January 27 and October 27, 2005, during which plaintiff testified and also presented the testimony of six witnesses. Testifying on plaintiff's behalf were William Cox, Esquire, an authority on zoning and planning; Michael Kauker, a licensed Professional Planner; Matthew Fox, a licensed Professional Engineer; Joseph Basralian, Esquire, the Zoning Board attorney during the 1986 proceedings before the Zoning Board, who was also qualified as an expert in the field of real estate and land use law; Mark Kataryniak, a licensed Professional Engineer and an expert in the field of traffic engineering; and Clifford Kammerer, the owner of the lot which was created, and ultimately transferred, as a result of plaintiff's successful 1986 subdivision application.

Three owners of properties served by the access lane were represented by counsel and opposed plaintiff's application. They produced the testimony of three witnesses: Jill Hartman, a licensed Professional Planner; Jareck; and Howard Hefland, whose home also fronted on the access lane. Finally, the Board heard the testimony of the Borough engineer, David Hals, P.E.

Plaintiff's witnesses testified that adding one additional property would not compromise the safety of the residents using the right-of-way, nor would it create undesirable congestion. Plaintiff offered his own testimony that on multiple occasions, emergency vehicles had traveled the road and had not encountered any problems. Kataryniak opined that the access lane's width was suitable for police, fire and emergency vehicles. On the question of whether the addition of one more home to the access lane would adversely affect safety or create congestion, Kataryniak opined that an additional lot would have "an absolute insignificant increase in traffic and no effect on the traffic safety." The Upper Saddle River fire chief provided a letter stating that the proposed three-way driveway intersection, consisting of the Stein and Kammerer homes and the proposed new residence, would be "sufficient to serve as a turn-around for emergency vehicles," and was satisfactory to the fire department. Last, Kauker opined that the access easement was adequate to enable the safe and efficient access and turn-around by emergency vehicles even if an additional lot were added.

Hartman, testifying on behalf of the objectors, opined that an additional lot would "exacerbate an already difficult situation." She added that "the granting of this variance would have a substantial negative impact on the public good and [would] impair the intent and purpose of the zone plan and zoning ordinance."

Jareck testified that two cars could not pass each other at the same time on the access lane unless one vehicle drove onto the grassy, unpaved portion, and he presented photographs in support of his testimony. The objectors' final witness, Howard Hefland, testified that when plaintiff submitted his 1986 subdivision application, Hefland had objected, viewing it "as an erosion of the way of life we had had for so many years and the privacy that we had enjoyed, and yet here is another one when we thought that there could never be another one." Hefland commented that "[w]e finally swallowed that 1986 one, and said 'okay, at least there won't be anymore,' and here we're looking at [another one]." Hefland also testified that when plaintiff's landscaper parked his truck on the access lane, other vehicles could not pass by.

Hals, the Borough Engineer, testified that although the access road was adequate to handle emergency vehicles traversing the lane, "[t]he problem with the site becomes[,] is the driveway now at capacity or not?" Hals commented that "[t]here is no standard that you can turn to that mentions what is the capacity of a common driveway, how many lots should be serviced by a common driveway." He opined that the access road was too narrow to handle vehicles passing one another because one vehicle is required to pull off the paved area and wait for another vehicle to pass. He described how he had been required to back out onto Weiss Road during his first site visit because he had met another vehicle at the mouth of the access road. He thus framed the questions as whether, in light of those instances of inadequacy of the access road, the access road is at capacity and whether further subdivision would impact the access road beyond the circumstances that currently existed. Before answering his own questions, Hals observed that the problem with the narrowness of the access road was exacerbated whenever the lane was covered with snow.

Ultimately, Hals opined that plaintiff's property and the access lane had already "met capacity" and that "the additional lot [would] cause a problem with access." He observed that if the five existing homes and the proposed subdivision were presented to the Planning Board as a new application, the Planning Board would never approve it. He ultimately concluded that even if the Planning Board rejected the proposed subdivision application, the access road was "already at [a saturation point]" based upon his years of experience.

