March 20, 2009
HENRY WOLLMAN, PLAINTIFF-APPELLANT,
THE PLANNING BOARD OF THE BOROUGH OF OCEANPORT AND CAROL WIDMAIER, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2087-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 24, 2009
Before Judges Skillman, Graves and Ashrafi.
Defendant Carol Widmaier is the owner of a 44,400 square foot parcel of land located in a residential zone in the Borough of Oceanport. Widmaier's property is divided into two lots: lot 10, which is located on a public street and occupied by a single-family residence, and lot 21, which is a vacant piece of property with no street frontage located in back of lot 10.
Widmaier filed an application to the defendant Oceanport Planning Board to subdivide her property into three lots, the existing lot 10 and two rear lots, lots 21.01 and 21.02, on which Widmaier proposes to build new single-family residences. All three lots would comply with the 10,000 square foot minimum area for residential development in the zoning district.
Widmaier also applied to the Board for various bulk variances required for this proposed residential development. The most significant of these variances was from a requirement of 100-foot frontage on a public street. Widmaier proposed to provide access to the two new lots by means of a private driveway that would run along the western boundary of the lots, which would not comply with the public street frontage requirement of the zoning ordinance.
The Board conducted a two-day hearing on Widmaier's application at which it heard testimony and received public comment. The primary witness in support of the application was Gordon Gemma, a professional planner retained by Widmaier. Gemma testified that Conrail owns a forty-foot wide right-of-way to the west of Widmaier's property, which she had attempted to buy. If she had been able to acquire that property, her property would have become sufficiently wide to accommodate a new public street where the Conrail right-of-way is now located, which would have obviated the need for obtaining a variance from the frontage requirement of the zoning ordinance. However, Widmaier had been unable to acquire that property.
Gemma described the landlocked character of lot 21 as a "pre-existing condition" and expressed the opinion that Widmaier's inability to develop the property without a variance constituted an "undue hardship as a result of unique topographic conditions and unique conditions as to this property" within the intent of N.J.S.A. 40:55D-70(c)(1). Gemma also expressed the opinion that the grant of the bulk variances required to construct two new residences on lot 21 would further the objective of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -99, of "appropriate population density" and thus qualify for a variance under N.J.S.A. 40:55D-70(c)(2). In addition, Gemma testified that although Widmaier's proposed development of Lot 21 "will work and function as a flag lot," it would not have a negative impact on the zone plan.
In support of her application, Widmaier also submitted a series of letters she and her attorney sent to Conrail expressing an interest in purchasing the right-of-way adjoining her property. The most recent of those letters was dated October 14, 2005, almost a year before the start of the hearings before the Board in September 2006. Widmaier's attorney indicated that Conrail had not responded to that letter or another similar letter sent on September 21, 2005.
Plaintiff Henry Wollman, whose home adjoins Widmaier's property, testified that he communicated with Conrail regarding the purchase of the property in 2004, and as a result a Conrail representative had come to see the property. Thereafter, Conrail had offered to sell him the right-of-way for an amount in excess of $100,000. However, he was not interested in purchasing the property at that price.
At the conclusion of the hearing, the Board voted 6-1 to approve Widmaier's application, and on March 7, 2007, the Board adopted a memorializing resolution discussed later in this opinion.
Wollman then brought this action in lieu of prerogative writs challenging the Board's approval of Widmaier's application. One of the grounds of Wollman's challenge was that "the Board's resolution failed to set forth specific findings of fact and conclusions of law sufficient to support approval of [Widmaier's] application for variance relief." On April 7, 2008, the trial court issued a written opinion affirming the Board's approval. The opinion did not contain any discussion of Wollman's argument that the Board's resolution did not set forth the findings of fact and conclusions of law required to justify Widmaier's variance application.
N.J.S.A. 40:55D-70 provides two alternative grounds upon which a board may grant a bulk variance. N.J.S.A. 40:55D-70(c)(1) provides:
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 [N.J.S.A. 40:55D-62 to -68.6] would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship . . . .
N.J.S.A. 40:55D-70(c)(2) provides in pertinent part:
[W]here in an application or appeal relating to a specific piece of property 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, grant a variance to allow departure from regulations pursuant to [N.J.S.A. 40:55D-62 to -68.6].
To obtain a variance under either (c)(1) or (c)(2), an applicant also must show 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-70.
