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Elwood v. Zoning Board of Adjustment of the Borough of Wanaque


November 17, 2009


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1163-08.

Per curiam.


Submitted September 22, 2009

Before Judges Wefing, Messano and LeWinn.

Plaintiff Ruth Ann Elwood is the owner of an oversized unimproved corner lot in an area of Wanaque Borough that is zoned for single-family residential use; plaintiff Dean Builders, Inc., (Dean) is a home builder/developer and the contract purchaser of plaintiff's property, which contract is subject to subdivision of the property into two lots.*fn1

Plaintiff's lot is in an R-10 zone, which requires a minimum lot size of 10,000 square feet for a one-family dwelling. The total area of plaintiff's lot is 16,167 square feet. Plaintiff sought to subdivide her property into two lots, one of 8,758 square feet and the other of 7,409 square feet; thus, neither of the resulting two lots would have the required minimum of 10,000 square feet.

When plaintiff submitted her subdivision application, Wanaque's municipal attorney determined that it required a density variance pursuant to N.J.S.A. 40:55D-70(d), rather than subdivision approval under N.J.S.A 40:55D-60. Therefore, plaintiff was directed to submit her application to the Zoning Board of Adjustment (Zoning Board) rather than to the Planning Board. Plaintiff complied, but reserved her right to object to the municipal attorney's decision.

Following a hearing, the Zoning Board voted four to three to grant the application. Density variance approval, however, requires the vote of five Zoning Board members. N.J.S.A. 40:55D-70(d). Therefore, plaintiff's application was denied.

Plaintiff filed an action in lieu of prerogative writs in the Law Division. Following oral argument, the trial judge determined that plaintiff's application came within the exception set forth in N.J.S.A. 40:55D-70(d)(5), which provides that a density variance is not required when "applied to the required lot area for a lot or lots for detached one or two dwelling unit buildings, which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision."

The judge noted that "density" is defined in N.J.S.A. 40:55D-4 as "the permitted number of dwelling units per gross area of land to be developed." The judge concluded:

They weren't putting a two[-]family house on a lot that only allowed for one family. They weren't putting up a four[-]unit apartment building. . . .

And I don't see this as a density issue. I see this as [a] minor subdivision to approve dividing one lot into two undersized lots, but if granted, the structure that would have been built on the approved subdivision would not have created a density problem.

My opinion is that this application should not have gone before the Board of Adjustment, it should have gone before the Planning Board. [It s]hould not have been one that was indicated as an application that required a use variance or a density variance, but rather an undersized lot variance.

I don't . . . disagree that a variance was required. I don't call that a density variance or a use variance. I call that a bulk variance, an undersized lot variance which the Planning Board, as part of the subdivision, would be permitted through the ancillary power of that Board to either grant or deny.

The judge then determined that, because the Zoning Board's vote was "a nullity[,]" plaintiff had to re-file her application "before the Planning Board, start anew, notice to the public, new hearing and take it from there." The judge reasoned that one cannot "have people voting for something and then after the vote has been recorded have a decision occur that may or may not be what the vote would have been had the true state of affairs been known."

The Zoning Board appeals, contending that the trial judge erred in determining that "there is no density issue involved." Plaintiff cross-appeals, contending that the trial judge erred in requiring her to make a new application before the Planning Board because the Zoning Board had sufficient "ancillary" jurisdiction to approve her application. Having reviewed the record in light of these contentions and the controlling legal principles, we are satisfied that the trial judge's decision is correct in all respects, and affirm. We add the following comments.

Under the Municipal Land Use Law (MLUL), density, as the trial judge noted, means "the permitted number of dwelling units per gross area of land to be developed." N.J.S.A. 40:55D-4. Pursuant to N.J.S.A. 40:55D-70(d), a zoning board of adjustment is authorized to "grant a variance to allow departure from regulations pursuant to . . . this act to permit . . . an increase in the permitted density as defined in [N.J.S.A. 40:55D-4] . . . . A variance under this subsection shall be granted only by affirmative vote of at least five members[] in the case of a municipal board . . . ." As the trial judge further noted, however, N.J.S.A. 40:55D-70(d)(5) provides an exception to the density variance requirement "as applied to the required lot area for a lot or lots for detached one or two dwelling unit buildings, which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision." Ibid.

"Minor subdivision" is defined in the MLUL as "a subdivision of land for the creation of a number of lots specifically permitted by ordinance as a minor subdivision; provided that such subdivision does not involve (1) a planned development, (2) any new street or (3) the extension of any off-tract improvement . . . ." N.J.S.A. 40:55D-5. It is undisputed that plaintiff's application involves none of these three exceptions.