There was also considerable testimony concerning the circumstances surrounding the adoption of the no-further-subdivision condition in 1986. Plaintiff testified that the Zoning Board minutes, which indicated that he had volunteered the condition, were not accurate and that "it didn't happen that way. What happened was that a Board member asked [my attorney] if his client would consent if the Board imposed a condition of no further subdivisions." Plaintiff testified that he was sitting in the back room that night when his attorney, during a break, approached him stating, "something to the effect that 'Gary, I think the Board's going to impose that condition anyway. What do you want me to tell them?'" Plaintiff testified, "my first reaction, and I believe that I made a terrible mistake, but my first reaction was I did not want to get into an argument with the Board of Adjustment of Upper Saddle River." He added, "It wasn't on my radar screen that twenty years later I would want to sell the lot . . . . It wasn't something that I thought was significant, and so I said to [my attorney,] '[t]ell them we consent.'"

Plaintiff further testified, "[I] did not think the question was fair" or "the condition was valid"; however, because "[I] was a new member of the New Jersey Supreme Court," it "just seemed to me to be improper, inappropriate, for me to get into a battle with my local town about a condition, and so I said yes." He added, "in retrospect, I wish I hadn't said yes. Maybe there was a way I could have argued with them, but I made a snap decision that probably was wrong, but that's what I did." He added, "but if I made a mistake, in February 1986, respectfully, so did the Board of Adjustment. They shouldn't have asked me, and they shouldn't have imposed the condition because there was no evidence in the record suggesting there was any need for [the condition]."

Basralian, who was the solicitor for the Zoning Board at the time it considered plaintiff's variance request in 1986, also testified on the same subject. Basralian's testimony supported plaintiff's testimony that plaintiff did not volunteer the no-further-subdivision condition. Basralian observed that plaintiff only accepted the condition in response to a Board member's question to plaintiff's counsel about whether his client would accept the condition.

At the conclusion of the seven public hearings, in a nine-to-zero vote, the Planning Board denied plaintiff's application to rescind the 1986 no-further-subdivision condition, and denied plaintiff's application for a planning variance. The Planning Board's December 8, 2005 resolution discussed plaintiff's and Basralian's testimony that the no-further-subdivision condition was not volunteered by plaintiff himself, but was instead imposed by the Zoning Board. The Planning Board found that Basralian's testimony, "while credible, fails to significantly illuminate the issues surrounding the 1986 condition or provide a view dissimilar from the Board minutes." The Planning Board further found that the "testimony of Basralian, taken alone or in combination with other testimony, does little to alter the Board's clear reading of the 1986 Board of Adjustment minutes and resolution." The Board also found "that questions regarding the propriety of the condition had Stein not agreed to it are not relevant since it appears clear from the minutes that Stein either volunteered or, at the very least, specifically agreed to the condition."

As to plaintiff's testimony that the Zoning Board had, in effect, extracted his acquiescence to the condition, the Board concluded:

Whether the condition was voluntarily offered by the applicant or suggested by a Board member and agreed to by the applicant and his counsel, it was understood, discussed with counsel and agreed to by the applicant. There is no evidence that this claimed "extraction" was anymore than a simple request that was readily accepted, without coercion by the Board of Adjustment, as a condition precedent to the granting of the subdivision.

The Board ultimately found that "[t]here is no evidence, anywhere, that the condition was 'extracted' and there is some evidence that the condition itself was volunteered by the applicant." The Board also noted in the resolution "that if plaintiff disputed the condition, he should have challenged it at that time, regardless of his personal circumstances, especially if he really believed that the subdivision would [have been] granted regardless of his assent to the condition."

The Planning Board concluded that the 1986 condition was valid and was volunteered by plaintiff, or at a minimum, freely agreed to by him:

The 1986 condition had a valid zoning purpose, was volunteered or, at a minimum, suggested by the Board and freely agreed to, and that there was both a factual and legal basis for the inclusion of the condition and the condition advanced legitimate zoning and land use purposes. . . . The [Planning Board] finds that the [Board of Adjustment] approval was not "as of right" and. . . that the inclusion of the condition was reasonable in light of the need for the aforesaid variance. The [Planning Board] finds that the adoption of the condition, by either Board, was not ultra vires.

