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Schlatter v. Planning Board of the City of Englewood


August 20, 2008


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8339-06.

Per curiam.


Argued August 6, 2008

Before Judges R. B. Coleman and Sabatino.

In this action in lieu of prerogative writs, plaintiffs Konrad and Janet Schlatter, husband and wife, appeal the Law Division's order dated July 27, 2007. The order in question sustained a determination by the Englewood Planning Board ("the Board") denying plaintiffs' application for a minor subdivision and associated variances for the property where they reside. We affirm.


The pertinent facts and chronology of events are as follows. Plaintiffs own and reside at 121 East Hamilton Avenue in the City of Englewood.*fn1 The property is designated on the City's tax maps as Lots 5 and 12 in Block 1102. The combined two-lot parcel is located in what is commonly known as the "East Hill" district of the City, although it is apparently at or near the edge of that district. The property fronts both East Hamilton Avenue through Lot 12 and Booth Avenue through Lot 5. A creek runs through the northeast corner of Lot 5. That lot has a flat elevated area, which slopes sharply towards Booth Avenue to the north and towards the creek to the northeast.

At present, the subject property has a single two-and-a-half story residence on Lot 12, with a nearby two-story detached garage. The elevated flat area on Lot 5 has an in-ground swimming pool and also a shed and another small accessory building.

The property is situated in the R-AA residential zone of the City. That zone has a minimum lot area of 44,000 square feet. This requirement stems from a 1988 amendment to the City's Master Plan, which doubled the lot area minimum in the RAA zone from 22,000 square feet to 44,000 square feet. The property, inclusive of both Lots 5 and 12, currently has 66,626 square feet, which amply satisfies the minimum lot requirement.

Plaintiffs wish to subdivide their property into two substandard lots: Proposed Lot 5, with an area of 33,772 square feet, and Proposed Lot 12, with an area of 32,854 square feet.*fn2

They plan on demolishing the swimming pool and the two accessory buildings on Lot 5, and building on that parcel a new residence. Although the architectural features of the proposed residence have not been finalized, plaintiffs envision that it will have a structural footprint of 2,405 square feet, rising 32.71 feet above the existing grade on the elevated flat area of Lot 5. The roof line of the proposed new house would be about fifty feet above the pavement on Booth Avenue. Plaintiffs intend, if their application is granted, to keep intact the existing residence and detached garage on Lot 12.

It is undisputed that plaintiffs' proposed subdivision would conflict with the existing R-AA zoning in several respects. As we have already noted, the two subdivided lots would each fall substantially short of the 44,000 square-foot lot area minimum. Additionally, both proposed new lots would require variances from the zone's requirement of 200 feet of lot depth, as Proposed Lot 12 would be 175.27 feet deep and Proposed Lot 5 would be only 150.01 feet deep. The existing residence on Lot 12 encroaches on the zone's 50-foot minimum front yard setback requirement, and the existing garage encroaches on the minimum sideyard setback requirement. The garage also covers a portion of the minimum planting areas required for the side and rear yards.

Plaintiffs applied to the Board for minor subdivision approval and for associated variances, including, most significantly, relief for both new proposed lots from the 44,000 square foot minimum lot size. Their application was heard by the Board in July 2006.

As their attorney characterized it in his opening statement to the Board, plaintiffs sought, "in essence, a restoration of the original subdivision that developed in [the] neighborhood." To support their application, plaintiffs presented the expert testimony of Massimo Piazza, a licensed engineer. Plaintiffs did not testify themselves, but relied upon their expert's presentation.

Piazza acknowledged that the present minimum lot size in the R-AA zone is 44,000 square feet. However, he noted that the majority of the nearby properties across Booth Avenue from Lot 5 are in the R-A zone, which only requires minimum lots of 22,000 square feet. Piazza stated that properties further to the west on Booth Avenue are in an R-C zone, which has a 10,000 square foot minimum lot size. He also pointed out that properties to the west of Lot 12 along East Hamilton Avenue are also in the RC zone. This all signified to Piazza that "there's a mix of different zones . . . within the perimeter of our property in question."

Piazza also examined the sizes of several of the lots within the R-AA zone near plaintiffs' property, and found that, for the most part, those properties do not conform in size with the present requirements of the R-AA zone. He contended that most of those nearby lots tend to have only 22,000 to 29,000 square feet in area. All or most of these lots were created and developed before the zoning was upgraded in 1988.

