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Estate of Giordano v. Planning Board of the Town of Kearny


July 11, 2008


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3667-06.

Per curiam.


Submitted May 12, 2008

Before Judges Graves and Alvarez.

Plaintiff, the estate of Fred Giordano, applied to defendant Planning Board of the town of Kearny (the Board) for approval of a bulk variance pursuant to N.J.S.A. 40:55D-70c(2).

Plaintiff sought to subdivide an 80-foot by 190-foot lot,*fn1 on which stands a two-family structure, into a conforming single-family lot and a two-family nonconforming lot. After a hearing conducted on May 3, 2006, the Board denied the application. Plaintiff appealed the Board's determination to the Law Division by an action in lieu of prerogative writs and the Law Division affirmed. For the following reasons, we affirm as well.

The zoning ordinance for the town of Kearny requires lots for single-family homes to have a width of thirty-five feet, and lots for two-family dwellings to have a width of fifty feet. Plaintiff proposed to carve out a conforming single-family lot, thereby leaving the current structure on a two-family lot having a width of only forty-five feet. The Board denied the application because it did not agree that approval would advance Kearny's master plan. In addition, the Board concluded that the variance could not be granted without substantial detriment to the public good.

Plaintiff contends that the Board was arbitrary, capricious and unreasonable in its denial, because it "[n]eeded" to grant approval, had "[l]imited [r]review [p]owers for [a] [c]onforming [s]ubdivision," and because the trial court improperly deferred to the Board "[w]ithout [d]ue [c]onsideration of the [r]ecord." We disagree. Plaintiff's arguments completely ignore the fact that the proposed subdivision creates not only a conforming, but a nonconforming lot as well, and increases density of use without benefit to the community or advancement of the master plan.

Subdivision approval "must actually benefit the community in that it represents a better zoning alternative for the property." Kaufmann v. Planning Bd. for Twp. of Warren, 110 N.J. 551, 563 (1988). During the hearing, the Board expressed concerns about the increased density in use, i.e., three families on the same square footage where only two families currently reside, at the cost of the creation of a non-conforming lot, where a conforming lot currently exists. "[N]o c(2) variance should be granted when merely the purposes of the owner will be advanced." Ibid.

The Law Division judge concluded that no one but the owner of the lands would benefit from subdivision approval. As he said, it was "incumbent" on the applicant to establish that the positive criteria outweigh the negative. As he further noted, plaintiff did not do so: "the applicant's proofs consisted mainly of vague, general references to conforming the subject lot to the other lots in the area, and that the proposal meets the purposes of good planning." He also noted that plaintiff presented no actual evidence in support of the proposition that "approval of the proposed subdivision and the necessary C2 width variance would be a more desirable alternative than tearing down the existing two-family structure, and building new structures on two conforming lots."

In other words, plaintiff simply failed to establish that the benefit of the deviation would substantially outweigh any detriment, and that the variance would not substantially impair the intent and purpose of the zone plan and the Municipal Land Use Law. See Green Meadows at Montville, L.L.C. v. Planning Bd. of the Twp. of Montville, 329 N.J. Super. 12, 22 (App. Div. 2000); N.J.S.A. 40:55D-70(d) ("No 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.").

Decisions of municipal bodies, including planning boards and boards of adjustment, are presumed valid. Cell S. of N.J., Inc. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81 (2002); Spruce Manor Enters. v. Borough of Bellmawr, 315 N.J. Super. 286, 293 (Law Div. 1998). We recognize that such municipal decisions are not to be disturbed on appeal as long as they are "supported by the record and [are] not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion." Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998).

In summarizing the Board's findings, the Law Division judge said:

[N]umber one, the granting of the application for a major subdivision in this case would not advance the objectives of the town subdivision ordinance. Number two, the granting of the variance in this case would not advance the objectives of the town zoning ordinance. And number three, the variance sought is not pre-existing nonconforming. And number four, the applicant has not proven the necessary criteria for the granting of a C2 variance. And number five, the variance requested in this application cannot be granted without substantial detriment to the public good. And number six, the granting of [the] major subdivision and variance requested in the subject application would substantially impair the intent and purpose of the master plan of the Town of Kearny.

Additionally, the judge took into account the Board's stated concern as to density and downsizing, "which the town faces as a rapidly growing municipality." For all these reasons, the court determined that denial of the application was reasonable.

We find the Law Division judge's conclusion to be supported by substantial credible evidence in the record. The Board's decision to deny the application was not arbitrary, capricious, or unreasonable. Judicial review in this context is narrow in scope. Neither the Law Division judge nor this court may substitute its judgment for that of the Board. Cicchino v. Twp. of Berkeley Heights Plan. Bd., 237 N.J. Super. 175, 183 (App. Div. 1989). Accordingly, we affirm.


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