May 24, 2010
THE LAST FRONTIER, INC., PLAINTIFF-APPELLANT,
BLAIRSTOWN TOWNSHIP ZONING BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. L-24-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 1, 2010
Before Judges Carchman, Lihotz and Ashrafi.
In this zoning case, plaintiff landowner seeks to build one single-family house on a vacant twenty-four acre parcel, and it needs a variance because the property does not abut any road or street. The municipal zoning board granted a conditional variance in 2002. In 2007, however, it denied the same variance because, as a result of improvements to the nearby road, the proposed driveway now creates a hazard to passing traffic and emergency vehicles.
Plaintiff brought an action in lieu of prerogative writs challenging the board's 2007 denial and also an alternative claim of inverse condemnation of its property by land use regulation. Plaintiff now appeals from an order of the Law Division dated May 21, 2009, dismissing its complaint. We affirm dismissal of plaintiff's challenge to the zoning decision. Because the Law Division did not address inverse condemnation, we reverse dismissal of that claim and remand for further proceedings in the trial court.
The twenty-four acre parcel is located in Blairstown Township, Warren County, proximate to County Road 521, also known as Hope Road. At one time, the parcel was part of a 181-acre farm. In 1908, the Lackawanna Railroad purchased a portion of the farm and built tracks, isolating the subject parcel from the road. The remaining farmland was used for residential and farming purposes, with access to Hope Road over the railroad's land by means of an unpaved driveway about 800 feet long and about ten feet wide for most of its length. No formal easement for use of the driveway was granted or recorded. At some point, the State Department of Transportation (DOT) became the owner of the railroad property.
Plaintiff, The Last Frontier, Inc., now owns the twenty-four acre parcel. Although its proposal to build a single-family house would presumably comply with the zoning ordinances of the Township, a statutory provision in New Jersey's Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -99, prohibits building on land that does not abut a street or road. N.J.S.A. 40:55D-35 states in part:
No permit for the erection of any building or structure shall be issued unless the lot abuts a street giving access to such proposed building or structure....
The essential purpose of the prohibition is to assure adequate access for emergency vehicles to protect public health and safety. See Kligman v. Lautman, 53 N.J. 517, 543 (1969).
A municipal planning or zoning board is authorized to make exceptions from the requirement of street or road abutment for hardship cases. N.J.S.A. 40:55D-36 provides in relevant part:
Where the enforcement of [N.J.S.A. 40:55D-35] would entail practical difficulty or unnecessary hardship... the board of adjustment may upon application or appeal, vary the application of [N.J.S.A. 40:55D-35] and direct the issuance of a permit subject to conditions that will provide adequate access for firefighting equipment, ambulances and other emergency vehicles necessary for the protection of health and safety....
This exception has come to be known as a planning variance.
In 2002, plaintiff applied to the Blairstown Township Zoning Board of Adjustment for such a planning variance under N.J.S.A. 40:55D-36 so that it could obtain a building permit. The Board conditionally approved the variance by resolution dated August 13, 2002. Condition five of the resolution required plaintiff to obtain a driveway access permit onto the county road from the Warren County Planning Board and also approval from the New Jersey DOT for access across the railroad property.
Plaintiff obtained county approval within a few months, but it was unable to obtain approval from the State DOT. It eventually resorted to litigation against the State, filing a complaint in 2004 for a declaratory judgment and injunctive relief to establish an easement. That litigation was settled with the State in May 2005, the DOT agreeing to grant the easement.
Between approval of the planning variance in 2002 and the easement from the DOT in 2005, Route 521 and a bridge immediately north of the driveway entrance were substantially renovated and improved. Route 521 became a divided roadway at the location of the proposed driveway so that vehicles entering or leaving the driveway cannot turn left. The driveway can now be lawfully entered and exited only by vehicles traveling in a southbound direction and only by means of a right turn. Before the improvements, only one vehicle at a time could cross the bridge, and the road contained a sharp, almost ninety-degree curve just north of the bridge. Vehicles were forced to slow down considerably or even stop when crossing the bridge near the driveway entrance. The improvements flattened the curve and widened the bridge to accommodate both directions of travel at the same time and at normal speeds. Vehicles are now likely to drive past the proposed driveway entrance at or above the forty-five mile-per-hour speed limit of Route 521.