For what he described as "demonstration purposes," Piazza determined that the owners of the subject property hypothetically could tear down the present dwelling and erect in its place a much larger house with a 9,939 square foot foundation, without violating the existing R-AA zoning requirements.*fn3 Piazza suggested that such a hypothetical residence, despite its compliance with the R-AA zoning requirements, would clash with the sizes of other homes presently located in the neighborhood. Based on that comparison, Piazza opined that plaintiffs' proposed subdivision, which contemplated building on Lot 5 a smaller home of only about 2,400 square feet in area, was more "consistent with what's in the neighborhood."

Piazza further represented to the Board that the proposed new residence on Lot 5 would meet all drainage and other engineering requirements, and would not intrude upon that lot's steep slopes. He acknowledged that actual development of the site would require an appropriate site plan, to be reviewed by the City's engineer.

In his summation to the Board, plaintiffs' attorney stressed that his clients' proposal was essentially reverting the property back to its status as a two-part subdivision. He pointed out that the property had complied with the existing lot requirements before 1988 when the R-AA zone was upgraded. He alluded to Piazza's comparison with a 9,000-plus square foot hypothetical home that could be lawfully built on the presently merged parcel. He maintained that, by contrast, approving plaintiffs' subdivision would result in two smaller residences that would be "in conformity in size and scale with the houses that have already been developed in the neighborhood." Counsel also reminded the Board that plaintiffs had sought their variance relief under N.J.S.A. 40:55D-70(c)(2), which does not require a demonstration of hardship by a property owner.

Two neighbors testified before the Board in opposition to plaintiffs' application. One objector, who resides at 140 Booth Avenue adjacent to plaintiffs' property, argued that the present 44,000 square foot lot minimum in R-AA had been adopted to discourage "exactly this kind of subdivision and additional development to the neighborhood." He also urged that the application should be denied because the proposed new house on Lot 5 would be about fifty feet above street level and therefore "not in character with the residential neighborhood."

The second objector was a neighbor*fn4 who lives across Booth Avenue. He echoed the sentiments of the first objector. In particular, he agreed that the new home on Lot 5 would be "vastly out of character with the [s]treetscape." This objector also expressed concerns that granting plaintiffs' request might invite other property owners likewise to pursue subdivisions, reversing what he termed the "historical" trend within the neighborhood to combine former subdivisions into single and larger lots.

Following extensive colloquy with plaintiffs' counsel, the Board members, including the City's Mayor, decided to reject plaintiffs' application, by a vote of five to four. The Mayor was among the Board majority that voted against the plaintiffs' application.

After generally describing the subject premises and the elements of plaintiffs' proposal, the Board's implementing resolution made the following pertinent findings of fact and legal conclusions:

7. The Applicant presented testimony that the current development of [the] are[a] has many propert[ies] that are also substandard in lot area and lot depth as part of the presentation. Objectors also gave comments opposing the grant of the subdivision and variance relief.

8. The Board found that the existing development of residences on Lots that do not meet the current minimum requirements of the R-AA Zone were developed prior to the 1988 recommendation of the Englewood Planning Board to increase the minimum lot area from 22,000 square feet to 44,000 square feet. The 1988 Master Plan, which the Board took judicial notice of, stated that in order to preserve the integrity and the character of residential areas and retain to the spaciousness of the "East Hill" area[,] subdivisions should be discouraged and lot size should be increased, because subdivisions could "erode this desired sense of openness" [quoting from page 10 of the 1988 Master Plan].

9. The Board also found that the Governing Body followed the recommendations of the 1988 Master Plan by increasing the minimum lot size in order to prevent subdivisions creating lots with an area less than 44,000 square feet, unless the proposal and application provides compelling proof satisfying the variance criteria of the Municipal Land Use Law.

The resolution then analyzed plaintiffs' application under subsection "c" of N.J.S.A. 40:55D-70, the relevant section of the Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-1 to -99:

10. The Board found that the variances could not be justified on the basis of the hardship criteria in N.J.S.A. 40:55D-70(c)

[(1)]. The mere fact that the existing lot exceeds the minimum requirements for lot area does not present a hardship. The property has been developed as one[]single family residence with a pool and is not under a hardship.

