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Cronin v. Planning Board of the Borough of Spring Lake Heights


April 13, 2009


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4694-07.

Per curiam.


Submitted March 9, 2009

Before Judges Carchman and R. B. Coleman.

Following the denial by defendant Planning Board of the Borough of Spring Lake (the Board) of an application for a minor subdivision, plaintiff William Cronin filed an action in lieu of prerogative writs in the Law Division. After trial, Judge Lawson determined that the denial of the application was neither arbitrary nor unreasonable, and he entered judgment for defendant. We affirm.

We briefly set forth the relevant facts. Plaintiff is the owner of property located at 1104 Allaire Road in the Borough of Spring Lake Heights (the Borough). The property is 103 feet wide, 174 feet deep and is rectangular in shape. It consists of 17,987 square feet. The property, located on the north side of Allaire Road, bounded on the north by Robinson Park and on the east by an apartment complex, contains a two-story single-family residence in the front portion of the property and a "garage apartment" in the rear. Access to the apartment is provided by a driveway that is ten feet wide. The single-family dwelling is 30.37 feet from Allaire Road, has a western side yard setback of 12.10 feet, and an eastern side yard setback of 15.42 feet. The apartment pre-dated plaintiff's acquisition of the property, which occurred in 2004.

After purchasing the property, in 2005, plaintiff filed an application with the Borough's Zoning Board of Adjustment, seeking to convert the first floor of the apartment (garage area) to living space, increasing the living space from 500 to 1,000 square feet. The application, which required a use variance approval due to an ordinance barring two residential structures on one lot, was granted on March 25, 2006, because "the multi family use would be consistent with the surrounding properties" and that plaintiff would "suffer an undue hardship" without variance relief.

In August 2006, plaintiff filed an application with the Board to raze the rear structure, and subdivide his property into two lots, Lots 63.01 and 63.02. As proposed, the front lot would be 10,300 square feet, and the rear lot, would be approximately 7,687 square feet in size. The application proposed to widen the existing driveway to a width of fifteen feet, with an easement granted to the rear property for ingress and egress.

The Borough's zoning requirements and their impact on the application are as follows:

Existing Lot

Proposed Lot

Proposed Lot 63.01

Regulation Required


Lot Area

(in sq. feet)

7,500 17,986.89 10,300 7,686.89


75 103 103 0 feet

(in feet)


Width 75 103 103 103 Depth 100 174.63 100 74.63


Frontyard 30 30.37 30.37 30 Sideyard 10 12 12 10 Rearyard 10 5.91 45.1 10 Building coverage

20 14 14 20 Lot Coverage 50 33 <50 50="" building="">

30 26.6 26.6 30

Based on the dimensions of the lot, the plaintiff required variances for the following: 1. minimum lot frontage where 75 feet is required and zero feet is proposed; 2. minimum lot depth where 100 feet is required and 74.63 feet is proposed; 3. construction of a principal building on a lot with only easement access where Ordinance 22-609.2 requires that all principal structures must be built on a lot with frontage on a public street.

On January 23, 2007, the Board conducted its hearing on the application. The Board relied upon a review letter submitted to the Board by Francis Mullen, the Board's engineer, as well as the testimony of plaintiff and plaintiff's expert professional planner, Victor Furmanec.

Mullen's report provided a detailed analysis of the application, without making a recommendation on its merits. He did recommend, however, that plaintiff address the impact of the proposal on surrounding properties and "[a]t a minimum, testimony should confirm that the proposed dwelling shall be compatible with [the] surrounding neighborhood." Mullen also requested that plaintiff submit a stormwater management plan and obtain the necessary letters of approval from the Freehold Soil Conservation District as well as construction code approval.