"Pursuant to the . . . [MLUL] . . . , each municipality may define what constitutes a minor . . . subdivision." Grubbs v. Slothower, 389 N.J. Super. 377, 383 (App. Div. 2007). Wanaque defines a "minor subdivision" as "[a] subdivision of land that does not involve the creation of more than four lots; planned development; any new street; or extension of any off-tract improvement." Wanaque, N.J., Code, ch. 98, art. 1, §2 (1976). Plaintiff's application to create two lots is thus "specifically permitted by ordinance as a minor subdivision . . . ." N.J.S.A. 40-55D-5. The MLUL "contemplates" that a board's review of a subdivision proposal "must be made within the framework of the standards prescribed by the subdivision and, if pertinent, the zoning ordinances." Pizzo Mantin Group v. Twp. of Randolph, 137 N.J. 216, 229 (1994).

We concur with the trial judge's determination that plaintiff's application is squarely within the statutory exception in N.J.S.A. 40:55D-70(d)(5). A minor subdivision of one single-family residential lot into two such lots is clearly exempt from the standards imposed upon a density variance, and comes within the purview of the Planning Board's authority.

The Zoning Board argues that since plaintiff's application "sought the creation of two . . . new lots, neither of which would have the [required] ten thousand square feet," it is the "lack of square footage that requires a density variance and not the mere fact that neither of the lots conform[s] to the dimensional requirements of a lot in the R-10 Zone." We disagree.

The density variance exception in N.J.S.A. 40:55D-70(d)(5) applies to "the required lot area for . . . lots for detached one[-] . . . dwelling unit buildings, which . . . lots are resulting from a minor subdivision . . . ." (Emphasis added.) We read this language to mean that the exception applies contemporaneously with the approval of the minor subdivision. In other words, lots which result from the Planning Board's approval of a minor subdivision, irrespective of the size of the resulting lots, do not require a density variance based upon minimum lot size requirements in the zone. This statutory language has been recognized as "the minor subdivision exception" to the density variance requirements in N.J.S.A. 40:55D-70(d). Cox, New Jersey Zoning and Land Use Administration, § 7-7.2 at 238 (2009).

"We ascribe to . . . statutory words their ordinary meaning and significance, and read them in context with related provisions so as to give sense to the legislation as a whole . . . ." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citations omitted). "Further, we must construe statutes in a manner that avoids unreasonable results unintended by the Legislature." Am. Fire & Cas. Co. v. N.J. Div. of Taxation, 189 N.J. 65, 81 (2006).

The Zoning Board's position in this matter implies that, to come within the statutory exception, the lots in issue had to exist prior to plaintiff's minor subdivision application. This position, however, finds no support in the MLUL.

Where, as here, the Zoning Board erred as a matter of law in subjecting plaintiff's application to the standards and proofs pertinent to a density variance, we owe that decision no particular deference and we review the matter de novo. Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adj., 397 N.J. Super. 335, 350 (App. Div. 2008). The Zoning Board has "no peculiar skill superior to the courts" in interpreting legal issues. TWC Realty P'ship v. Zoning Bd. of Adj. of the Twp. of Edison, 315 N.J. Super. 205, 211-12 (Law Div. 1998), aff'd, 321 N.J. Super. 216 (App. Div. 1999) (citation ommitted). We are satisfied that, under the circumstances, the trial judge properly construed the pertinent statutory provisions when he determined that plaintiff's application came within the exception in N.J.S.A. 40:55D-70(d)(5).

In her cross-appeal, plaintiff contends that the judge erred in ruling that she must "start anew" before the Planning Board. We conclude, however, that once the trial judge declared the Zoning Board's action a nullity, he properly determined that plaintiff was required to submit her application to the body under whose jurisdiction such applications fall. N.J.S.A. 40:55D-60.

Plaintiff argues that the Zoning Board has "ancillary jurisdiction" under N.J.S.A. 40:55D-76(b) to review and approve subdivisions. That statute provides, in pertinent part:

The board of adjustment shall have the power to grant, to the same extent and subject to the same restrictions as the planning board, subdivision or site plan approved pursuant to [N.J.S.A. 4055D-37*fn2 ] . . . whenever the proposed development requires approval by the board of adjustment of a variance pursuant to . . . [N.J.S.A. 40-55D-70].

Such jurisdiction is thus supplementary to a density or use variance application which is properly before the board of adjustment. Under those circumstances, an applicant would not be required to proceed jointly before the planning board and the zoning board of adjustment.

Plaintiff notes that fifteen months have elapsed since she initially filed her application, and contends that significant delay was caused by the municipal attorney's mistaken advice to present her application to the Zoning Board. Plaintiff states that more time will have been consumed by the Zoning Board's appeal, and further contends that the trial judge should have "allow[ed] the [Zoning Board's] 4-3 vote to serve as final approval of the minor subdivision, lot width and area variances."

Significantly, however, plaintiff notes that she "would not have appealed if defendant had not appealed." We take that to mean that, had the Zoning Board accepted the judge's determination that plaintiff's application did not belong before it, plaintiff would have proceeded to file a new application before the Planning Board. We are satisfied that such is the proper course.

Plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(1)(E). Suffice it to say, neither collateral estoppel principles nor standards governing our exercise of original jurisdiction under Rule 2:10-5 are pertinent here.


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