May 11, 2009
GEORGE E. HALL, PLAINTIFF-APPELLANT,
TOWNSHIP OF MIDDLETOWN PLANNING BOARD AND ELAINE CHEVALIER, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 22, 2009
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 place the proposed settlement terms on the record. The notice provided in its entirety:
PLEASE TAKE NOTICE that a Public Hearing will be held on Wednesday, May 2, 2007, at 6:30 p.m. in Town Hall, One Kings Highway, wherein the Applicant, ELAINE CHEVALIER, and the Planning Board will place on the record the terms and conditions of a proposed certain settlement reached between the Applicant and the Planning Board in the matter of Chevalier v. the Township of Middletown Planning Board pending in the Monmouth County Supreme Court [sic] under Docket No. MON-L-2484-06.
The meeting is open to the public and the public shall have the right to ask questions and comment on the settlement application. After the public comment period is concluded, the Board will vote in public either to approve or disapprove the terms of the settlement reached between the Applicant and the Planning Board.
A copy of the application has been filed in the office of the Planning Board, One Kings Highway, Middletown, New Jersey and may be inspected during the hours of 9:00 a.m. to 5:00 p.m., Monday through Friday.
The settlement terms, as announced at the meeting, were that: (1) Chevalier agreed not to further subdivide her property; (2) the new structure to be built on the smaller lot would not exceed 7,000 square feet of floor space; (3) the frontage of the property would be "encapsulated into a conservation easement"; and (4) the existing cottage on the smaller lot would not be expanded without an application to the Board to modify or waive the condition.
At the Board hearing, Hall objected to the settlement on the grounds that the proposed plan was in no way modified, altered or revised; thus the Board lacked both jurisdiction and a basis to reconsider its prior decision. Hall also challenged the Board's action as simply a reconsideration of the petition it had previously denied, rather than a settlement.
The Board maintained it had jurisdiction to settle the case pursuant to Whispering Woods v. Twp. of Middletown Planning Bd., 220 N.J. Super. 161 (Law Div. 1987).*fn1 The Board also declared that the settlement was appropriate because, "If we made a mistake, we are not required to try the case to prove that we were stupid. We come back and settle it." The Board approved Chevalier's application subject to the conditions in the settlement agreement.
The Board adopted a resolution stating that the parties agreed to settle "based upon [Chevalier's] offer to place restrictions on the further development of the property;" specifically, Chevalier agreed to record a deed restriction prohibiting further subdivision of the property. The resolution also noted: the conditions restricting new construction on the smaller lot to a maximum of 7,000 square feet of floor space; the prohibition against expanding the existing cottage beyond its current footprint; the entry of a seventy-five foot conservation easement along the frontage of the larger lot; and the Board's right to final architectural review of any new construction on the smaller lot prior to issuing a building permit. The Board found that the restrictions constituted a significant change in the application, giving the Board jurisdiction to consider settlement. The Board further found the restrictions fully addressed its concerns as to overdevelopment of the area. Specifically, the restrictions would preclude Chevalier from subdividing the property into three conforming lots. Finally, the Board found that Chevalier had proven the negative and positive criteria and was entitled to a C-2 variance. The Board determined that:
As to negative criteria, the settlement removes any substantial impairment of the master plan and zoning ordinance. The restrictions to be placed on the property would result in two oversized lots, with appropriately sized houses and improvements, in keeping with the master plan and zoning ordinance. The restrictions offered by the applicant have ameliorated any substantial detriment to the public good. Whatever detriments there may be are outweighed by the benefits derived from the restrictions now being placed on the property.
Chevalier withdrew her action in lieu of prerogative writs with prejudice. However, Hall filed an action in lieu of prerogative writs challenging the settlement. Hall argued that: the Board lacked jurisdiction to reverse itself while Chevalier's appeal was pending; the settlement did not fall within the Whispering Woods exception; the settlement terms were no different from the initial application; and that improper notice was given of the settlement meeting.
Judge Lawson rejected these arguments and issued a written decision affirming the Board's approval of Chevalier's application. He first noted the Board's decision is entitled to substantial deference. He then held the Board had authority to enter into a settlement agreement pursuant to the Whispering Woods exception, because the deed restrictions included in the settlement were not a part of the original application. He also found the notice of the May 2, 2007 settlement meeting provided a sufficient description of "the nature and character of the proposed development" to enable members of the general public to make an informed decision as to whether they would like to participate in the meeting. Moreover, the general public had been provided with sufficient notice, beginning in 2005, of the nature and character of Chevalier's application to satisfy the notice requirements of N.J.S.A. 40:55D-11.
Judge Lawson rejected Hall's contention that Whispering Woods requires two separate hearings to effectuate a settlement agreement, particularly where, as here, all the terms of the settlement agreement were set forth and agreed upon in the May 2, 2007 meeting. Judge Lawson declined to review the grant of the C-1 and C-2 variances. He specifically noted: "In every case where settlement is a possibility the court must reconcile competing interests, the public's right to notice and to be heard in the legislative or quasi judicial proceeding of the public body and the strong judicial policy of favoring settlement of litigation." To review the substantive merits of the variances would be to function as a "super zoning legislature" in contravention of New Jersey policy.