February 6, 2008
HARRY R. HOFF, PLAINTIFF-RESPONDENT,
UNION BEACH PLANNING BOARD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2673-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2008
Before Judges Wefing and Lyons.
Defendant Union Beach Planning Board (Planning Board) appeals a trial court order which reversed defendant's denial of a variance application, finding that the Planning Board acted arbitrarily, capriciously, and unreasonably. We reverse and remand.
The following factual and procedural history is relevant to our analysis. Plaintiff Harry R. Hoff purchased two properties, Lot 4 and Lot 6, Block 81, in the Borough of Union Beach, on September 7, 2005. On the same day, plaintiff sold Lot 4 to his mother for $120,000. Plaintiff had already received variances from the Planning Board to erect a single family dwelling on Lot 4. Lot 6 (the Property) is an irregular, triangular lot measuring 90 feet by 90 feet by 80 feet, which is 3507 square feet.
Plaintiff attempted to donate the Property to the fire department, whose station house is located across the street from the Property. Due to conflicting opinions on the valuation of the Property, this donation was never consummated. Plaintiff submitted documents to donate the Property to the borough and asked for a letter of donation in the amount of $250,000. Victor Tuberion (Tuberion), President of Union Hose Fire Company, stated that "I don't know if Mr. Hoff feels that we're a bunch of idiots, but there's no way we're giving anybody a letter, a donation letter of $250,000.00 for a piece of property that you can't build on." Plaintiff, on the other hand, stated that because the Property is surrounded by a B-1 business zone, it was not "farfetched that if the property was to develop as a B-1 property . . . that the property would come back at an appraised value of about 250."
Tuberion sought advice from the borough attorney. Before advice was rendered, plaintiff verbally stated that he was requesting a letter for $180,000. During the course of an appraisal, the appraiser chosen by plaintiff suggested that the Property would be valued at $160,000 to $180,000. A week later, plaintiff requested a letter for $160,000. Plaintiff had received two appraisals, one for $140,000, if the Property were considered in an R-8 residential zone, and one for $160,000, if it were considered in a B-1 business zone. Plaintiff submitted only the $160,000 appraisal to the borough attorney. With only a few days left in the tax year, the borough attorney told plaintiff to pick up the donation papers because "he was not going to jail for tax fraud." The borough attorney emphasized that the purchase cost of the Property was $40,000.
The Property is a corner lot, separated from Lot 4 by Lot 5, which is owned by another individual. Plaintiff asserts that he made an effort to either purchase enough property from the owner of Lot 5 to bring the Property into zoning compliance, or, alternatively, to sell the Property to the owner of Lot 5. Plaintiff claims that he approached the owner of Lot 5 on several occasions, giving him contracts with a blank price. "If the adjacent owner was interested in either purchasing or selling, all he had to do is insert the price." Plaintiff states that the owner of Lot 5 was not interested in either offer because his mortgage forbid the sale of a portion of the mortgaged property, and he was concerned with the additional property taxes that would result from having additional property.
On March 29, 2006, plaintiff's application for bulk variances was heard by the Planning Board. Plaintiff sought bulk variances required to build a 1064-square-feet, two-story house on the property. He required the following variances: 1) the Property is 3507 square feet, where 10,000 is required; 2) the plans plaintiff had for building on the Property had 18 feet and 17.55 feet setbacks, where 20 feet is required; 3) the Property has an 80 foot width, where 100 feet is required; 4) the Property has 88.5 feet frontage, where 100 feet is required; and 5) the Property has 96 feet depth, where 100 feet is required.
Plaintiff, as well as a professional planner, Steven Owens (Owens), testified. Owens testified that granting these variances posed no threat to light, open spaces, or air to the adjacent land. He also testified that the Property, which is bounded on two sides by public streets, has a 22.5 foot drainage lot on the south side, which creates a buffer between the proposed house and the existing house on the adjacent property. In addition, the record indicates that the Planning Board was provided copies of plaintiff's letters to his neighbor in which he attempted to buy additional land to bring the Property into zoning compliance or to sell it to the owner of the adjacent land.