On January 23, 2006, plaintiff filed a complaint in lieu of prerogative writ challenging the Planning Board's December 8, 2005 denial of his minor subdivision application. On March 17, 2006, the Law Division granted the objectors' motion to intervene. After a review of the voluminous record and the parties' briefs, and after oral argument, the Law Division judge dismissed plaintiff's complaint with prejudice.

In a twenty-four page written opinion, the judge held: that the imposition of the 1986 no-further-subdivision condition was not an act beyond the powers of either the Zoning or Planning Board; the particular condition imposed was not illegal under the circumstances that existed; the no-further-subdivision condition was volunteered by plaintiff; the condition was reasonably calculated to achieve a legitimate objective of the Municipal Land Use Law (MLUL);*fn4 plaintiff was barred by the provisions of Rule 4:69-6 from challenging the condition because more than forty-five days had elapsed after the condition was imposed; and plaintiff was equitably estopped from challenging the 1986 conditions, especially in light of the objectors' reliance on the 1986 condition.


When a trial court is presented with a challenge to a decision of a Planning Board, the Board's decision must be affirmed unless it is arbitrary or unreasonable. Harvard Enter., Inc. v. Bd. of Adj. of Madison, 56 N.J. 362, 368 (1970). Moreover, we have recognized that Board members living in a community are well-versed in the characteristics of the sites before them, Masterson v. Christopher Diner, Inc., 85 N.J. Super. 267, 273 (App. Div. 1964), certif. denied, 44 N.J. 406 (1965), and accordingly, a reviewing court should defer to the expertise and discretion of a local land use board. Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998). A Board's decision is presumptively valid, and is reversible only if its decision is unsupported by the record or constitutes an abuse of discretion. Ibid. As the Court observed in Kramer v. Bd. of Adj. of Sea Girt, 45 N.J. 268, 296-97 (1965):

The law presumes that boards of adjustment . . . will act fairly and with proper motives and for valid reasons. . . .

Such public bodies, because of their peculiar knowledge of local conditions must be allowed wide latitude in the exercise of delegated discretion. Courts cannot substitute an independent judgment for that of the boards in areas of factual disputes; neither will they exercise anew the original jurisdiction of such boards or trespass on their administrative work. So long as the power exists to do the act complained of and there is substantial evidence to support it, the judicial branch of the government cannot interfere. A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable. Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved. [Citations omitted.]

"'Arbitrary and capricious' is typically understood to mean 'willful and unreasoning action, without consideration and in disregard of circumstances.'" Avalon Manor Imp. Ass'n, Inc. v. Twp. of Middle, 370 N.J. Super. 73, 91 (App. Div.)(quoting Beattystown v. Dept. of Envtl. Prot., 313 N.J. Super. 236, 248 (App. Div. 1998), certif. denied, 182 N.J. 143 (2004)).

The appellate court applies the same standard as the trial court. It gives deference to the Board's discretion and reverses only if the Board's action was arbitrary, capricious or unreasonable. Booth v. Bd. of Adj. of Rockaway, 50 N.J. 302, 306 (1967). Nonetheless, neither a trial court nor an appellate court is obliged to give deference to a Board's decision if the Board was deciding an issue of law. In such instances, the Board's determination is subject to a de novo review. Grancagnola v. Planning Bd. of Verona, 221 N.J. Super. 71, 75 (App. Div. 1987).

With these principles in mind, we turn to a review of the Planning Board's December 8, 2005 decision. In addition to finding that the 1986 condition was neither ultra vires nor invalid, the trial court also concluded that plaintiff's challenge to the 2005 decision of the Planning Board was barred both under the forty-five day time limit of Rule 4:69-6 and the doctrine of equitable estoppel.

