April 25, 2008
WHITETAIL FARMS, LLC, PLAINTIFF-RESPONDENT,
MULLICA TOWNSHIP PLANNING BOARD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-2482-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 15, 2008
Before Judges Winkelstein, Yannotti and LeWinn.
Following a remand from the Law Division for findings of fact and conclusions of law, defendant Mullica Township Planning Board, for the second time, denied plaintiff's request for a front yard setback variance. It memorialized its decision in a June 7, 2006 resolution. On May 8, 2007, Judge Valerie Armstrong entered an order and issued a written opinion reversing the Board's decision, and granting plaintiff variance relief subject to certain conditions. Because we affirm the variance under N.J.S.A. 40:55D-70c(1), we do not address either defendant's arguments or the Board's findings regarding plaintiff's N.J.S.A. 40:55D-70c(2) application.
Plaintiff is the owner of a vacant lot in the Township, located at 2321 Seventh Avenue. The lot, located in the Forest Area Residential Receiving (FARR) zone, contains wetlands and endangered species. The lot's depth is approximately 800 feet.
Mullica Township is a Pinelands community subject to the provisions of the New Jersey Pinelands Protection Act, N.J.S.A. 13:18A-1 to -29 (the Act). The Act requires that the Township's zoning ordinance and master plan be approved by the New Jersey Pinelands Commission. N.J.S.A. 13:18A-12. In compliance with the Pinelands Comprehensive Management Plan (CMP), N.J.A.C. 7:50-6.14, Section VII-16-2-A of the Township's zoning ordinance provides: "No development, except for those uses which are specifically authorized . . . shall be carried out within 300 feet of any wetland unless the applicant has demonstrated that the proposed development will not result in a significant adverse impact on the wetland."
The Township's zoning ordinance also contains a land transfer program, which was established in accordance with the CMP. N.J.A.C. 7:50-5.30. The program is "designed to permit an equitable distribution of the allowable development units while insuring flexibility for property owners to sell and/or purchase parcels which contain less than the minimum required lot area or which may be otherwise unsuitable for development." The land transfer program is a conditional use in the FARR zone and it authorizes the development of residential dwelling units on lots of four acres or more in the zone, provided that the owner: "shall acquire and provide proof of ownership or sufficient non-contiguous acres located in the FAR [Forest Area Residential] district outside the FARR areas of Mullica Township to meet the twenty (20) acre*fn1 minimum bulk requirement."
The zoning ordinance provides protection to the scenic corridors in the FAR and FARR zones. The ordinance states: "[e]xcept as otherwise provided in this subsection, no permit shall be issued for development on a scenic corridor other than for agricultural product sales establishments unless the applicant demonstrates that all buildings are set back at least 200 feet from the center line of the corridor." Nevertheless,
[i]f compliance with the 200 feet setback is constrained by environmental or other physical considerations, such as wetlands, . . . the building shall be set back as close to 200 feet as practical and the site shall be landscaped . . . so as to provide screening from the corridor.
If an applicant demonstrates that existing development patterns of the scenic corridor are such that buildings within 1000 feet of the proposed development site are set back less than 200 feet, the ordinance allows that "a setback shall be set for the proposed development which is consistent with the established development pattern, provided that the site is landscaped . . . as so to provide screening between the building and the corridor."
Here, plaintiff applied under the land transfer program to permit construction of a single family dwelling on the lot. The application sought a setback variance, seeking to reduce the 200-foot front yard setback requirement to 100 feet, which was necessary to maintain the required 300-foot wetlands buffer. No other variances were needed, as the proposed development satisfied the eleven other criteria established by the Pinelands Commission and the Township. Although not required, in order to protect the integrity of the wetlands, plaintiff also offered to: (1) monument the wetlands buffer lines with permanent markers; (2) describe in all future deeds precise metes and bounds for the building envelope that would be permitted for development; (3) describe in all future deeds the precise landscape buffer required by the ordinance; and (4) provide for marking of clearing limits at the time of the issuance of the building permit.
In support of its application, plaintiff presented the testimony of Barbara Allen Woolley-Dillon, a professional planner. She testified that in her opinion plaintiff complied with the statutory criteria necessary for granting variance relief.