In the summer of 2005, plaintiff notified the Board of Adjustment that it had fulfilled the conditions of the 2002 variance, and it applied to the Township construction office for a building permit. The Township engineer, Ted Rodman, wrote to plaintiff that the improvements to the road and bridge required re-evaluation and renewal of the County Planning Board's approval of the driveway. The County Planning Board later notified plaintiff that the permit issued in 2002 was still valid despite the improvements. However, plaintiff also learned from Township officials that the 2002 variance was only effective for one year and that plaintiff would have to re-apply to the Board of Adjustment for a variance.
On June 8, 2006, plaintiff filed an application with the Board for a variance extension or, alternatively, a new variance. The Board held hearings on five dates from November 2006 through September 2007. It then voted to deny plaintiff's application because of concerns for safety of ingress and egress at the driveway and access for fire trucks. It adopted a resolution dated December 11, 2007, denying plaintiff's application for a variance.
On January 9, 2008, plaintiff filed a three-count complaint against the Board in the Law Division. The first two counts asserted actions in lieu of prerogative writs challenging the Board's denial of the planning variance. The third count alleged inverse condemnation of plaintiff's land in that the zoning regulations resulted in a taking of plaintiff's property without just compensation.
By opinion dated January 31, 2009, the Law Division remanded the matter to the Board for further explanation of its decision. The Board issued a revised resolution on March 10, 2009, expanding its findings and reasons for denying the variance. On May 21, 2009, the Law Division issued a written opinion concluding that "the evidence supported the Board's finding to deny the variance on the grounds that to grant the variance would create a traffic hazard." The court dismissed plaintiff's complaint in its entirety by order of the same date. Plaintiff filed a timely notice of appeal.
On appeal, plaintiff raises a myriad of procedural and substantive issues. We begin by restating the standards of review that apply to appeals from zoning decisions.
Zoning boards make quasi-judicial decisions to grant or deny applications within their jurisdiction. Willoughby v. Plan. Bd. of Deptford, 306 N.J. Super. 266, 273 (App. Div. 1997); Kotlarich v. Mayor of Ramsey, 51 N.J. Super. 520, 540-42 (App. Div. 1958). Review of a board's decision is permitted in the Superior Court in an action in lieu of prerogative writs under Rule 4:69, and the court's review is based solely on the record before the board. Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 289 (1965).
The determination of a zoning board is presumed to be valid. Id. at 285; Cell S. of N.J. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81 (2002). A court must not substitute its own judgment for that of the board unless there is a clear abuse of discretion. Ibid. The burden is on the challenging party to show that the board's decision was arbitrary, capricious, or unreasonable. New Brunswick Cellular v. Bor. of S. Plainfield Bd. of Adj., 160 N.J. 1, 14 (1999); Smart SMR of N.Y. v. Bor. of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1988); Kramer, supra, 45 N.J. at 296.
Appellate courts apply the same standards of review as the trial court. Bressman v. Gash, 131 N.J. 517, 529 (1993); D. Lobi Enters. v. Plan./Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009). They must also avoid substituting their judgment for that of a local board. Ibid.
This highly deferential standard of judicial review does not apply to purely legal questions affecting the zoning board's decision. In such circumstances, a presumption of correctness does not apply, and the court must determine for itself whether the law has been applied correctly. See Manalapan Realty v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993); Urban v. Plan. Bd. of Manasquan, 238 N.J. Super. 105, 111 (App. Div. 1990), modified, 124 N.J. 651 (1991). That is to say, our standard of review is plenary on questions of law raised by the appeal.
Plaintiff asserts that the variance approved in 2002 was still effective in 2005 when it applied for a building permit. Plaintiff argues that the three-year delay was not its fault but was caused by condition five of the Board's 2002 resolution and by the DOT's failure to act promptly in granting plaintiff its easement rights. Because plaintiff's argument requires interpretation of law and its application to uncontested facts, our standard of review is plenary.