We disagree with the trial court's conclusion that plaintiff's 1986 agreement to the condition bars him from challenging its validity today. Cohen v. Fair Lawn, 85 N.J. Super. 234, 237-39 (App. Div. 1964). In Cohen, the Fair Lawn Board of Adjustment had imposed a condition in 1954 to the grant of an application for a variance by a dairy to build a refrigeration plant in a residential zone. Id. at 236. In connection with its application, the dairy suggested a condition to the Board of Adjustment, namely that it would never use ammonia or sodium dioxide in its refrigeration process. Ibid. When the dairy applied eight years later to the Board of Adjustment to remove that condition based on evidence that the dairy's use of ammonia and sodium dioxide as a refrigerant was not deleterious, the Board granted the application and rescinded the condition. Id. at 236-37. The Law Division affirmed the Board's decision based on evidence in the record that the dairy company had been using ammonia as a refrigerant in an adjacent plant for many years without harmful effects. Id. at 238-39. When a number of adjacent landowners appealed, arguing that the dairy was estopped from challenging the condition because it had proposed the limitation itself some eight years earlier, we affirmed the Board's and the Law Division's decision that the condition could be stricken. Ibid. We reasoned:

[T]he rule of res judicata does not bar the making of a new application for a variance, or for modification or enlargement of one already granted, or for lifting conditions previously imposed in connection with the grant of a variance, upon a proper showing of changed circumstances or other good cause warranting a reconsideration by the local authorities. [Id. at 237.]

We also held that the doctrine of equitable estoppel should not be applied mechanically:

The equitable principles of estoppel and "clean hands" are not so inflexible as to prohibit their relaxation in the accomplishment of substantial justice, when there is no prejudice to the public weal or to some private party litigant. [Id. at 239.]

Similarly, in Allied Realty, Ltd. v. Upper Saddle River, 221 N.J. Super. 407 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988), we reviewed a Law Division decision that gave preclusive effect to the plaintiff's acceptance of a further-development condition seven years earlier. Id. at 409. When the Law Division upheld the Planning Board's decision, it reasoned that the plaintiff was barred by its prior agreement to the no-further-development condition from later seeking to eliminate it. Ibid. We reversed, and held that the Planning Board clearly had the power to rescind the prior condition:

[T]he rule of res judicata does not bar the making of a new application for a variance . . . "or for lifting conditions previously imposed," upon a showing that the continued enforcement of the restriction would frustrate an appropriate purpose. Changed circumstances or other good cause may warrant consideration by the local authorities. [Id. at 414. (citation omitted).]

We concluded in Allied Realty, as we had in Cohen, that estoppel should not be applied against an applicant who seeks relief from a condition previously imposed by a Board:

[I]t is clear that a claim of res judicata or collateral estoppel should rarely, if ever, be treated in summary fashion by a municipal board. We have previously alluded to the policy of finality and repose upon which these doctrines rest. We do not suggest that prior board action can never have a preclusive effect upon a subsequent application. Nevertheless, the rule should not be mechanistically applied in a vacuum. Such a sterile approach would defeat the liberal review powers of the board. Rather, the circumstances surrounding the use and situation of the property should be freely considered and the applicant should be accorded a proper opportunity to show reasons why the prior municipal action should not be considered preclusive. [Id. at 415.]

Accordingly, in light of our decisions in Cohen and Allied Realty, it is clear that plaintiff was entitled to seek the elimination of the 1986 condition. We therefore disagree with the Law Division's conclusion that plaintiff's assent to that condition forever bars him from seeking to eliminate it.

In keeping with our decisions in Cohen and Allied Realty, we turn to an analysis of whether plaintiff presented either "changed circumstances or other good cause," Allied Realty, supra, 221 N.J. Super. at 414, to warrant the elimination of the 1986 no-further-subdivision condition. Before analyzing that issue, we pause to observe that the Planning Board's December 8, 2005 decision rejecting plaintiff's request to eliminate the 1986 condition was certainly not a decision reached in a "summary fashion," nor did the Board "mechanistically" apply the 1986 condition "in a vacuum." Id. at 415. As we have already observed, the Board considered the testimony of eleven witnesses and analyzed the thirty-nine exhibits that were presented, all of which occurred during seven meetings spanning a nine-month period.