To assure compliance with these statutory requirements, a board's decision on an application for a variance must be grounded upon specific findings of fact and conclusions of law. See Medici v. BPR Co., 107 N.J. 1, 23-25 (1987); Commons v. Westwood Zoning Bd. of Adjustment, 81 N.J. 597, 610 (1980). Such findings must be directly related to the statutory prerequisites for granting a variance and the provisions of the municipal zoning ordinance. Medici, supra, 107 N.J. at 25. Unless such findings are made, "a reviewing court cannot determine fairly whether the Board acted properly and within the limits of its authority." Commons, supra, 81 N.J. at 610 (quoting Harrington Glen, Inc. v. Bd. of Adjustment of Leonia, 52 N.J. 22, 28 (1968)); see also N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 333-34 (App. Div. 2004).
The Board's responsibility to make specific findings of fact and conclusions of law supporting the grant or denial of a variance cannot be satisfied by "a summary finding couched in the conclusionary language of the statute." Harrington Glen, supra, 52 N.J. at 28. "There must be a statement of the specific findings of fact on which the Board reached [its] conclusion [regarding] the statutory criteria for a variance. . . ." Ibid. "Moreover, the board must explain how its findings support its ultimate legal conclusions." Morris County Fair Hous. Council v. Boonton Twp., 228 N.J. Super. 635, 647 (Law Div. 1988).
The Board's resolution patently failed to comply with these requirements. That resolution stated in pertinent part:
[T]he Board makes the following findings of fact:
1. The property is located in the R-3 Residential Zone.
2. The applicant wishes to subdivide a large tract which is irregularly shaped and is pre-Lochner doctrine.
3. The applicant's engineer, Charles Surmonte, said the lots are large and irregular. The applicant and her representatives also stressed that they tried to secure the consent of Con-Rail, but were not successful.
4. Gord[o]n Gemma, PP testified that the lot exceeds the zone requirements in R-3 and both lots have been separate lots, not subject to the Lochner doctrine. He said the applicant cannot acquire additional property. He said the variance can be granted without detriment to the public good.
5. Mr. Wollman objected to the plan insisting that the applicant made no realistic attempt to purchase property from Con-Rail to alleviate the request for the variances.
6. Diane Keyes, Mr. Wollman and Barbara Murray also opposed the application; and,
WHEREAS, the applicant has testified that the application for the Subdivision approval would not impede the intent and character of the adjacent neighborhood and would promote single-family residential use, which is an approved use in the zone and no additional property can be acquired to alleviate the variances requested.
WHEREAS, the Board finds that there is no inherent negative aspect to the plan, but the applicant has demonstrated that no further land could be purchased, and that to approve the plan would be consistent with the Municipal Land Use Law and Zoning Ordinances of the Borough of Ocean-port . . . .
This resolution does not contain true findings of fact. Instead, it consists primarily of a brief recitation of the evidence presented by Widmaier, the fact that Wollman and others objected to the application, and then a statement of a broad general conclusion "that there is no inherent negative aspect to the plan, . . . and that to approve the plan would be consistent with the [MLUL] and Zoning Ordinances of the Borough of Oceanport." Based on this conclusionary statement, we are unable even to determine whether the Board granted the variance from the frontage requirement of the zoning ordinance based on (c)(1) or (c)(2), or both.
Moreover, this is not a case in which the evidence presented at the hearing clearly demonstrated Widmaier's entitlement to the requested variance relief, and therefore, it might be appropriate to affirm the Board's resolution notwithstanding the lack of the required findings of fact and conclusions of law. Cf. Kaufmann v. Planning Bd., Twp. of Warren, 110 N.J. 551, 564 (1988). Rather, the record before the Board raised substantial questions regarding Widmaier's entitlement to a variance.
If the Board's approval of a variance from the frontage requirement was based on subsection (c)(1), it was required "to consider first the origin of the existing situation. If the property owner or his predecessor in title created the nonconforming condition, then the hardship may be deemed to be self-created." Commons, supra, 81 N.J. at 606; accord Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 590-91 (2005).
However, Widmaier presented no evidence regarding the date of adoption of the zoning provisions that caused lot 21 to become nonconforming, when she or her predecessor in title acquired that lot,*fn1 or any other circumstances relevant to the status of this lot, and thus the Board made no findings as to whether the hardship she claimed was self-created.