Under Section 19-702E(5) of the Code of the Township of Blairstown, "All variances shall expire within one year from the date of the variance approval unless the owner shall have secured a construction permit and shall have commenced construction in conformity with the variance approval, including any conditions attached to the approval...." Plaintiff did not obtain a permit, commence construction, or meet the conditions attached to the approval within one year of August 13, 2002. It also failed to request an extension within that time pursuant to Section 19-702E(5)(b) of the Township Code.
Contrary to plaintiff's argument, its litigation with the DOT did not toll the effective time period of the variance. Plaintiff cites N.J.S.A. 40:55D-21 and -22a in support of its argument, but the tolling provisions of those statutes do not apply here because the delay in applying for a building permit was not caused by "a legal action instituted by any State agency, political subdivision or other party... or by a directive or order issued by any State agency, political subdivision or court of competent jurisdiction[,]" as provided in those statutes. Plaintiff's litigation against the State DOT was filed by plaintiff, not by the State.
Furthermore, the Board complied with the requirements of N.J.S.A. 40:55D-22b by making a decision in 2002 and imposing a condition that plaintiff obtain approval from other governmental agencies, namely, the Warren County Planning Board and the DOT. See Dowel Assocs. v. Harmony. Twp. Land Use Bd., 403 N.J. Super. 1, 25 n.5, 35-36 (App. Div.) (board should have granted conditional approval under N.J.S.A. 40:55D-22b subject to DEP approval), certif. denied, 197 N.J. 15 (2008). N.J.S.A. 40:55D-22b does not automatically extend the time period that a variance remains effective.
Because the 2002 conditional approval of the variance had expired by the time plaintiff sought a building permit in 2005, plaintiff was required to re-apply for a variance.
On the merits of its prerogative writs challenge, plaintiff argues that it demonstrated practical difficulty or unnecessary hardship and adequate access for emergency vehicles. Therefore, asserts plaintiff, the Board was required to grant its application for a planning variance under N.J.S.A. 40:55D-36. Our standard of review on this issue is whether the Board's 2007 denial of plaintiff's application was arbitrary, capricious, or unreasonable.
We agree that plaintiff demonstrated practical difficulty and hardship. Without a variance from the prohibition of N.J.S.A. 40:55D-35, plaintiff cannot develop the property. See Kaufmann v. Plan. Bd. of Warren Twp., 110 N.J. 551, 562 (1988) (inability to make use of property constitutes undue hardship); Davis Enters. v. Karpf, 105 N.J. 476, 493 (1987) (same).
Plaintiff also had proofs demonstrating access for emergency vehicles. It presented signed letters from the Blairstown Ambulance Corps and the Blairstown Hose Company #1 stating that they had inspected the proposed driveway entrance and found it adequate. In addition, Richard Cook, driving instructor for the fire department, and Thomas Bodolsky, plaintiff's engineering expert, testified that the town's largest fire truck could make the turn at a proposed widened entrance of the driveway with some additional pavement to accommodate the turn. The Board, however, was concerned that the widened pavement might come within ten feet of the boundary line of the adjacent property, contrary to sideyard requirements of the Township ordinance.
The Board found that ingress and egress would pose safety risks for a large fire truck entering the driveway and for general traffic on Route 521. The Board could appropriately consider traffic safety at the site of the development in declining to grant plaintiff's application. See Lionel's Appliance Center, Inc. v. Citta, 156 N.J. Super. 257, 268-69 (Law Div. 1978). In Dunkin' Donuts of N.J. v. Twp. of N. Brunswick Plan. Bd., 193 N.J. Super. 513, 515 (App. Div. 1984), we held that a planning board was without authority to deny a site plan application because of off-site traffic conditions. But we also said, "A planning board should consider off-site traffic flow and safety in reviewing proposals for vehicular ingress to and egress from a site...."*fn1 Ibid. (citing N.J.S.A. 40:55D-7 (definition of "site plan" includes "means of ingress and egress") and N.J.S.A. 40:55D-41b (authorizing municipalities to adopt site plan ordinances that include "[s]afe and efficient vehicular and pedestrian circulation")). The Board's denial was not due to general increase of traffic or congestion on the roadway but the safety conditions of ingress and egress at the proposed driveway.