We turn to whether the Board correctly determined in its decision of December 8, 2005 that plaintiff had presented neither a change of circumstances nor other good cause warranting the elimination of the 1986 condition. As to a change of circumstances, plaintiff testified before the Board that his personal circumstances had changed since 1986 because his children were adults no longer living at home, he no longer wished to maintain the tennis court located on his property, and his property could be put to better use by selling a portion of it. We agree with the Board's conclusion that such personal circumstances are not cognizable by the Board, see Smith v. Fair Haven Zoning Bd. of Adj., 335 N.J. Super. 111, 122 (App. Div. 2000), and are not sufficient to constitute a change of circumstances. Additionally, municipal zoning power is not to be exercised to "increase the economic benefit to the owner[,] but rather to create a better zoning alternative for the community." Urban v. Planning Bd. of Manasquan, 124 N.J. 651, 661 (1991) (holding that a hardship justifying the grant of a variance cannot be personal to the applicant, and must consist of a characteristic of the land itself).

Plaintiff's principal claim on appeal is that he presented good cause for eliminating the 1986 condition, and that the Law Division erred when it held otherwise. Specifically, he argues that the 1986 condition was void at its inception because it served no valid land use purpose, and that the Planning Board and the Law Division therefore erred when they declined to strike it; that his consent to that condition was not volunteered before either Board in 1986 but was, in effect, "extracted" from him; and that even if volunteered by him before one of the Boards in 1986, the condition serves no legitimate land use purpose and is invalid.

Unquestionably, conditions attached to the granting of a variance "must be reasonably calculated to achieve some legitimate land use purpose." Berninger v. Bd. of Adj. of Midland Park, 254 N.J. Super. 401, 405 (App. Div. 1991), certif. denied, 127 N.J. 226 (1992). If a reviewing court concludes that the conditions are unreasonable or unlawful, it may excise them. Ibid. In Urban, supra, 124 N.J. at 661, the Court approved five factors developed by the Law Division in Orloski v. Ship Bottom, 226 N.J. Super. 666 (Law Div. 1988), and affirmed in our decision, 234 N.J. Super. 1 (App. Div. 1989). In order for a condition to be valid, the condition must satisfy those five factors. The condition must:

(1) not offend against any provision of the zoning ordinance; (2) not require illegal conduct on the part of the [grantee]; (3) be in the public interest; (4) be reasonably calculated to achieve some legitimate objective of the zoning ordinance; and (5) not be unnecessarily burdensome to the landowner. [Orloski, supra, 226 N.J. Super. at 672.]

After considering the testimony of eleven witnesses and after reviewing thirty-nine exhibits, the Board in this case concluded that the "essence of the 1986 [condition] was the safe use of the right-of-way and . . . [the] 1986 Board was correct in their [sic] belief that the condition advanced a legitimate zoning purpose." We must therefore determine whether the evidence in the record supports the Board's conclusion that the 1986 condition was imposed in order to both promote the safe use of the access road, and to prevent congestion on the access road that could threaten the safety and well-being of the residents who depended upon it. We agree with the Board that there is ample evidence to support the conclusion that the 1986 condition was indeed based on concern for the safe use of the right-ofway.

The most dramatic evidence of the connection between the no-further-subdivision condition and the safe use of the right-of-way is the Planning Board's finding in its July 24, 1986 resolution that the subject right-of-way "will be burdened to its limits with the development of an additional lot." There could be no more clear a nexus between legitimate public safety concerns and the imposition of the condition than that finding. The passage of time and the absence of a verbatim record of the 1986 proceedings make it impossible for us to determine the precise factual basis for that conclusion. We agree with the Board's comment in its 2005 resolution that if plaintiff believed in 1985 that the condition was unlawful, he could have appealed it at that time or, at a minimum, ordered the transcripts.*fn5 We, therefore, view the 1986 record with some degree of latitude.

Even without that latitude, however, we observe that the Planning Board in 1986 had before it: letters of objection from two of the five residents living on the access road; Jareck's testimony describing the incident two and one-half months earlier when emergency vehicles had to back out of the access lane because of congestion; the question of whether cars could safely pass one another on the access road in the event of a snowstorm if the easement was plowed to less than a thirteen-foot width; testimony of plaintiff's expert Coppola that the subdivision would not adversely affect the Borough Master Plan; and testimony of plaintiff's engineering expert, Marshall, who opined that the addition of one more home would not adversely affect the master plan, although, as he observed, a fire truck could not pass an ambulance in the easement. In addition to the testimony before the Planning Board, one member of the Board inquired at the February 20, 1986 Zoning Board meeting whether an attempt had been made to install a cul-de-sac.