After being qualified as an expert, Furmanec, verified the dimensions of the property and discussed the application of Kaufmann v. Planning Bd. of Warren, 110 N.J. 551, 563 (1988). He opined that, like the facts in Kaufmann, the application provided a better zoning alternative because it eliminated the need for a use variance (for two principal structures on one lot) and that the property density for the subdivided lots would be consistent with the community. Specifically, he noted that lots in the neighborhood are generally comprised of 7,500 square feet. Furmanec asserted that by allowing plaintiff to construct a one-family dwelling, as opposed to the vacant apartment, home ownership in the neighborhood would be encouraged. He also noted that the rear property already has access to all of the required utilities, there would be no increase in traffic and that each structure has provisions for two parking spaces. Furmanec conceded that no other properties in the area were "landlocked." He added that the proposal is unique, but that "the property is unique in the manner in which it's [currently] used." In his opinion, the plan was an improvement because "[w]e get rid of essentially a garage apartment which is only five and a half feet off the rear." He added "And I think the Board, even if it [ap]proves the case, doesn't have to walk away tonight saying we set a bad precedent."

Plaintiff next indicated that the proposed structure on the rear property would be approximately thirty by forty feet. He informed the Board that if the application was rejected he would most likely rent the property.

The Board voted unanimously to deny the application. The Board memorialized its decision by Resolution on February 27, 2007. Among other things, the Resolution provided:

The Board finds that the zoning scheme is to have buildings face on improved roadways for the purpose of providing adequate access to ensure the health[,] safety and welfare of its residents as specifically provided in Ordinance 22-609.2 and as codified in N.J.S.A. 40:55D-35.

The Board understands that the density of dwelling units per acre will remain the same as that as now exists and that by subdividing the lot that the zoning intent of having one dwelling on one lot would be advanced. However the Board finds that approving the subdivision as configured would present a detriment to the zoning scheme by establishing and creating a fully independent lot and dwelling that has no frontage on the street, limited emergency accessibility, and no public accessibility. The Board finds that creating a lot as proposed will create a visual oddity in the community and a developmental anomaly in the zone plan.

Also while the intent to have one dwelling on one lot may be advanced by the subdivision, this advancement will be found on paper only and must in the opinion of the Board, as with all of the reasons proposed, give away to the detriments that having a large essentially landlocked house located in the rear of an existing lot presents.

Plaintiff then filed a complaint in lieu of prerogative writ in the Law Division. Following trial, Judge Lawson found that the Board's action and refusal to create a landlocked lot was proper.

On appeal, plaintiff urges that the variance and subdivision should have been granted because the subdivision advanced the purposes of zoning and the benefits of deviation from the zone plan outweighed any detriment.

We first address the standard of review that informs our consideration of this appeal. In light of "their peculiar knowledge of local conditions," both planning and zoning boards' decisions are presumed valid. Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965); Wilson v. Brick Twp. Zon. Bd., 405 N.J. Super. 189, 196 (App. Div. 2009); Medical Ctr. at Princeton v. Princeton Twp. Zoning Bd., 343 N.J. Super. 177, 213 (App. Div. 2001). Whether a variance or subdivision applicant has successfully met the relevant statutory criteria is "entrusted to the sound discretion of the municipal boards." Kaufmann, supra, 110 N.J. at 558; Medical Ctr., supra, 343 N.J. Super. at 198. The party challenging the board's decision bears the burden of overcoming its presumption of validity. Cell S. of N.J., Inc. v. Zoning Bd. of Adj., W. Windsor Twp., 172 N.J. 75, 81 (2002). "[C]courts ordinarily should not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. Zoning Bd. of Adj. of the Borough of N. Caldwell, 160 N.J. 41, 58-59 (1999). Reviewing courts may not substitute their own judgment for that of a board, and the board's "determination will be set aside only when it is arbitrary, capricious or unreasonable." Wilson, supra, 405 N.J. Super. at 196 (quoting Kramer, supra, 45 N.J. at 296-97). Even where the court doubts the outcome, it cannot declare the board's action invalid absent a clear abuse of discretion. Kramer, supra, 45 N.J. at 296-97. With these principles in the forefront, we now address the merits of the appeal.