Another relevant consideration in determining whether an applicant has demonstrated the "hardship" required for a variance under (c)(1) is "the efforts which the property owner has made to bring the property into compliance with the ordinance's specifications." Jock, supra, 184 N.J. at 594 (quoting Commons, supra, 81 N.J. at 606); see generally William M. Cox & Donald M. Ross, N.J. Zoning & Land Use Administration § 12-1.4 (Gann 2007). In determining whether the applicant has made such effort, a board should consider whether "it is feasible [for the applicant] to purchase property from the adjoining property owners." Commons, supra, 81 N.J. at 606.
Widmaier attempted to address this consideration by introducing into evidence a series of letters she and her counsel had sent to Conrail expressing an interest in acquiring the Conrail forty-foot right-of-way. Widmaier claimed that Conrail's failure to respond to the last two of those letters demonstrated that it was not feasible for her to acquire the Conrail property. However, the last of those letters was sent to Conrail on October 14, 2005, nearly a year before the start of the hearing before the Board on September 13, 2006, and Wollman testified that shortly before the hearing he had communicated with a Conrail representative, who indicated that Conrail had a continuing interest in selling its property. Moreover, the letters Widmaier introduced into evidence indicated that she had engaged in active negotiations with Conrail for purchase of the property before 2005. One letter from Widmaier's attorney to Conrail's real estate manager, dated April 27, 2002, stated:
Mrs. Widmaier has written to you in the past, most recently on August 9, 2001, at which time she appeared to have agreed to the $10,000.00 purchase price for a right-of-way over the Conrail easement so that she could reach the rear of her property.
I would appreciate your contacting me as to whether or not this transaction can still go forward as we are in the process of preparing the subdivision maps and I cannot appear before the Planning Board until I know I have a means of ingress and egress to the rear of my client's property.
Another letter from Widmaier's attorney to the Conrail's real estate manager, dated November 16, 2004, stated:
In early July, I spoke to you by telephone and discussed my client's continued interest in purchasing the above right of way. At this time, you advised that you would be willing to discuss the purchase of same once all easements were negotiated and resolved with the local gas and electric utility companies. You anticipated that this would be accomplished within two to three months.
The record does not indicate the outcome of these discussions between Widmaier and Conrail regarding acquisition of the Conrail right-of-way.
The Board's resolution does not include any finding regarding Widmaier's efforts to acquire the Conrail property. It simply states in conclusionary form that "the applicant has demonstrated that no further land could be purchased," without referring to the letters that seem to indicate that there was a tentative agreement at one time for Conrail to convey the property to Widmaier or Wollman's testimony regarding Conrail's continuing willingness to sell the property.
In addition, one Board member acknowledged during the hearing that Widmaier's proposed development of lot 21 would be similar to the creation of two flag lots, and that flag lots have negative features that may raise questions concerning the conformity of such development with the zoning plan:
[I]t is in effect a flag lot[.] I know there's flag lots in the neighborhood, but generally flag lots are looked down upon . . . because they have a negative impact.
In response, Widmaier's planning expert, Gemma, discussed whether the proposed development of lot 21 would create flag lots, and if so, the conformity of those lots with the zoning plan, and whether any negative impacts could be ameliorated by requiring the new lots to face the Conrail property. In the course of his comments, Gemma stated:
The negatives of a flag lot usually are that you're going to have someone's front property looking into the back property. So you have inconsistent utilization of property.
[O]bviously there is an impact. But in my opinion, given the location and given the surrounding uses, it's not a substantial detrimental one. . . .
The negative impacts of the flag lot characteristics of the proposed new lots raised an obvious issue as to whether the grant of Widmaier's variance application would "substantially impair the intent and purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70. However, the Board's resolution simply states in conclusionary form that "there is no inherent negative aspect to the plan," without specifically addressing this issue.
Accordingly, we reverse the judgment of the Law Division affirming the Board's grant of Widmaier's application and remand the matter to the Board for reconsideration and the issuance of a new resolution containing detailed findings of fact and conclusions of law in conformity with this opinion.*fn2 In view of the deficiencies in Widmaier's proofs identified in this opinion, the Board also should allow Widmaier to supplement the record in support of her application, including the presentation of her own testimony regarding the date and circumstances of her acquisition of lot 21 and both the outcome of her prior negotiations with Conrail and the status of any more recent negotiations. Jurisdiction is not retained.