The Board had discretion to evaluate the evidence presented and conclude that ingress and egress will create safety risks. Bodolsky testified for plaintiff that the sight distances of 380 to 430 feet from the end of the driveway to roadway traffic were adequate for safety. He acknowledged that at ten feet from the roadway, ".2 seconds of occlusion," or a blind spot thirty feet in length, occurs for a driver exiting the driveway. He testified that a small car or motorcycle traveling over the bridge would not be visible to a car exiting the driveway in that fraction of a second and for that distance. Nevertheless, Bodolsky concluded the "obstruction [is] not a safety concern" because there is "ample opportunity to [see] what's coming across the bridge."
Plaintiff contends the Board could not reject the conclusion of its expert without conflicting expert testimony. Plaintiff relies on N.Y. SMSA Ltd. v. Twp. of Mendham Zoning Bd. of Adj., 366 N.J. Super. 141 (App. Div.), aff'd, 181 N.J. 387 (2004), in which we held that a board's decision to deny a variance was arbitrary and capricious because all expert testimony supported the application and the only contrary evidence was lay testimony about effects on property values.
The circumstances here are not controlled by our holding in N.Y. SMSA. The Township engineer, Rodman, and Board members themselves disagreed with Bodolsky's opinion that exiting the driveway would be safe. Rodman stated that while the sight distances reported by Bodolsky were acceptable, he believed "there's a little more of a blind spot than 30 feet." Plaintiff argues that the Board could not rely on Rodman's testimony because he was not sworn under oath to testify, he was not qualified as an expert, and his testimony constituted a net opinion. The Law Division agreed that Rodman should have been sworn to testify if the Board intended to rely on his opinions as evidence supporting denial of the variance.
Municipal agencies are not subject to the same evidentiary standards as courts. See N.J.S.A. 40:55D-10. A municipal agency can properly consider expert testimony even though the witness was not qualified as an expert. Concerned Citizens of Princeton, Inc. v. Mayor and Council of Princeton, 370 N.J. Super. 429, 463 (App. Div.), certif. denied, 182 N.J. 139 (2004). However, testimony must be "taken under oath" and be subject to cross-examination. N.J.S.A. 40:55D-10d; Concerned Citizens, supra, 370 N.J. Super. at 463. As the Law Division ruled, Rodman's opinions were not properly before the Board as testimony taken under oath and subject to cross-examination.
We conclude, however, that exclusion of Rodman's unsworn opinion about traffic safety would not have affected the Board's decision and, therefore, its consideration was harmless. As the Law Division stated, the Board members themselves raised safety concerns based on their personal knowledge of the location of the driveway entrance and their articulated reasons for rejecting the opinion of plaintiff's expert.
Board members may consider their own personal knowledge of the property or impressions gained through site inspection. Osoria v. W.N.Y. Rent Control Bd., 410 N.J. Super. 437, 451 (App. Div. 2009); Baghdikian v. Bd. of Adj. of Ramsey, 247 N.J. Super. 45, 50 (App. Div. 1991). The only requirement is that Board members make an adequate record of the facts from personal knowledge or observation they are relying upon so that the parties have an opportunity to respond and present contrary evidence. Ibid. In this case, Board members made a full record of their personal knowledge of the site. Included among that knowledge were the earlier conditions that existed at the time of the 2002 granting of the variance and the need for cars to slow considerably at the bridge. Considering the present conditions, the Board noted "cars are coming across at 45 miles an hour or better" because of the changed configuration and widening of the road and bridge.
Also, Board member Lois Brod stated she went to the site and personally attempted to exit the driveway but could not see approaching vehicles on the bridge until the nose of her vehicle was in the roadway. Contrary to plaintiff's argument, it is preferable but not necessary that the parties have prior notice of a Board member's intent to visit the site for a personal inspection. See id. at 52. The purpose of prior notice is to give the parties adequate time to prepare a response to the Board member's observations or impressions. Ibid.
Partly as a result of their own knowledge and observations placed on the record, Board members concluded that Bodolsky's testimony was not reliable. See El Shaer v. Plan. Bd. of Lawrence, 249 N.J. Super. 323, 330 (App. Div.) (board can give little weight to an expert's opinion where it was not based on sufficient information), certif. denied, 127 N.J. 546 (1991).