11. The Board also analyzed the application in accordance with flexible (c) (2) criteria in N.J.S.A. 40:55D-70(c)(2). The Board did not find that the proposal to construct an additional dwelling with frontage on Booth Avenue constitutes a better zoning alternative to applying the requirements for the Zoning ordinance. The architectural details of the new dwelling were not available to the Board, so a finding of creating a desirable visual environment was not made. The dwelling, because of the existing topography, was found to be high above the street grade on Booth Avenue and had the potential to be visually imposing.

12. The Board found that the grant of the subdivision and variances would substantially impair the intent of the Master Plan and the Zoning Ordinance. Granting the variance would impair the findings of the 1988 Master Plan and the Zoning Amendment that follows its recommendation. Subsequent Master Plans have left those decisions undisturbed and emphasize preservation [of] these standards. The Board found that the grant of the variances would only advance the financial interests of the Applicant and would not advance the purposes of the Municipal [L]and Use [L]aw or grant a benefit to the community.

13. The Board did not find that the subdivision and the variances could be granted without substantial detriment to the public good, because the application creates two undersized lots and introduces another dwelling that has the potential to be visually imposing in light of the topography.

Plaintiffs then filed the instant action in lieu of prerogative writs in the Law Division. After hearing oral argument and considering the parties' written submissions, Judge Menelaos Toskos dismissed plaintiffs' lawsuit and upheld the Board's denial of their application.

In the course of his written decision dated July 27, 2007, Judge Toskos specifically upheld, as reasonable, the Board's rejection of the views of Piazza, plaintiffs' expert:

In the present matter, the Planning Board was faced with an area whose zoning had been upgraded. It chose not to give weight to the testimony of the applicant's engineer concerning his opinion that the application presented a better zoning alternative and would promote uniformity in the zone. Based upon the Board's knowledge concerning the intent and purpose of the Master Plan and zoning ordinance, the Court determines that the choice of the Board to give little weight to the expert's conclusion was reasonable.

With respect to the substantive issues, the judge elaborated:

Our Supreme Court in Riggs v. Long Beach Tp., 109 N.J. 601, 619-622 (1988)[,] noted the Legislature's apparent objective and strong policy of encouraging municipalities to make zoning decisions by ordinance rather than by variance. The legislative scheme of the MLUL emphasizes the role of planning and land use regulation and zoning, not ad hoc decision by boards. In the present case, the zoners of Englewood, the [P]lanning [B]oard and governing body, chose to rezone the district in which the plaintiffs' property was located. The rezoning resulted in an upgrade of the lot area requirement. The character and development of that district has not changed since the rezoning. Given these facts, a determination by the Planning Board that the nature of the proofs offered by the plaintiffs failed to satisfy the negative criteria was not arbitrary, capricious or unreasonable.

The judge further wrote:

Under the totality of the circumstances, the Board's determination that granting the variances would not benefit the community by presenting a better zoning alternative for the Property was reasonable. It was further reasonable for the Board to conclude, that the granting of the application would substantially impair the intent and purpose of the Master Plan and zoning ordinance, since the subdivision with two houses would be contrary to the purpose for upgrading the lot area in the R-AA zone. Finally, it is the Board's resolution which embodies its findings and conclusions. The comments of individual members such as the Mayor in this instance are simply those and not binding on the Board as a whole. The Court finds that the record and the Board's resolution[,] which took judicial notice of the Master Plan, cited the significant deviation in the lot depth requirements[,] and found that the area's development predated the current zoning upgrade[,] sufficiently supported its decision.

For the reasons set forth above, the decision of the Planning Board is affirmed and the complaint dismissed.

On appeal, plaintiffs argue that the Board's denial of their subdivision application was arbitrary, capricious and unreasonable, because it allegedly ignored the relevant law in order to "send a message" to future applicants. They further argue that the trial judge misanalyzed the Board's resolution and also misapplied the relevant law. We now examine those contentions.


Preliminarily, we note that the judiciary's scope of review of the Board's decision is circumscribed. It is well settled that "public [land use] bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion." Jock v. Zoning Bd. of Adj. of Wall, 184 N.J. 562, 597 (2005) (citing Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965)). The ordinary review standard applied to a decision by such bodies is to determine whether the decision was "arbitrary, capricious, or in manifest abuse of its discretionary authority." Ibid. See also Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adj., 361 N.J. Super. 22, 37-38 (App. Div. 2003). The Board's decision is presumed to be valid, and, unless it is shown to conflict with applicable statutory criteria, see Medici v. BPR Co., 107 N.J. 1, 23 (1987) (requiring adherence to statutory standards), our task is simply to determine whether the decision is "reasonably supported by the record." Nextel, supra, 361 N.J. Super. at 38.

