July 10, 2008
NASSAU HOLDINGS, INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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).
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. On December 6, 2006, an order was entered memorializing the decision.
On December 11, 2006, the Board conducted a special meeting and adopted a revised resolution. The resolution contains the following findings of the Board.
1. If the subdivision was granted it would create two (2) nonconforming lots from one (1) fully conforming lot which would be a substantial detriment to the zoning in the R-4A District. This is compounded by the fact that the lots are located in an area where the zoning criteria only requires 10,000 square feet in area for a conforming lot. Creation of two [nonconforming] lots does not meet negative criteria in that the subdivision would impair the intent of the Master Plan and Zoning Ordinance of the Borough.
2. This property was previously utilized for one (1) single family dwelling and this Applicant could develop this lot without any variances. Denying this variance does not deprive the Applicant of the utility of the property as was advanced by the Applicant's attorney.
3. Topography or shape of the property is only pertinent and relative if the lot is subdivided. There is nothing concerning the topography shape or dimensions of the existing property that would cause the Board to consider a hardship variance pursuant to 40:55D-70c(1). The Applicant advances that the lack of depth is based upon the squeezing of the lots between Ocean avenue and Barnegat Lane, but that lack is only created if the lot is subdivided. The lot in its present configuration would meet the depth requirement of the R-4A Zone and there would be nothing peculiar to the existing lot which could be considered a hardship.
4. The record indicates without any rebuttal by Applicant that subdivision of the property immediately to the north and immediately to the south of the subject Property were done fifteen (15) to twenty (20) years ago and those were in conformance with the Zoning Ordinance that then existed.
5. There is dispute in the expert testimony as to the definition of neighborhood. Mr. Lindstrom, the Engineer for the applicant defines neighborhood as a Property which is subject of this Application and to the immediate adjacent property to the north and immediately adjacent property to the south, five (5) lots. The objectors advance that the neighborhood is the property from Herbert Street north to Lyman Street which consists of forty four (44) homes, only six (6) of which have driveway access to Ocean Avenue. Of those properties, only the property on the corner of Herbert Street and the property immediately north and south of the Applicant's property have been subdivided.
6. Lots 51 and 51.01, the lots immediately south and adjacent to this Property consist of 12,230 square feet and 13,224 square feet, respectively, both of which greatly exceed the area square footage proposed by the Applicant and both are fully conforming area to the present Zoning Ordinance of the Borough. The Property if subdivided would be very much smaller than Lots 51 and 51.0. Other than the properties directly to the north the vast majority of properties in this area are considerably larger than the proposed lots.
7. Mr. Lindstrom testif[ied] that his analysis of the R-4A Zone throughout the Borough of Mantoloking indicates that there are 116 lots, nineteen (19) of which would be smaller than the smallest lot the Applicant would create, and therefore, 97 lots would be larger than the lot smallest to be created by the Applicant's proposed subdivision. This supports the relevance and application of the R-4A bulk requirements concerning the area.
8. The Board finds that the description of the neighborhood as proposed by Mr. Lindstrom is too restricted and believes it is appropriate to consider the neighborhood as the property from Herbert Street to Lyman Street. The Board further finds that the testimony relating to neighborhoods does not support Applicant's proposal for subdivision and does not benefit the community by representing a better zoning alternative, and therefore, does not warrant a relaxation of standards of the R-4A zoning requirements. The benefit to the community would be to maintain and impose the R-4A criteria.
9. The Board also takes into consideration that the owner of the property was the owner prior to the adoption of the existing Zoning ordinance on October 3, 2003, and instructed Mr. Lindstrom to prepare and Application for subdivision for presentation to the Board, which application would have conformed to the ordinance prior to the adoption of the existing ordinance. Mr. Lindstrom testified that he was instructed not to proceed with the application which would have produced two (2) fully conforming lots. This subdivision prior to October 3, 2003 would have created two lots in conformity with the ordinance requirements then in existence. After adoption of the Zoning Ordinance on October 3,2003 the existing lot is a fully conforming single family residential dwelling lot. By delaying the Board finds that the Applicant created its hardship.
10. The testimony of Objectors was compelling as it related to the opposition to the subdivision. The Board further finds that the testimony of the Objectors, even though it is lay testimony, is more relevant as it relates to the impact on the neighborhood than the testimony of either the Engineer for the Applicant or the Engineer for the Objectors. The proposal of the Applicant is, by its very nature, completely contrary to controlling, density, air and open space and appropriate population density and it rejects the testimony of the Engineer for the Applicant that the proposed subdivision meets the purposes of zoning required by N.J.S.A. 40:55D-2 et. seq. It is clear to the Board that the insertion of two (2) dwelling units as opposed to one fully conforming unit on this property would have a negative impact in the area and finds that the testimony of the Objectors was persuasive as it relates to this.