Clearly, the discussion of whether vehicles could pass each other in the access lane, whether an ambulance and a fire truck could navigate the access road simultaneously, and whether a cul-de-sac was required, all directly related to whether the no-further-subdivision condition would advance any of the purposes of the MLUL: (1) "promot[ing] the public health . . . and general welfare," N.J.S.A. 40:55D-2(a); (2) "secur[ing] safety from fire, flood, panic and other natural and man-made disasters," N.J.S.A. 40:55D-2(b); or (3) "provid[ing] adequate light, air and open space." N.J.S.A. 40:55D-2(c).

The essential point is that the Planning Board did not arbitrarily impose the no-further-subdivision condition in 1986. On the contrary, the adoption of that condition was the culmination of a considerable amount of testimony in favor of, and against, plaintiff's subdivision request. As long as there was a basis in the record for the Planning Board to have reached that conclusion, it is not for us to second guess the Planning Board's conclusion in 1986 that the access road would be "burdened to its limits" when the subdivision was granted in 1986, and that any further subdivision should therefore be prohibited. Kramer, supra, 45 N.J. at 296-97.

Plaintiff argues that "the broad generality of those statutory purposes theoretically could support any conditions imposed by a municipal board." We disagree. The testimony we have described before the Boards and the inquiries made by their members plainly demonstrate that the 1986 condition was rationally related to, and served to promote, the goals of N.J.S.A. 40:55D-2(a), (b) and (c).

That conclusion is buttressed by comparing the Board's no-further-subdivision condition to the conditions that were imposed, and later invalidated, in Sherman v. Harvey Cedars Zoning Bd. of Adj., 242 N.J. Super. 421 (App. Div.), certif. denied, 122 N.J. 404 (1990), and Berninger, supra. In Sherman, we invalidated a condition that the renovated structure in question could not exceed twenty-eight feet in height when the municipal ordinance permitted residences in the zone to be thirty feet in height. Sherman, supra, 242 N.J. Super. at 423-24. We held that the height restriction that the Board has imposed bore no relationship to the floor area ratio variance sought by the plaintiff, and that the restriction was not a material consideration in the Board's determination of the initial application. Id. at 435. Accordingly, we reversed the Board's refusal to grant relief from the condition. Id. at 435-36.

Similarly, in Berninger, we reversed the condition that a variance would expire as soon as the owners to whom the variance had been issued no longer owned the property. Berninger, supra, 254 N.J. Super. at 407. We held that the Board's decision to grant a variance from the single-family limitation was appropriate, but restricting that variance only to the then-owners served no valid landuse purpose, and accordingly, we invalidated that condition. Ibid. Comparing Sherman and Berninger to the case before us demonstrates the close connection between the condition at issue here and a valid land use purpose.*fn6

The issue is not whether we ultimately agree or disagree with the Planning Board's adoption of the condition in 1986 and its conclusion in 2005 that permitting any further subdivision would be contrary to public health and safety. We are not the initial decision-makers. Kramer, supra, 45 N.J. at 296-97. It is immaterial whether we would have reached the same decision had we been presented with the evidence that the Planning Board was presented with in 1986 and later in 2005. Ibid. Instead, the critical question is whether the Board's conclusion was arbitrary and capricious. Ibid. In light of the extensive discussion concerning the width of the access road, the ability of vehicles to pass each other, and the numerous experts who testified on that issue, it is beyond dispute that the imposition of the 1986 condition and its affirmation by the Planning Board in 2005 were designed to serve a narrowly-defined and valid land use purpose.

As to the other four factors articulated in Orloski, supra, 226 N.J. Super. at 672, and approved by the Court in Urban, supra, 126 N.J. at 661, we need not discuss them at great length because it is clear that the 1986 condition did "not offend against any provision of the zoning ordinance;" did "not require illegal conduct on the part of the [grantee];" was "in the public interest;" and was not "unnecessarily burdensome" to plaintiff. Orloski, supra, 226 N.J. Super. at 672. As to the final factor, whether the condition is unnecessarily burdensome to the landowner, we conclude that any time an applicant is unable to secure relief from a zoning or planning board, there is some degree of disappointment and inconvenience. That, however, does not equate with a result that is "unnecessarily burdensome." We conclude that the five Orloski factors are satisfied here. Accordingly, we agree with the Planning Board's 2005 conclusion that the no-further-subdivision condition advanced a valid land use purpose.