Here, we are presented with a land use board's denial of an application for a subdivision and associated variances. Plaintiffs acknowledge that, as a matter of law, a subdivision of their property into two district parcels is required in order for them to construct a residence on Lot 5. That is so because, under the doctrine of merger, Lots 5 and 12 merged into a single tract for zoning purposes when the neighborhood was rezoned in 1988 and the two lots became undersized. Even though the two lots are situated back-to-back and do not front the same street, the presence of the accessory pool structures on Lot 5 related to the single-family structure on Lot 12 eliminated the separate identities of the two lots. See Bridge v. Neptune Twp. Zoning Bd. of Adj., 233 N.J. Super. 587, 595-96 (App. Div. 1989).

In applying for relief before the Board, plaintiffs essentially sought to restore the property to its pre-merged condition, this time with two non-conforming lots. Because the two lots would not conform with the present 44,000 square foot lot minimum, the proposed subdivision necessitated a variance. Loechner v. Campoli, 49 N.J. 504, 512 (1967). Plaintiffs sought such a variance under N.J.S.A. 40:55D-70(c)(2).*fn5 That subsection provides, in pertinent part, that:

(2) where in an application or appeal relating to a specific piece of property [it is shown that] 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, [the Board may] grant a variance to allow departure from regulations pursuant to article 8 of this act provided however, that the fact that a proposed use is an inherently beneficial use shall not be dispositive of a decision on a variance under this subsection and provided that no variance from those departures enumerated in subsection d. of this section shall be granted under this subsection; and provided further that the proposed development does not require approval by the planning board of a subdivision, site plan or conditional use, in conjunction with which the planning board has power to review a request for a variance pursuant to subsection a. of section 47 [c. 40:55D-60] of this act. [N.J.S.A. 40:55D-70(c)(2).]

Although undue hardship does not have to be demonstrated to obtain a subsection (c)(2) variance, the applicant must still demonstrate that (1) the purposes of the MLUL would be advanced by deviating from the zoning ordinance; (2) the application would not cause a substantial detriment to the public good; (3) the benefits of the deviation substantially outweigh any detriment, and (4) that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance. Lang v. Zoning Bd. of Adj. of N. Caldwell, 160 N.J. 41, 57 (1999); N.J.S.A. 40:55D-70; see also Green Meadows at Montville, L.L.C. v. Planning Bd. of Montville, 329 N.J. Super. 12, 22 (App. Div. 2000).

"[N]o (c)(2) variance should be granted when merely the purposes of the owner will be advanced." Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 563 (1988). "The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property." Ibid. Hence, the focus of a subsection (c)(2) case is "on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community." Ibid. See also Cicchino v. Twp. of Berkeley Heights Planning Bd., 237 N.J. Super. 175, 181-83 (App. Div. 1989).

Measured by these standards, we are satisfied that the Board had ample grounds to reject plaintiffs' application, substantially for the reasons articulated in Judge Toskos's thoughtful and detailed opinion. Although reasonable minds might differ about the merits of plaintiffs' proposal, as reflected by the Board's non-unanimous vote, we cannot conclude from this record that its determination to disallow the proposed subdivision was arbitrary, capricious, or contrary to the precepts of N.J.S.A. 40:55D-70(c)(2).

As a key part of the rationale for rejecting plaintiffs' application, the Board's resolution and the trial court's opinion both relied upon the 1988 Master Plan amendment. Similarly, we refer to the following pertinent sections of that 1988 enactment, under the heading of "Open Space":

Open Space

The ability to add to the open space inventory in Englewood is minimal. The existing public open space - parks, green acres, Allison Park, school facilities -have to be cherished, maintained and preserved and their use for public recreation is encouraged.

Private open space in the form of lawns and landscaped areas greatly enhance the visual environment of Englewood. These too, need to be maintained and preserved.