On May 8, 2007, the trial continued before Judge Foster.
On June 25, 2007, Judge Foster issued a written opinion affirming the Board's decision, denying plaintiff's application for a minor subdivision with bulk variances. The judge noted that the Board had again failed to make specific findings with regards to the hardship criteria as required under N.J.S.A. 40:55D-70c(1), and did not engage in the balancing of the benefits and detriments if the variances were granted as required under c(2). Nevertheless, he determined that as long as there was an adequate basis in the record to support the Board's decision, deference was appropriate. The judge stated in pertinent part:
Neither of the two resolutions adopted by the Board denying plaintiff's application made any specific finding with respect to the hardship criteria established at N.J.S.A. 40:55D-70(c)(1) or made any explicit attempt to weigh those considerations established under 40:55D-70(c)(2).
The only specific finding was set forth in paragraph 10(1) at [page] 19 of the second resolution which states:
"[I]f the subdivision was granted it would create two (2) nonconforming lots from one (1) fully conforming lot which would be substantial detriment to the zoning in the R-4A district. This is compounded by the fact that the lots are located in an area where the zoning criteria only requires 10,000 square feet in area for a conforming lot. Creation of two nonconforming lots does not meet negative criteria in that the subdivision would impair the intent of the Master Plan and Zoning Ordinance of the Borough."
Thus, the resolution makes findings only with respect to negative criteria of N.J.S.A. 40:55D-70 which states as follows:
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and the zoning ordinance.
Plaintiff, at oral argument on May 8, 2007, for the first time asserted that the resolution fails to contain a specific statement that creation of the two lots would "substantially" impair the intent of the master plan and zoning ordinance of the Borough as set forth in the language of N.J.S.A. 40:55D-70 as cited above.
The court rejects that contention. A full reading of paragraph 10(1) of the resolution indicates that the Board did in fact make a finding that the detriment to the zoning ordinance would be "substantial." The first sentence of the paragraph states that the creation of the two lots would be ". . . a substantial detriment to the zoning in the R-4A district[.]" (emphasis added)[.] The resolution then continues to make a specific finding that the creation of the two lots does not meet the "negative criteria."
The Board expressly made a finding that the detriment to the zoning in the district would be "substantial[.]"
Plaintiff's interpretation of the resolution is inconsistent with the princip[le] that ". . . an overriding princip[le] governing judicial review of variance decisions by Boards of Adjustment is that, assuming an adequate basis in the record for a Board's decision conclusions, deference to the judgment of local zoning boards ordinarily is appropriate." Lang v. Zoning [Bd.] of [Adj.] of [N.] Caldwell, 160 N.J. 41, 58 (1999).
This court is satisfied that the plaintiff's reading of the resolution is out of keeping with the deference that courts must afford to local Boards.
Furthermore, this court is satisfied that the record more than adequately supports the Board's findings as to the negative criteria; and the basis of those factual findings are set forth at paragraph 10, pages 19-22 of the resolution adopted by the Board on December 11, 2006.
The testimony of Mr. Baer supports the Board's factual finding in paragraph 10(5) of page 20 of the resolution with respect to the definition of neighborhood and the impact that the proposed development would have on entire neighborhood beyond the four lots adjacent to the property.
The finding in paragraph 10(6) as to the relative size of two proposed lots and the existing contiguous lots 51 and 51.01 is plainly supported by the record.
Also, the Board's analysis of Mr. Lindstrom's testimony, and in particular the Board's rejection of his definition of the affected neighborhood, is reasonable and based on evidence in the record.
On the basis of those factual findings and the remainder of those set forth in paragraph 10, there is a sufficient factual basis in the competent evidence taken before the Board that the proposed variances ". . . would be substantial detriment to the zoning in the R-4A district . . . and that the creation of the two nonconforming lots proposed by Plaintiff . . . does not meet negative criteria . . ." as recited in the Board's most recent resolution.
On that basis, in view of the standard of review to be applied in these matters, the court rejects plaintiff's contention that the Board has acted arbitrarily and capriciously [on] the basis of the record taken before the Board.
The court further rejects plaintiff's suggestion that Mr. Baer's testimony constitutes a "net opinion." Mr. Baer testified that he based his opinion on a review of the plan and a minimum of two site inspections of the property and a tour of the neighborhood along Barnegat Lane and Ocean Avenue.
