On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5323-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Espinosa.
George E. Hall appeals from the dismissal, by Judge Lawrence M. Lawson, of his action in lieu of prerogative writs. This dismissal upheld the decision by the Township of Middletown Planning Board (Board), granting Hall's neighbor, Elaine Chevalier, a minor subdivision approval for a parcel of residential property. On appeal, Hall contends that: (1) the Board lacked jurisdiction to reverse its initial denial of Chevalier's application; (2) the Board provided inadequate notice of the settlement meeting; (3) the settlement was impermissible in light of the relevant case law; (4) the Board's decision to grant a zoning variance was arbitrary, capricious and unreasonable; (5) the variance was not supported by substantial evidence; and (6) Chevalier failed to meet her burden of proof with regard to the criteria for granting a zoning variance.
We reject these contentions and affirm substantially for the reasons expressed by Judge Lawrence Lawson in his written June 24, 2008 opinion.
These are the salient facts. Chevalier owned a 12.33-acre lot overlooking the Navesink River. Chevalier sought a minor subdivision to split her property into two parcels. The smaller lot is a flag lot containing a small cottage. A "flag lot" is a rear lot with a narrow corridor running alongside the front lot which permits access to a roadway. Kaufman v. Planning Bd. for Warren Twp., 110 N.J. 551, 554 (1988). The resulting shape resembles a flagpole with a flag at the top.
Middletown has a 250-foot frontage requirement. The smaller lot would have only 162 feet of frontage. Therefore, along with the subdivision, Chevalier requested a C-2 frontage variance. N.J.S.A. 40:55D-70c(2).
The size of the proposed lots is more than double the required minimum of 2.5 acres. Each lot had a buildable area which was more than double the minimum requirement. The proposed subdivision would not interfere with the existing view of the Navesink River. Chevalier's long-term plan was to eventually build a new, smaller cottage on the smaller lot. The Board expressed concern as to any new construction on the property. This was, in part, due to worries over potential traffic congestion and, in part, due to concerns that this subdivision would set precedent for other such subdivisions, which would eventually undermine the character of the neighborhood.
Approximately half of the property consisted of "critical slopes" subject to "conservation easements." These critical slopes would not interfere with any proposed construction or with any changes made necessary by the subdivision.
Hall owns property that is partially adjacent to Chevalier's property. Hall opposed Chevalier's application. At the initial application hearing, it was noted that, with the exception of Hall, Chevalier's neighbors did not oppose Chevalier's application.
Hall's planning expert, Andrew Janiw, expressed concern at the initial application hearing regarding the environmental impact of any new construction. He also discussed the Board's 2004 reexamination report and master plan, which suggested the need for less-intensive land use and recommended raising the minimum lot size from 2.5 acres to ten acres. The suggested increase in minimum lot size expressly named the Navesink River Road area, where Chevalier's property is located, as requiring less-intensive use.
At the close of testimony and arguments, the Board voted to deny Chevalier's application and adopted a resolution, finding that Chevalier had not met her burden of proof for a C-1 or C-2 variance. The Board specifically found no benefit to the public interest, no hardship justifying relief, and that minimum zoning requirements do not by themselves require maximum development of an area.
Chevalier filed an action in lieu of prerogative writs. Hall intervened in the action. Hall, Chevalier, and the Board's attorney attended a settlement conference with Judge Alexander Lehrer. Following the conference, Chevalier and the Board agreed on settlement terms. The Board then gave notice of a public meeting to ...