Tuberion also testified concerning the attempted donation. In addition, Tuberion stated that the fire company objected to the construction because it would restrict their view and obstruct their travel on Poole Avenue. Plaintiff countered that he would restrict access to the Property from Poole Avenue, and that all access would be from the Edmunds Avenue side. In addition, he proposed a fifty-five-foot triangle site easement on the corner, which is more than double the standard triangle easement requirement.
The Planning Board voted unanimously to reject plaintiff's application for the variances. No findings of fact were made that night. However, on April 26, 2005, the Planning Board memorialized its decision by approving a resolution. The Planning Board stated that, "[b]ased on the testimony provided, it was apparent that the Applicant inflated the value of the property and had not made a good faith attempt to offer the property to the adjoining landowners at a reasonable price." The resolution stated that the requested "donation letter" was for $250,000, while the assessed value of the Property was $3900. The Planning Board stated throughout the record that plaintiff had "deceived them in the course of two applications for variances and that he had attempted to deceive the fire company as to the value of the property."
On May 31, 2006, the Planning Board adopted a supplemental resolution, which memorialized additional findings of fact. The resolution stated that "the Board did not find the Applicant's appraisal to be credible and therefore also did not find the Applicant's testimony concerning his efforts to sell to an adjacent owner or to donate the property to be credible." The Planning Board also found that the appraised value of the Property was inflated because the Property and the area surrounding it was re-zoned from B-1 Neighborhood Commercial Zone to R-8 Residential Zone. This re-zoning occurred "concurrently with the processing of the Applicant's application."
On June 8, 2006, plaintiff filed a complaint in lieu of prerogative writs in the Law Division. On February 9, 2007, after hearing arguments from counsel, the trial court concluded that the Planning Board "acted arbitrarily, unreasonably and capriciously and as a result the application should be granted . . . ."
The Planning Board now appeals the trial court's decision and raises the following points for our consideration:
THE COURT BELOW ERRED WHEN IT SUBSTUTUTED [SIC] ITS ASSESSMENT OF THE CREDIBILITY OF THE PLAINTIFF'S TESTIMONY AND OTHER EVIDENCE FOR THAT OF THE BOARD MEMBERS.
THE COURT BELOW ERRED IN GRANTING THE PLAINTIFF'S VARIANCES DIRECTLY AND FAILING TO REMAND THE APPLICATION FOR FURTHER CONSIDERATION OF THE DESIGN AND PLACEMENT OF THE HOUSE ON THE UNDERSIZED LOT CONSISTENT WITH THE MANDATE OF THE COURT THAT THE REQUIRED BULK VARIANCES BE GRANTED.
THE DECISION OF THE LAW DIVISION IS CONTRARY TO THE POLICY OF THE COURTS OF NEW JERSEY IN THAT IT CONDONES AND REWARDS AN ATTEMPT TO CLAIM A TAX DEDUCTION BASED ON INFLATED APPRAISALS OF FAIR MARKET VALUE.
THE DECISION OF THE LAW DIVISION IS CONTRARY TO THE POLICY OF THE COURTS OF NEW JERSEY IN THAT IT CONDONES AND REWARDS PLAINTIFF'S STRATEGEMS [SIC] OF DECEIT UPON THE PLANNING BOARD.
The Planning Board argues that plaintiff misrepresented to it the value of the Property and, therefore, it disregarded the balance of plaintiff's evidence, finding it not credible. The Planning Board argues that the trial court substituted its own credibility assessment for that of the Planning Board's and that the trial court's determination should be reversed. Plaintiff, however, argues that the trial court correctly found that the Planning Board was arbitrary, capricious, and unreasonable and that the trial court's reversal of the Planning Board's determination was not in error.
The Supreme Court has held that a trial court is to use an abuse of discretion standard in reviewing a planning board's decision:
"Judicial review of the decision of a Planning Board or Board of Adjustment ordinarily is limited. A board's decision 'is presumptively valid, and is reversible only if arbitrary, capricious, and unreasonable.'" Smart v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998) (quoting Sica v. Board of Adjustment, 127 N.J. 152, 166-67 (1992)). The issue for a reviewing court is whether the board decision "is supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion." Ibid. [New Brunswick Cellular Tel. Co. v. S. Plainfield Bd. of Adj., 160 N.J. 1, 14 (1999).]