In addition, the court is satisfied that Mr. Baer's delineation of the affected neighborhood is based on a sufficient factual analysis of lot characteristics in the zone district.
This court has determined that, when stripped to its essentials, the application here at hand represents nothing more than an attempt to maximize the use of plaintiff's property. As the Board found, in its present configuration, the property meets all of the Borough's zoning requirements. This court is, therefore, satisfied that plaintiff has failed to meet its burden of proof establishing "hardship" within the meaning of N.J.S.A. 40:55-70(c)(1).
For all the reasons stated herein the court is satisfied that plaintiff has failed in its burden to overcome the presumption in favor of the Board's action in denying the relief sought in this matter. The court will accordingly dismiss the complaint.
Counsel for the Board shall submit an appropriate order.
On appeal, plaintiff argues:
THE PLANNING BOARD'S DENIAL OF NASSAU HOLDINGS' APPLICATION WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE, BECAUSE IT WAS NOT SUPPORTED BY EITHER THE RECORD BELOW OR THE RESOLUTION MEMORAILAIZED ON DECEMBER 11, 2006.
A. NASSAU HOLDINGS IS ENTITLED TO RELIEF UNDER N.J.S.[A.] 40:55[D]-70C(2), BECAUSE THE BENEFITS OF A MINOR SUBDIVISION WOULD OUTWEIGH ANY DETRIMENT.*fn3
B. THE RECORD BELOW REVEALS NO FACTUAL FINDINGS FROM WHICH THE PLANNING BOARD COULD HAVE CONCLUDED THAT NASSAU HOLDINGS FAILED TO SATISFY ITS STATUTORY OBLIGATIONS.
BOTH THE JUNE 2, 2005, RESOLUTION AND THE DECEMBER 11, 2006, RESOLUTION ARE FATALLY FLAWED, BECAUSE, IN BOTH INSTANCES, THE PLANNING BOARD FAILED TO FULFILL ITS RESPONSIBILITY OF PREPARING A RESOLUTION THAT CONTAINED DETAILED FINDINGS OF FACT AND CONCLUSIONS BASED UPON SUCH FINDINGS.
A. THE REVISED RESOLUTION OF DECEMBER 11, 2006, FAILS TO CURE THE DEFECTS FOUND BY THE COURT TO BE PRESENT IN THE ORIGINAL RESOLUTION OF JUNE 2, 2005.
On appeal from a decision of a municipal board on zoning and planning matters, the trial court is limited to determining whether the Board's decision was arbitrary, capricious or unreasonable. Cell S. of N.J., Inc. v Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002); Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965). A local board's decision is presumed valid, and the party challenging the decision has the burden proving otherwise. Cell S., supra, 172 N.J. at 81.
In reviewing a local decision, the court must determine whether the board followed the statutory guidelines and properly exercised its discretion. Burbridge v. Governing Body of Mine Hill, 117 N.J. 376, 385 (1990). Because variances tend to impair sound zoning, a court should "give greater deference to variance denials than to grants of variances." Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001). The standard of review is the same for both the Law Division and the appellate tribunal. Bressman v. Gash, 131 N.J. 517, 528-29 (1993).
Contrary to a c(1) variance, an applicant does not have to establish hardship. Green Meadows at Montville, L.L.C. v. Planning Bd. of Montville, 329 N.J. Super. 12, 22 (App. Div. 2000). A c(2) variance may be granted even though hardship may have been self-created because of the proposed subdivision application. Ibid. However, "no c(2) variance should be granted when merely the purposes of the owner will be advanced."
Kaufmann v. Planning Bd. for Twp. of Warren, 110 N.J. 551, 563 (1988). Accordingly, "[t]he focus of a c(2) case, . . . will not be on the characteristics of the land that, in light of current zoning requirements, create a 'hardship' on the owner warranting a relaxation of standards." Ibid. Rather, "[t]he grant of approval must actually benefit the community in that it represents a better zoning alternative for the property. The focus of a c(2) case, then, will be . . . on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community." Ibid.
To obtain a c(2) variance, an applicant must prove both the positive and negative criteria under the statute, N.J.S.A. 40:55D-70. Concerning the positive criteria, the applicant must establish that "[t]he purposes of [MLUL] . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment." N.J.S.A. 40:55D-70c(2). To establish the negative criteria, the applicant must prove that "[n]o variance . . . may be granted under the terms of this section . . . without a showing that such variance . . . 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-70d.
We have carefully considered plaintiff's arguments in light of the record and applicable law. We are satisfied that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Foster in his thoughtful and comprehensive written opinion of June 25, 2007. R. 2:11-3(e)(1)(A).