The narrow issue on appeal is whether the Board acted in an arbitrary manner when it denied plaintiff's application. Despite the existence of two structures on plaintiff's lot and both dwellings currently utilizing a single driveway, the Board determined that plaintiff's application did not establish the requisite statutory criteria. Although the Board's purported reasoning -- aesthetics and safety -- are already impacted by the lot's current configuration, plaintiff offered little to demonstrate that his proposal was a better alternative than the property's current use.

Plaintiff essentially sought to create a landlocked flag-lot, utilizing an easement to access the rear of the property. The revised rear lot suffered two dimensional deficiencies -- frontage and depth -- and required two variances. N.J.S.A. 40:55D-70(c)(2).

The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, requires that two types of criteria ("positive" and "negative") must be established under N.J.S.A. 40:55D-70(c)(2) to support approval of a (c)(2) zoning variance. The positive and negative criteria must be established by a fair preponderance of the evidence. Miriam Homes, Inc. v. Perth Amboy Bd. of Adj., 156 N.J. Super. 456, 459 (App. Div. 1976).

The positive criteria are governed by N.J.S.A. 40:55D-70(c)(2), which 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. . . . [N.J.S.A. 40:55D-70(c)(2) (emphasis added).]

N.J.S.A. 40:55D-2, provides that:

It is the intent and purpose of this act:

a. To encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare;

b. To secure safety from fire, flood, panic and other natural and man-made disasters;

c. To provide adequate light, air and open space; . . . .

e. To promote the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, communities and regions and preservation of the environment; . . . .

i. To promote a desirable visual environment through creative development techniques and good civic design and arrangement; [(Emphasis added).]

In sum, to establish the positive criteria for a (c)(2) variance, the applicant must demonstrate that the proposed deviation from the zoning ordinances represents a "better zoning alternative" and advances the purposes set forth in N.J.S.A. 40:55D-2. Kaufmann, supra, 110 N.J. at 563. "[N]o [(c)(2)] variance should be granted when merely the purposes of the owner will be advanced." Ibid. The focus of a subsection (c)(2) 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).

Consideration of (c)(2) variances has been the subject of extensive discussion. For example, in Bressman v. Gash, 131 N.J. 517, 530-31 (1993), the Court held that a (c)(2) variance was properly granted for a deviation from a rear yard setback because such a deviation promoted a "desirable visual environment" by allowing the applicant to construct a home that conformed to the character of the area. In Kaufmann, the Court found that a (c)(2) variance was properly granted where the variance created two non-conforming lots (each would have a lot width of 83.74 where 100 feet was required). Kaufmann, supra, 110 N.J. at 554. The Court noted that "the surrounding neighborhood consists of a mix of older and newer residential homes with the vast majority of lots having frontage widths of less than 100 feet[,]" and that the Township had reduced the required lot size from 1.5-acres per lot to 20,000 square feet per lot. Id. at 555.

Recently, we upheld the denial of a (c)(2) variance in Wilson. The plaintiff in Wilson constructed a large deck with a pool built into the structure, the combination of which covered his entire back yard. The improvements were constructed without obtaining the necessary permits and approvals. During the construction and after the subsequent issuance of a stop work order from the town, the plaintiff filed an application with the local zoning board for variance relief from several of the bulk requirements, including the rear yard setback of zero feet where fifteen feet were required. The local board denied the variance relief, and the plaintiff filed an action in lieu of prerogative writs, and after a trial on the matter, the board's decision was upheld.

On appeal, we reversed and remanded on other grounds, but with respect to the (c)(2) variances, we concluded that "we agree with [the board] and the trial court that the criteria for a [(c)(2)] variance were not demonstrated in this case." Wilson, supra, 405 N.J. Super. at 199. We reasoned:

In this case, based on the proofs submitted, [the board] concluded that rather than advancing any benefit to the community, the application would merely alleviate a hardship to the applicant which he himself created. Given the proofs and findings in this case, we find sufficient support in the record that the purposes of the MLUL set out in sub-section(a) of N.J.S.A. 40:55D-2, as well as sub-sections (e) and (g), would not be advanced by plaintiff's improvements. [Id. at 199-200.]