We are mindful of the Zoning Board's conclusion in 1986, as set forth in its March 20, 1986 resolution, that approval of the subdivision would not substantially impair the intent and purpose of the zoning plan and ordinance, and that the access lane was "wide enough to provide access for emergency equipment to all properties served by the lane, including [plaintiff's] property and the lot to be created." The Planning Board concluded in 2005 that the Zoning Board's March 20, 1986 findings were not incompatible with, or antagonistic to, the Planning Board's own conclusion in 2005 that the 1986 condition should not be rescinded. We agree.

On the surface, the March 20, 1986 conclusion of the Zoning Board might appear to be in conflict with the Planning Board's July 24, 1986 conclusion that the access road was "burdened to its limit." A closer comparison, however, persuades us that the two conclusions can be readily harmonized. Specifically, while the creation of the new property in 1986 might not have jeopardized the public good as the Zoning Board found, the creation of any future property thereafter could well do so as the Planning Board found. At some point, the access lane reaches a tipping point, where it can no longer safely provide access for the abutting properties. Accordingly, the Planning Board's July 24, 1986 conclusion that the creation of the new lot would burden the access road to its limit, thereby making any future development unsafe, is not inconsistent with the Zoning Board's March 20, 1986 conclusion that the one new lot being created in 1986 would not make the access road unsafe.

Not only do we review whether the two Boards in 1986 sought to accomplish a valid land use purpose when they imposed the no-further-subdivision condition, we also review the Planning Board's 2005 decision that the condition should not be eliminated. We have already outlined the considerable testimony the Board heard and will not repeat it. We emphasize, however, that the Board heard conflicting testimony. The testimony from plaintiff's experts, Kataryniak and Kauker, and from plaintiff himself, about traffic concerns on the access lane was diametrically opposed to the testimony of the objectors' expert, Hartman, and the Board's own expert, Borough Engineer Hals.

When the testimony concerning the need for a continued condition is in conflict, as it was here, the Board is entitled to resolve the credibility in that testimony and determine which opinion it finds to be the most persuasive. Baghdikian v. Bd. of Adj. of Ramsey, 247 N.J. Super. 45, 48 (App. Div. 1991). It is not for us to sift through the record and make a de novo determination. Kramer, supra, 45 N.J. at 296-97. So long as there is sufficient evidence in the record from which the Board could make the determination that it made, we are not permitted to second guess the Board or substitute our judgment for that of its members. Ibid. Under these circumstances, we are satisfied that there was sufficient credible evidence in the record, especially in light of Hals's testimony, to support the Board's 2005 decision not to rescind the 1986 condition.

We are mindful that in addition to the testimony of Kataryniak, Kauker and plaintiff himself concerning the conditions on the access lane, plaintiff presented five other witnesses in the 2005 proceedings before the Planning Board. It was only Kataryniak, Kauker and plaintiff, however, who directly addressed traffic and safety issues related to the right-of-way; plaintiff's five other witnesses addressed the different question of whether plaintiff had volunteered the condition in 1986, and if not, the implication to be drawn from that fact. Accordingly, in light of the Planning Board's right, and indeed its duty, to resolve conflicting testimony and make findings of fact, we remain convinced that the Board's ultimate conclusion in 2005 not to rescind the 1986 condition was not arbitrary, capricious or unreasonable.

