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Burch v. Hardwick Township Zoning Board of Adjustment


February 22, 2010


On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. L-514-07.

Per curiam.


Submitted November 12, 2009

Before Judges Graves and Sabatino.

Plaintiff Robert Burch (Burch) appeals from an order dated April 23, 2009, denying his motion for reconsideration of an order entered on March 4, 2009. That order modified the form of a resolution adopted by the Hardwick Township Zoning Board of Adjustment (Board). After reviewing the record and applicable law in light of the arguments advanced on appeal, we reverse and remand to the trial court for further proceedings consistent with this opinion.

Burch owns 4.3 acres of undeveloped property in Hardwick Township, Warren County. The property is designated as Block 1002, Lot 1.04 on the Hardwick Township tax map and it is located in an LD-Low Density Residential Zone District, which requires a minimum front yard setback of one hundred feet and a minimum side yard setback of fifty feet. The space available to build on Burch's property is restricted because Blair Creek runs through the property.

In plaintiff's initial application to the Board, he sought bulk variances with respect to both the front yard setback and the side yard setback, but Burch subsequently agreed to reduce the width of the house to comply with the side yard setback. In its resolution denying plaintiff's application for a front yard variance, the Board acknowledged the following:

The applicant and his engineer/planner have testified that the location of the dwelling house is mandated by the requirements of the New Jersey Department of Environmental Protection (NJDEP) with respect to the Blair Creek and its attending floodplain and that the applicant cannot locate the dwelling house any further for the front yard or side yard setbacks than has been proposed.

In addition, the Board did not dispute that the proposed dwelling could not "be located in full conformity with the minimum required (100 foot) front yard setback." Nevertheless, the Board was "not convinced that an increased front yard setback [could not] be achieved."

Following the Board's decision to deny his application, plaintiff filed a complaint in lieu of prerogative writs alleging inverse condemnation, among other things. Prior to trial, the parties engaged in settlement discussions, and ultimately entered into a written settlement agreement. The settlement agreement, which is attached to an amended consent judgment dated September 29, 2008, provides as follows:

1. The variance requested by the applicant for a front yard setback variance from 100 feet to 46 feet is granted.

2. The applicant agrees to relocate the residence so that it meets the side yard setback of 50 feet.

3. Prior to the issuance of a building permit, the applicant has the responsibility of obtaining any other required State (including Freshwater Wetlands), Federal or Local permits and approvals as required by law.

4. The Defendant Zoning Board shall adopt a Memorializing Resolution at a meeting on October 21, 2008 granting the front yard setback variance and shall submit the original executed Memorializing Resolution to the Plaintiff, with a copy to his attorney, within five days from October 21, 2008.

5. The applicant's prerogative writ appeal, including the Count for inverse condemnation, is dismissed.

When the Board met on October 21, 2008, it adopted a twelve-page resolution. The following language appears on page eleven of the Board's resolution:

NOW, THEREFORE, BE IT RESOLVED by the Zoning Board of Adjustment of the Township of Hardwick that, pursuant to the Amended Consent Judgment entered by . . . the Superior Court of New Jersey, Law Division, Warren County on September 29, 2008 and, particularly, the Terms of Settlement attached thereto (Paragraphs 1-5, inclusive) a BULK VARIANCE BE, and same is herewith GRANTED with respect to FRONT YARD SETBACK, which front yard setback shall be no less than forty-six (46) feet, zero (0) inches the minimum required front yard setback being 100 feet.

In December 2008, Burch filed a motion to modify the Board's resolution, arguing it contained unnecessary information that would intimidate potential buyers and reduce the marketability of the property. On March 4, 2009, the court entered an order requiring the Board to delete language in the resolution that would have required the proposed dwelling to be constructed with a minimum width of fifty feet, a maximum depth of thirty feet, and a minimum footprint of 1500 square feet. The court also required the Board to delete language specifically obligating Burch's "assigns" to obtain all requisite third-party zoning permits before obtaining a zoning permit. Finally, the court denied Burch's request for counsel fees.

Notwithstanding the required revisions, the court did not instruct the Board to delete its initial findings of facts and conclusions and other information that Burch claimed was unnecessary. The court found that the additional information in the resolution was "inconsequential." Plaintiff's motion for reconsideration was denied on April 23, 2009.

On appeal, plaintiff contends that he "is entitled to a clean resolution" pursuant to the terms of the settlement agreement "unencumbered with page after page of irrelevant . . . information." The question of what was required in the Board's memorializing resolution is a question of law. Accordingly, our review is de novo. Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999) (stating that "matters of law are subject to a de novo review"); see also Mountain Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 193 (App. Div. 2008), certif. denied, 199 N.J. 129 (2009) (noting that our review of a trial court's interpretation of the law and the application "of law to facts is de novo").

We agree with the trial court that the requirements of N.J.S.A. 40:55D-10(g)(2) are "not on point" because "the subject resolution does not and was not intended to set forth a decision by the Board with respect to an application for development." However, we are persuaded that further modification of the Board's resolution is warranted.

Ordinarily, "[t]he board's resolution should contain sufficient findings, based on the proofs submitted, to satisfy a reviewing court that the board has analyzed the master plan and zoning ordinance, and determined that the governing body's prohibition of the proposed use is not incompatible with a grant of the variance." Medici v. BPR Co., 107 N.J. 1, 23 (1987). A memorializing resolution "must contain sufficient findings, based on the proofs submitted, to satisfy a reviewing court that the board has analyzed the applicant's variance request in accordance with the statute and in light of the municipality's master plan and zoning ordinances." N.Y. SMSA, L.P. v. Weehawken Bd. of Adjustment, 370 N.J. Super. 319, 333 (App. Div. 2004); Loscalzo v. Pini, 228 N.J. Super. 291, 305 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989) ("[M]ere recitals of testimony do not satisfy the Board's statutory responsibility to make findings of fact."). Notwithstanding the usual mandate to set forth "sufficient findings," in this case, the settlement agreement precluded the need to document the procedural history and the Board's initial findings and conclusions.

"Settlement of litigation ranks high in our public policy." Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (citation omitted). "In recognition of this principle, courts will strain to give effect to the terms of a settlement whenever possible." Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 206 N.J. Super. 523, 528 (App. Div. 1985). Here, the terms of the settlement agreement, which are set forth in five numbered paragraphs on a single page, are clear and straightforward and the additional language in the Board's resolution is superfluous and unnecessary.

In view of the foregoing, the order denying plaintiff's motion for reconsideration is reversed and the matter is remanded to the trial court for the entry of an order consistent with this opinion. We do not retain jurisdiction.

Reversed and remanded.


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