With regard to the positive criteria for the requested c(1) "hardship" variance, Woolley-Dillon asserted that the existence of wetlands and endangered species created a unique physical condition on the property. Those environmental constraints created a particular hardship on plaintiff, as plaintiff could not comply with both the 300-foot wetlands buffer and the 200-foot front yard setback requirement. Supporting WoolleyDillon's testimony on this point was correspondence from the Pinelands Commission, dated April 21, 2005, indicating that the property may contain as many as four endangered species, and "the development of one single family dwelling and all associated development, including clearing and land disturbance, on [the property] must maintain a minimum buffer of 300 feet to all wetlands in order to meet the wetlands and threatened and endangered species protection standards of the CMP and [the ordinance]."
Woolley-Dillon opined that plaintiff's proposed development would be consistent with the Township's ordinance because several houses in the immediate area had less than the 200-foot front yard setback required by the ordinance. Two houses located within 1000 feet of plaintiff's property had 100-foot front yard setbacks, the same setback requested by plaintiff.
With regard to the negative criteria, Woolley-Dillon explained that although there would be some detriment from the proposed development of the property, that detriment would not be substantial. She explained that the application would not substantially impair the intent and the purposes of the zone plan and zoning ordinance for essentially the same reasons that the application advanced the overall purposes of the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -129. That is, that plaintiff's application: (1) promoted the public health and general welfare by preserving the wetlands and the wetland buffer zone; (2) provided adequate light, air, and open space by preserving over twenty acres on five non-contiguous parcels throughout the Township; (3) promoted the establishment of appropriate populations that would contribute to the well being of the neighboring communities and the preservation of the environment because the development met the overall density requirements of the FARR Zone; (4) provided sufficient space and locations for a variety of uses, specifically, the proposed residential development on the property, and the preservation of open space on the non-contiguous parcels under the land transfer program; and (5) promoted a desirable visual environment through creative development techniques, which promoted the conservation of open space and natural resources by preserving a fifty-foot wide vegetative buffer along the scenic corridor.
In its June 7, 2006, resolution denying plaintiff's variance application, the Board found that plaintiff would suffer no undue hardship if the variance were denied because the property could still be utilized for farming and hunting, which were other permitted uses in the FARR zone. Although the Board acknowledged that "th[e] property, as it exists, is not a buildable lot," it explained that "[plaintiff] w[as] aware of the limitations of the property before [plaintiff] purchased it," and therefore plaintiff had no "reasonable expectation that a non-buildable lot must become a buildable lot by reason of the granting of a variance." The Board further found that plaintiff "failed to show that the benefits of granting the variance would outweigh any of the detriments to the public good." The resolution did not, however, specifically address plaintiff's arguments concerning the unique condition of the property, such as the existence of wetlands and endangered species.
The Board further found that "[plaintiff] failed to prove that the development which would result from the granting of the proposed variance would not result in a significant impact on the wetlands." According to the Board, "[p]lacing a house within eleven (11') feet of the wetlands buffer zone would inevitably result in the violation of the buffer zone as a result of the normal living and recreational activities which are associated with a residence."
The trial court reversed the Board, determining that a c(1) variance was warranted because "the facts in the instant case present[ed] a classic, textbook example of a hardship created by zoning requirements, when considering the unique conditions [of the property]." The court found that the Board's contrary conclusion ignored the fact that residential development was specifically permitted in the FARR zone by the CMP and the ordinance, notwithstanding the presence of environmentally sensitive conditions such as wetlands and endangered species.
Moreover, contrary to what the Board concluded, the trial court found that plaintiff satisfied the positive and negative criteria for variance relief under N.J.S.A. 40:55D-70c(1) through the presentation of unrebutted and credible expert testimony, and that there was "literally no evidence of detriment to the public good resulting from plaintiff's proposal." The court found that the property "suffers from exceptional conditions and physical features resulting in an extraordinary and exceptional situation, due to the requirement pursuant to the CMP and the Ordinance for a 300' wetlands buffer." The court concluded that this unique situation justified the grant of plaintiff's hardship variance application. The court granted variance relief conditioned on plaintiff performing the additional tasks it volunteered to perform to ensure that the wetlands and the landscaped areas would be protected.
On appeal to this court, defendant argues that the trial court erred in reversing its decision. We disagree.