The same standard is to be applied by an appellate court. Bressman v. Gash, 131 N.J. 517, 528 (1993).
Plaintiff made his application for a variance under N.J.S.A. 40:55D-70(c), which authorizes a board to:
(1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to article 8 [C.40:55D-62 et seq.] of this act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship; (2) where in an application or appeal relating to a specific piece of property the purposes of this act . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to article 8 of this act . . . . [N.J.S.A. 40:55D-70(c).]
Our courts have interpreted this as requiring two criteria to be met in order to receive a variance pursuant to this statutory provision. Nash v. Bd. of Adjustment, 96 N.J. 97, 102 (1984). The first criterion is "that [an applicant] will suffer exceptional or undue hardship if the variance is not granted --the so-called positive criteria; and [the second criterion is] that the variance will not result in a substantial detriment to the public good or the zoning plan -- the so-called negative criteria." Ibid. "An applicant can satisfy the negative criteria if the proposed structure would not be significantly out of character in style or size." Simeone v. Zoning Bd. of Adj. of Twp. of E. Hanover, 377 N.J. Super. 417, 427 (App. Div. 2005) (citing Somol v. Bd. of Adj. of Morris Plains, 277 N.J. Super. 220, 233-34 (Law Div. 1994)). A plaintiff is entitled to a variance if that plaintiff satisfies both the negative and positive criteria of the statute. Nash, supra, 96 N.J. at 102.
Whether an attempt has been made by the party seeking the variance to bring the property into zoning compliance is a factor to be considered by the courts in determining if the positive criterion has been met. Jock v. Zoning Bd. of Adj., 184 N.J. 562, 594 (2005). This can be demonstrated with evidence of trying to purchase land from an adjacent landowner or selling the property. Ibid. Plaintiff submitted to the Planning Board a letter sent to the adjacent landowner confirming that he offered to sell the Property to his neighbor or to buy land from his neighbor to bring the Property into compliance. Because the Planning Board did not believe plaintiff's valuation of the Property when he sought to donate the Property to the fire department, however, it rejected all of plaintiff's testimony, including plaintiff's testimony concerning his efforts to either sell the Property or bring it into compliance by purchasing property from the adjacent landowner.
The trial court concluded that the value of the Property for purposes of making a tax-deductible donation had "absolutely nothing to do with this case other than the fact that [the plaintiff] tried in good faith to donate it and nobody would even take it." See N.J.S.A. 40:55D-70(c). Based on the record before us, it seems that the Planning Board focused on defendant's failed attempts to donate the Property and completely rejected the fact that defendant testified he was willing to either sell the Property or purchase land from his neighbor who merely needed to "fill in the price" and sign the contract.
According to its brief, the Planning Board applied the "false in one, false in all" maxim, and rejected plaintiff's uncontroverted evidence demonstrating that he attempted to "offer the property to the adjoining landowners at a reasonable price." We do not find it necessary to determine whether the trial court improperly rejected the Planning Board's assessment of plaintiff's credibility. Kramer v. Bd. of Adjust. of Sea Girt, 45 N.J. 268, 288 (1965) (noting that "it is well settled that the Board has the choice of accepting or rejecting the testimony of witnesses"); Capell v. Capell, 358 N.J. Super. 107, 111 (App. Div), certif. denied, 177 N.J. 2 (2003) (stating that the maxim false in one, false in all should be used only when the trier of fact finds that the witness intentionally testifies falsely about a material fact); Hawrylo v. Bd. of Adjustment, 249 N.J. Super. 568 (App. Div. 1991) (board could reject unrebutted testimony of expert). We are satisfied that in any event the record was insufficiently developed, particularly with regard to the negative criterion of N.J.S.A. 40:55D-70(c) to permit the trial court to summarily grant the bulk variances.
Therefore, we remand plaintiff's application to the Planning Board to reconsider the application at a new hearing. In doing so, the Planning Board is to make appropriate findings of fact as to both the negative and positive criteria required by N.J.S.A. 40:55D-70(c), giving due regard to the relevant and material evidence to be produced in the record. We do not retain jurisdiction.
Reversed and remanded.
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