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Nassau Holdings, Inc. v. Planning Board of Borough of Mantoloking

July 10, 2008

NASSAU HOLDINGS, INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,
v.
PLANNING BOARD OF BOROUGH OF MANTOLOKING, DEFENDANT-RESPONDENT, AND STEPHEN J. BERNARD, CATHY BERNARD, ARTHUR BYLIN, ZOE BYLIN, IRA FRIEDMAN, VERA FRIEDMAN, NANCY FETTE, LAWRENCE FETTE, NANCY PARKER, LETA GANDOLFINI, MR. AND MRS. G. RUSSELL HENSHAW, MR. AND MRS. JOHN KEMP, III, JOAN KOVACS, BETTY LANDGRABER, DONALD LASHER, NADIA LASHER, VALERIE MCDOWELL, ANTHONY NAZARRO, SALLY NAZARRO, MR. AND MRS. WM. GREGORY PARMELE, WILLIAM H. PURCELL, MARGARET REDLINGER, DONALD REDLINGER, RICHARD SAMETH, PAULINE SAMETH, GEORGE RING, DEE RING, ELAINE SCHAEFFLER, BEVERLY A. VOSS, DEFENDANTS/INTERVENORS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2193-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 12, 2008

Before Judges Parrillo, S. L. Reisner and Gilroy.

Plaintiff Nassau Holdings, Inc., appeals from the August 7, 2007 order of the Law Division, which dismissed its complaint in lieu of prerogative writs, challenging the defendant Planning Board of the Borough of Mantoloking's (Board) denial of an application for a minor subdivision for property located at 1116 Ocean Avenue, or Block 24, Lot 49, in the Borough of Mantoloking (the Property).

We affirm.

The Property is a vacant lot and is embedded between Ocean Avenue on the east and Barnegat Lane on the west. Because the two streets do not run perfectly parallel to each other, the Property is slightly irregularly shaped and has two street frontages. The Property contains 18,262 square feet and has a frontage on Ocean Avenue of 105.00 feet; frontage on Barnegat Lane of 105.25 feet; a northerly property line of 107.27 feet; and a southerly property line of 177.58 feet. The Property is abutted by two lots on the north and two lots on the south, all four of which have single street frontages with their respective common rear yard lines running approximately parallel to the street on which they front.

Lot 48 and 48.01 abut the northerly property line and front Ocean Avenue and Barnegat Lane, respectively. Lot 48 contains 9,751 square feet and has a depth of 92.86 feet; Lot 48.01 contains 7,743 square feet and has a depth of 73.74 feet. Lot 51 and 51.01 abut the southerly property line and front Ocean Avenue and Barnegat Lane, respectively. Lot 51 contains 12,320 square feet and has a depth of 88 feet; Lot 51.01 contains 13,224 square feet and has a depth of 94.46 feet.

The Property is located in the R-4A residential zone, which requires a minimum lot area of 10,000 square feet and a minimum depth of 100 feet. Presently, the Property conforms to all zoning requirements and can be developed with a single-family dwelling without any variances.

On August 10, 2004, plaintiff filed an application with the Board, seeking to subdivide the Property into two building lots.

Proposed easterly lot No. 49 would front Ocean Avenue, contain 9,240 square feet, and possess a depth of 88 feet. Proposed westerly lot No. 49.01 would front Barnegat Lane, contain 9,022 square feet, and possess a depth of 82.27 feet. Because the proposed subdivision did not conform with the zoning requirements, plaintiff sought two bulk variances for each of the proposed new lots, pursuant to N.J.S.A. 40:55D-7c(1) and c(2). Each proposed lot required a variance from the minimum lot area and from the minimum depth zoning requirements.

On April 7, 2005, the Board conducted a public hearing on the application. In support of its application, plaintiff presented testimony from Charles Lindstrom, a licensed professional engineer and planner. Lindstrom opined that plaintiff's application met the criteria for the grant of the variances under N.J.S.A. 40:55D-70c(1) and c(2). As to c(1), Lindstrom stated that plaintiff would suffer hardship if the variance was denied because the Property is an exceptionally large lot in a unique location, "in that it has double frontage adjoining lots that have more conventional development patterns of frontage on each street with backyards touching each other. The lots adjoining do not have the double frontage situation that this lot has. So, I think it has hardship characteristics in that respect."