Moreover, the discussion by Board members prior to the vote that was taken on October 27, 2005 demonstrates that when the Board members cast their votes in favor of maintaining the 1986 condition, they did so because they believed the condition promoted a valid land use purpose. Indeed, their Solicitor had advised them that regardless of the passage of time, and regardless of plaintiff's acquiescence to the condition in 1986, the condition must be stricken if it was invalid. One member, Michele Phibbs, commented that the Board should avoid "narrow" lanes where a vehicle can only turn around in "somebody's yard at the end of it." Chairman James Virgona commented that the access road would have to "service more houses" and the condition was therefore valid. Barbara Adamski observed that the 1986 Board would not have included the condition had its members not believed the condition promoted the "best land use" for the community as a whole. Bud Prober, the only Board member in 2005 to have also served on the Planning Board in 1986, sought to "shine a little light" on the 1986 proceedings. He stated that the Board's intention in 1986 was to "impose[] that there be no further traffic of any kind on the easement." He also stated "the egress was difficult. It had all the difficulties that was[sic] voluminously discussed over the months here." He also mentioned, as an aside, that plaintiff did not appear unhappy about the condition at the time it was discussed and approved in 1986.


We turn now to the Board's conclusion that plaintiff either himself initiated or, at a minimum, freely assented to a no-further-subdivision condition proposed by the Zoning Board in 1986. Because we agree with the Planning Board's 2005 conclusion that the 1986 condition was valid and served a legitimate land use purpose, there is little reason to engage in extensive discussion of the Planning Board's additional conclusion that plaintiff either initiated, or freely assented to, the 1986 condition.

The Planning Board had the opportunity during its 2005 proceedings to consider the testimony of both Basralian and plaintiff himself concerning the circumstances surrounding his consent to the no-further-subdivision condition in 1986. We conclude there is ample evidence to support the Planning Board's 2005 conclusion that plaintiff either volunteered, or freely assented to, the condition in 1986. The minutes of the February 20, 1986 meeting of the Zoning Board state that it was plaintiff's counsel who volunteered the condition, as opposed to a Board member having done so. Plaintiff's 2005 testimony before the Planning Board disputed the accuracy of those minutes. Plaintiff contended that a Zoning Board member proposed the no-further-subdivision condition, and that when his attorney came into the back room and asked him if he would consent to it, he agreed to do so. Thus, even if, as plaintiff contends, the condition was proposed by a Zoning Board member, rather than by his attorney as the contemporaneous minutes suggest, there is ample support for the Planning Board's December 8, 2005 conclusion that "[w]hether the condition was voluntarily offered by the applicant or suggested by a Board member and agreed to the applicant and his counsel, it was understood, discussed with counsel and agreed to by applicant." We will not disturb that finding because it is based upon substantial and credible evidence in the record. Kramer, supra, 45 N.J. at 296-97.

Plaintiff relies on two decisions to establish that his consent to the 1986 subdivision was of no moment. We agree with the Board that these cases are inapposite. In West Park Ave., Inc. v. Twp. of Ocean, 48 N.J. 122, 132-33 (1996), the Court invalidated a $300 fee the applicant developer was required to pay the local Board of Education for each house he planned to construct. The Court did so, however, because no local ordinance authorized such fees. Id. at 127. The Court did not squarely address the duress issue upon which plaintiff relies because the Board's actions were ultra vires for the reason we have described. Id. at 130.

Similarly, in Nunziato v. Planning Bd. of Edgewater, 225 N.J. Super. 124 (App. Div. 1988), we invalidated a Planning Board resolution approving various bulk variances because the applicant had offered to pay $203,000 to help defray the municipality's cost of satisfying its unrelated low-income housing obligation. Id. at 132-34. We held that the "kind of free-wheeling bidding" under review created the "intolerable spectacle" of variances being for sale. Id. at 134. Our decision did not turn on the issue of duress. Indeed we concluded that the developer did not argue he was "victimized" by the requirement, and urged us to maintain the "gift" so that the grant of the variances would not be disturbed. Id. at 134. Unquestionably, the issue of duress, or of "extraction" of an applicant's consent to a condition, was not the basis of our decision.

Accordingly, we conclude that the no-further-subdivision condition imposed in 1986 served a valid land use purpose at the time it was adopted, the Planning Board did not act in a manner that was arbitrary or capricious when it declined to eliminate that condition in 2005, and plaintiff freely consented to the condition when it was imposed in 1986. We have been presented with no meritorious argument that would justify disturbing the Planning Board's December 8, 2005 decision or the Law Division's order of February 15, 2007 that upheld it.


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