A unique aspect of Englewood is the remaining "[E]ast [H]ill" estates with their spacious grounds. Future subdividing of these estates is to be discouraged. The creation of so called "flag lots" with a new building lot created to the rear of a property and connected to the public street by a narrow strip of land is viewed as disfavor. New building lots are to front on improved streets with a minimum right of way width of 50 feet. These lots are to have the frontage width prescribed in the zoning ordinance.

Serious consideration is to be given to increasing the minimum lot size in selected areas of the "[E]ast [H]ill" to reduce the opportunity to subdivide the larger properties. [Emphasis added.]

Given these open-space objectives detailed in the Master Plan, and the municipality's express goal of discouraging future subdivisions on East Hill, the Board was well within its statutory prerogatives in concluding that plaintiffs' application would "substantially impair the intent" of the Master Plan and local zoning ordinances enacted pursuant to that Plan. The Board's resolution in paragraph 12 specifically noted that the policies in the 1988 Master Plan that led to the rezoning of the East Hill were reaffirmed in subsequent Master Plans, as recently as the year 2003.*fn6

The record likewise suffices to support the Board's finding, in resolution paragraph 12, that a grant of the requested variances "would only advance the financial interests of the [a]pplicant and would not advance the purposes of the [MLUL] or grant a benefit to the community." Although plaintiffs claim that their home is not one of the larger estates atop East Hill, and note that it borders at least two less restrictive zones, their property is nevertheless situated in a portion of the City where the governing body has clearly proscribed subdivisions and the loss of open space, whether it be on public or private land.

Plaintiffs note that a key facet of the Board's rejection, and the objections of the two neighbors who testified at their hearing, involves the fifty foot height differential between the top of the proposed two-story house on Proposed New Lot 5 and Booth Avenue. They assert that this height differential is merely the result of natural topography. They point out that they could tear down their existing dwelling on Lot 12 and build a replacement house fifty or more feet above grade on Lot 5, without the need for a variance. That all may be so, but it begs the question of whether the Board had to ignore the practical impact of the proposed new dwelling's height in evaluating the overall merits of plaintiffs' application under subsection (c)(2).

We discern nothing in the balancing standard of subsection (c)(2) that requires the Board to blind itself to the height features of the proposed new structure, and the impact that such an elevated structure could have on the surrounding neighborhood. Even assuming, for the sake of argument, that the Board was somehow constrained from taking the height factor into account, we are satisfied that there are other adequate reasons independently cited by the Board to justify the application's rejection.

We also agree with the Board that it is not dispositive that plaintiffs theoretically could build a much larger single dwelling on the site, without the need for a variance, if they tore down their present home. Although we do not consider such a hypothetical circumstance to be completely irrelevant, we do not fault the Board in focusing more on whether the proposed subdivision would improve the status quo on the property, rather than on some conjectural alternative that might or might not be economically feasible and actually pursued by the property owners. The Board had the discretion to give little weight to such a hypothetical "worst case" in its assessment of the pros and cons of plaintiffs' application, as contrasted with a situation in which an actual detriment to the community presently exists and would be abated by the approval of the pending application. Cf. Lang, supra, 160 N.J. at 60 (sustaining grant of variance under subsection (c)(2) where replacing an existing above-ground swimming pool with an in-ground pool on an undersized lot would promote a more desirable visual environment for the neighborhood).

We need not comment at length on plaintiffs' remaining arguments, including their contentions that the Board's resolution was too conclusory and that the Board was impermissibly swayed by a desire to deter future subdivision applications on the East Hill. R. 2:11-3(e)(1)(E). Although the Board's resolution could have been more detailed at times, it did far more than parrot the statutory criteria, particularly on the key issues of open space preservation and of building height. We also find nothing wrong with the Board's sensitivity to the impact of plaintiffs' application on the community at large, a concern which is exactly what subsection (c)(2) calls for. Having carefully examined the record as a whole, we are satisfied that the Board did not treat plaintiffs unfairly; nor did it turn down a clearly meritorious application for relief just to keep other developers and property owners at bay.

For all of these reasons, we affirm the Law Division's dismissal of plaintiffs' action in lieu of prerogative writs. In doing so, we stress that our affirmance is, of course, without prejudice to plaintiffs submitting a revised application to the Board in the future that might be more in keeping with the objectives of the zoning plan and the statutory criteria of N.J.S.A. 40:55D-70(c)(2).*fn7


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