As to the request for a variance under the c(2) section of the statute, Lindstrom testified that the purposes of the Municipal Land Use Law (MLUL)*fn1 would be advanced by the grant of the variance because it would: "promote the public health, safety, morals, and general welfare"; "provide adequate light, air and open space"; "promote the establishment of appropriate population densities and concentrations that will contribute to the well-being that persons, neighborhoods, communities and regions"; and "promote a desirable visual environment through creative development techniques and good civic design and arrangement." N.J.S.A. 40:55D-2a, c, e, and i, respectively. Lastly, Lindstrom testified that the relief requested would meet the intent of the master plan and zoning ordinances because they would ensure that the development of the lot was consistent with the existing character of homes in the neighborhood by providing a smooth transition between similar sized lots located immediately to the north and south of the Property.

The Board also heard testimony from Frank Baer, a licensed engineer and planner, who was retained by the objectors to the application. Baer opined that the subdivision would create two non-conforming lots, a detriment unto itself. "It's not normal from a planning standpoint to create nonconforming lots."

More importantly, Baer disagreed with Lindstrom's characterization of the neighborhood. Lindstrom defined the neighborhood as limited to the four adjoining properties, the two on the north and the two on the south. Baer stated that the Board should consider the entire neighborhood, not just the four adjoining lots. "I think you'll want to take into consideration the entire neighborhood that goes beyond just the adjacent four lots. Basically, just looking at the adjacent four lots and the impact [on just those lots,] that's kind of a microplanning, per se." It was Baer's opinion that the Board should consider the affect which the subdivision would have on the other lots in the general neighborhood, particularly along Barnegat Lane.

At the conclusion of the experts' testimonies, the Board opened the hearing to members of the public. Six objectors generally portrayed their concern about changes in the neighborhood over the recent years, with an increase of population density and taller houses. According to the objectors, the October 2003 land use ordinance was adopted to curb this trend of overgrowth and overpopulation, and plaintiff's application would circumvent these purposes. At the conclusion of the hearing, the Board voted unanimously to deny the application. On June 2, 2005, the Board adopted a resolution memorializing its decision.

On July 13, 2005, plaintiff filed its complaint*fn2 in lieu of prerogative writs, seeking to reverse the Board's decision. Plaintiff alleged that the Board's decision was arbitrary, capricious, and unreasonable because: (1) "[t]he reasons and justifications given by the Board for its denial are contrary to controlling standards and violates [plaintiff's] entitlement to the requested bulk variances"; (2) the record demonstrates that the Board "conducted no analysis whatsoever as to the balancing of benefits and detriments or acknowledged the hardship of an extremely oversized and underutilized lot, which was completely out of character with adjacent and neighboring lots;" and (3) the Board "made conclusory determinations which were completely unsupported by law and contradicted the standards applicable to review of bulk variances and minor subdivisions." Plaintiff further contended that it was deprived of its right to procedural and substantive due process, because the Board had determined to deny the application before the hearing.

On November 18, 2005, the defendant-objectors were granted leave to intervene. On April 21, 2006, the trial court bifurcated the issues of procedural and substantive due process, deciding to try them only if necessary, after resolving whether the Board acted in an arbitrary, capricious, and unreasonable manner.

On September 29, 2006, the matter was tried before Judge Joseph Foster. On November 16, 2006, Judge Foster rendered an oral opinion, determining that the Board's determinations were "conclusory in nature" and did not explain "on the basis of the factual record made before the Board," why the Board took the position it did with respect to the "Flexible C[(2)] application."

Accordingly, Judge Foster remanded the matter for the Board members to make more detailed findings "and explain more specifically why they came to the conclusions" they did. The remand, however, was not to encompass additional testimony or to amplify the record. ...


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