The standard of review of a municipal board's decision is deferential, and is the same for both trial and appellate courts. Bressman v. Gash, 131 N.J. 517, 529 (1993). An applicant for a variance "bears the burden of producing a preponderance of competent and credible evidence to show that he or she meets the statutory prerequisites for a variance, a burden which applies to both the positive and negative criteria." Menlo Park Plaza Assocs. v. Planning Bd. of Woodbridge, 316 N.J. Super. 451, 461 (App. Div. 1998), certif. denied, 160 N.J. 88 (1999). The decision of a planning board to grant or deny a variance is "'presumptively valid, and is reversible only if arbitrary, capricious, and unreasonable.'" Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998) (quoting Sica v. Bd. of Adj. of Wall, 127 N.J. 152, 166-67 (1992)). A reviewing court will defer to the board's decision "if it is supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion." Ibid. "[C]courts ordinarily should not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. Zoning Bd. of Adj. of N. Caldwell, 160 N.J. 41, 58-59 (1999). "'Because variances should be granted sparingly and with great caution, courts must give greater deference to a variance denial than to a grant.'" Cohen v. Bd. of Adj. of Rumson, 396 N.J. Super. 608, 615 (App. Div. 2007) (quoting N.Y. SMSA v. Bd. of Adj. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004)).
Here, under the Township's land transfer program, in addition to demonstrating that the proposed development was on a lot of at least four acres and providing proof of ownership of twenty non-contiguous acres located in the FAR zone to meet the minimum bulk requirement, plaintiff was required to demonstrate that the property "otherwise [met] the minimum standards of Article VII of [the ordinance]." Under that provision, plaintiff needed to demonstrate "that the proposed development [would] not result in a significant adverse impact on the wetland." The court found that plaintiff has met this burden. Implicit in the court's holding on the variance application is that the proposed development would not adversely impact the wetlands because the wetland buffer zone would be adequately respected. Supporting that conclusion is the correspondence from the Pinelands Commission that did not prohibit development of the property as long the minimum 300-foot buffer was maintained. The letter said that the property "must maintain a minimum buffer of 300 feet to all wetlands in order to meet the wetlands and threatened and endangered species protection standards of the CMP and [the ordinance]." Thus, so long as the 300 foot buffer is established, plaintiff has met its burden on proof as to this issue.
We next address the statutory requirements for an N.J.S.A. 55D-70c(1) hardship variance. To obtain a "hardship" variance, an applicant must establish the following positive criteria:
c. (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 of this act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property . . . . [N.J.S.A. 55D-70c(1).]
"[T]he focus in a c(1) case must be on whether the strict enforcement of the ordinance would cause undue hardship because of the unique or exceptional conditions of the specific property." Lang, supra, 160 N.J. at 53. "Under [N.J.S.A. 40:55D-70c(1)], what is essential is proof that the need for the variance is occasioned by the unique condition of the property that constitutes the basis of the claim of hardship." Id. at 56 (citation omitted). The undue hardship relating to the property must have one of three causes: (1) exceptional narrowness, shallowness, or shape of a specific piece of property; (2) exceptional topographic conditions uniquely affecting the property; or (3) any other extraordinary or exceptional situation uniquely affecting a specific piece of property. Id. at 55.
In addition to demonstrating the above "positive" criteria, an applicant for a variance must demonstrate the following "negative" criteria:
No variance or other relief may be granted under the terms of this section unless  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.]
The first prong of the negative criteria "focuses on the impact the variance will have on the specific adjacent properties affected by the permitted deviations from the ordinance." Lang, supra, 160 N.J. at 57. The second prong "focuses on whether the grant of the variance can be reconciled with the zoning restriction from which the applicant intends to deviate." Ibid.
Here, as to the positive criteria, the trial court found that a c(1) variance should have been granted because the property suffered from exceptional conditions and physical features that created an extraordinary and exceptional situation, in which plaintiff could not satisfy both the 300-foot wetland buffer and the 200-foot front yard setback requirement. The court found that the negative criteria were met because plaintiff produced credible and unrebutted expert testimony that any detriment as a result of the proposed development would not be substantial.