We now address the negative criteria. The first prong of the negative criteria in the statute requires consideration of whether the variance can be granted without substantial detriment to the public good, and "focuses on the impact the ordinance will have on the specific adjacent properties affected by the permitted deviations from the ordinance." Lang, supra, 160 N.J. at 57. The second prong requires consideration of whether the variance would impair the intent and purpose of the zone plan or zoning ordinance, and "focuses on whether the grant of the variance can be reconciled with the zoning restriction from which the applicant intends to deviate." Id.

In his decision affirming the denial of relief by the Board, Judge Lawson eschewed plaintiff's reliance on Kaufmann. He distinguished this case from Kaufmann by observing that in the latter, the proposed subdivision represented conformity with the community development plans and the zoning within the neighborhood.

We agree that Kaufmann does not apply here. A (c)(2) variance also may not be granted based solely on advancement of the property owner's personal interests. Kaufmann, supra, 110 N.J. at 563. In Kaufmann, the Supreme Court stated:

The 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 not on the characteristics of the land that, in light of current zoning requirements, create a "hardship" on the owner warranting a relaxation of standards, but on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community. [Ibid.]

As we recently observed in Wilson:

A [(c)(2)] variance then is not based upon "hardship" but "requires a balancing of the benefits and detriments from the grant of the variance." Bressman v. Gash, 131 N.J. 517, 523 (1993), [(]citing Kaufmann, supra, 110 N.J. at 558-60[)]. The analysis focuses on advancing the purposes of the MLUL and the benefits to the community.

In sum, the application for a variance under [(c)(2)] requires:

(1) [that it] relates to a specific piece of property; (2) that the purposes of the Municipal Land Use Law would be advanced by a deviation from the zoning ordinance requirement; (3) that the variance can be granted without substantial detriment to the public good; (4) that the benefits of the deviation would substantially outweigh any detriment and (5) that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance. [William M. Cox, New Jersey Zoning and Land Use Administration, § 6-3.3 at 143 (Gann 2008), [(]citing Ketcherick v. Bor. of Mountain Lakes, 256 N.J. Super. 647, 657 (App. Div. 1992)[)]; Green Meadows [at Montville, L.L.C. v. Planning Bd. of Montville, 329 N.J. Super. 12, 22 (App. Div. 2000)].] [Wilson, supra, 405 N.J. Super. at 198.]

We agree with Judge Lawson that plaintiff failed to provide adequate proofs regarding the positive and negative criteria. Particularly noteworthy is that no other landlocked parcels could be located in the area. Moreover, plaintiff's expert failed to adequately address the landlocked nature of the rear lot in relation to its current configuration whereby both dwellings are part of one property, which, overall, meets all of the dimensional requirements of the ordinances and has frontage.

Unlike the facts in Kaufmann, where the proposal would have created properties that had very similar characteristics to other lots in the area, here, plaintiff's expert conceded that he was unable to find any other similar properties. Plaintiff further failed to establish that the newly constructed rear property would be consistent with the characteristics of the neighborhood.

As in Wilson, the proposed (c)(2) variance does not present a better zoning alternative and advances only the applicant's interests. The only potential benefits to the community offered are (1) having an owner-resident on the property as opposed to a tenant -- a dubious proposition at best -- and (2) having two lots similar in size to other lots in the area. This latter limited benefit, however, is substantially outweighed by it being a landlocked property.*fn1

Addressing this specific issue, the Board's Resolution properly found that:

[W]hile the intent to have one dwelling on one lot may be advanced by the subdivision, this advancement will be found on paper only and must in the opinion of the Board, as with all of the reasons proposed, give away to the detriments that having a large essentially landlocked house located in the rear of an existing lot presents. [(Emphasis added).]

Judge Lawson was correct in concluding that the Board properly denied the requested relief and we affirm substantially for the reasons set forth in his written opinion of April 7, 2008.


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