The record supports the trial court's findings and does not support the Board's position that plaintiff failed to satisfy the positive and negative criteria for hardship variance relief. As to the positive criteria, plaintiff provided unrebutted expert testimony that the presence of wetlands and endangered species on the property produced an exceptional topographic condition that created an extraordinary and exceptional situation uniquely affecting the property. Those environmental constraints on development, combined with the required 300-foot wetland buffer and 200-foot front yard setback requirement, resulted in an exceptionally shallow lot that rendered the property undevelopable without a waiver of the wetlands buffer or a setback variance. Indeed, those setbacks substantially eliminated the lot's buildable area. Although some other lots in the area have wetlands restrictions, not all have similar constraints, nor are they burdened with endangered species as is the subject lot. Because the Pinelands Commission required strict observance of the 300-foot wetlands buffer, the lot could not be built upon without a setback variance. This satisfies the positive criteria for a c(1) variance.
In reaching a contrary conclusion, the Board found that Woolley-Dillon's credibility was adversely affected by her own personal viewpoint. While a zoning board is not bound to accept the testimony of an expert, see El Shaer v. Planning Bd. of Lawrence, 249 N.J. Super. 323, 329 (App. Div.), certif. denied, 127 N.J. 546 (1991), it may not unreasonably reject expert testimony. See N.Y. SMSA, supra, 370 N.J. Super. at 338. Here, a portion of Woolley-Dillon's testimony, regarding her personal opinion and experiences as to the size of decks that many homeowners prefer, was properly rejected by the Board as personal opinion. Nevertheless, there is no suggestion in the record that the balance of her testimony, and most significantly, her testimony regarding the necessary criteria for variance relief, was tainted by personal opinion or was otherwise not credible. We find no error in the court's relying upon her testimony in support of its conclusion that plaintiff satisfied both the positive and negative criteria for c(1) variance relief.
In rejecting the c(1) variance application, the Board also found that there would be no undue hardship on plaintiff because, even if the variance were denied, the property could be utilized for farming and hunting, both permitted uses in the FARR zone. An applicant seeking a variance under subsection c(1) need not, however, prove that without the variance the property would be zoned into inutility before demonstrating a hardship. Lang, supra, 160 N.J. at 55. Rather, an applicant for a c(1) variance only needs to demonstrate that the property's unique conditions "inhibit the extent to which the property can be used." Ibid. (citation omitted).
Turning to the negative criteria, the Board found that a variance would have a negative impact on the wetlands because "[p]lacing a house within eleven (11') feet of the wetlands buffer zone would inevitably result in the violation of the buffer zone as a result of the normal living and recreational activities which are associated with a residence." The Board also found that plaintiff failed to demonstrate that the grant of the variance would not substantially impair the intent and purpose of the zoning plan and the ordinance because, among other things, the grant of the variance would not promote the use of open space and would detract from the desirable visual environment of the community. The trial court, on the other hand, found that plaintiff provided unrebutted expert testimony that any detriment as a result of the proposed development would not be substantial, and "nothing in plaintiff's proposal [would] substantially impair the intent and purpose of the Zone Plan and Zoning Ordinance."
The record supports the trial court's conclusion. The ordinance, consistent with the CMP, permits residential development in environmentally sensitive areas, such as the property here, so long as the required buffer zones are satisfied. The ordinance contemplates that relief by way of a setback variance may be needed to satisfy the wetland buffer, which is the very situation that confronted plaintiff.
Plaintiff's application satisfied the wetlands buffer requirements and plaintiff voluntarily proposed additional conditions to ensure that the wetlands would not be detrimentally impacted by the proposed development. Furthermore, the property would have the same 100-foot setback as two other residences within 1000 feet; consequently, the setback would not be inconsistent with established development patterns as anticipated by the Township's zoning ordinance.
The Board's concern that a residence located only eleven feet from the wetland buffer zone "would inevitably result in the violation of the buffer zone as a result of the normal living and recreational activities which are associated with the residents" was purely speculative. Nothing in the record suggests such a violation of the buffer zone, and, indeed, such a potential violation always exists, even if the property is utilized for other permitted uses such as farming or hunting.
Significantly, neither the CMP nor the ordinance imposes a "buffer" between a proposed structure and the 300-foot wetland buffer zone. The Board's attempt to create an additional "buffer zone" was arbitrary, capricious, and unreasonable.
Accordingly, because we agree with the trial court's grant of variance relief under N.J.S.A. 40:55D-70c(1), we affirm the May 8, 2007 order reversing the Board and granting the variance.