Board members also noted that plaintiff's photographs of the sight lines showed natural obstructions and potential risks from passing traffic, and those photographs also contradicted Bodolsky's conclusion that ingress and egress would be safe. The Board noted that the sight lines were across other properties and plaintiff may not be able to control future obstructions. In addition, Board members were concerned that drivers traveling northbound on Route 521 might resort to making dangerous illegal u-turns in other private driveways to gain quicker access to plaintiff's property. Furthermore, testimony of the representative from the fire department was that a fire truck approaching northbound would make an otherwise unlawful left turn into the driveway and that a fire truck approaching southbound would have to veer into the northbound lane of traffic to turn right into the driveway. All of these factors relied upon by the Board were supported by the evidentiary record and could properly be considered in denying the variance.
"[T]he Board 'has the choice of accepting or rejecting the testimony of witnesses. Where reasonably made, such choice is conclusive on appeal.'" Kramer, supra, 45 N.J. at 288 (quoting Reinauer Realty Corp. v. Nucera, 59 N.J. Super. 189, 201 (App. Div.), certif. denied 32 N.J. 347 (1960)); accord Omnipoint Commun'n, Inc. v. Bd. of Adj. of Bedminster, 337 N.J. Super. 398, 418 (App. Div.), certif. denied, 169 N.J. 607 (2001).
We conclude, as did the Law Division, that the Board did not act arbitrarily, capriciously, or unreasonably in considering the evidence and the knowledge of Board members and in rejecting the conclusion of plaintiff's expert. In sum, on the record before it, the Board could reasonably deny plaintiff's application for a variance.
Next, plaintiff contends that the Board's vote on March 10, 2009, adopting the revised resolution after remand, was a nullity because ineligible Board members voted. Plaintiff argues that, pursuant to N.J.S.A. 40:55D-10.2, the members who were not present at the prior hearings should have certified that they reviewed the transcripts or recordings of the hearings.
Plaintiff did not raise this issue before the Law Division, and it was not addressed in the trial court's decision.*fn2
"[A]ppellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available[,]" unless such issues are matters of public concern. Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In this case, we will address the issue because we cannot tell from the record whether plaintiff was given the opportunity to address the issue before the Law Division. Our standard of review is plenary because we must interpret and apply the law to established facts.
At the March 10, 2009 meeting, two board members who had been present at the previous hearings, Lois Brod and Joe DiGrazia, voted to approve the revised resolution. Three members who had not been present at the prior hearings also voted to approve the revised resolution, and two other members abstained.
N.J.S.A. 40:55D-10g provides that a "memorializing resolution" shall be adopted to reflect the Board's decision. The statute also states:
Only the members of the municipal agency who voted for the action taken may vote on the memorializing resolution, and the vote of a majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution. If only one member who voted for the action attends the meeting at which the resolution is presented for adoption, the resolution may be adopted upon the vote of that member.
Under this statute, only Brod and DiGrazia should have voted on the revised resolution because they were the only two members who had voted in 2007 to deny plaintiff's application. Other Board members should not have voted. But the votes of Brod and DiGrazia were sufficient to adopt the revised resolution.
Plaintiff also contends that the vote was ineffectual because a quorum was not present. N.J.S.A. 40:55D-9a states that "[n]o action shall be taken at any meeting without a quorum being present." "'Quorum' means the majority of the full authorized membership of a municipal agency." N.J.S.A. 40:55D-6. The Board is made up of seven members, see Code of the Township of Blairstown § 19-701, and seven members were present at the meeting of March 10, 2009. Furthermore, as stated, the vote of one member is sufficient to adopt a resolution under N.J.S.A. 40:55D-10g if that member was among those who in an earlier meeting voted to take the action addressed in the resolution. We conclude there was no deficiency in the vote on the revised resolution after remand.
Plaintiff raises the following additional arguments: (1) that its property now abuts a road within the meaning of N.J.S.A. 40:55D-35 because plaintiff has obtained an easement from the DOT, (2) that the Law Division applied the wrong standard to plaintiff's application for a planning variance because it mistakenly referred to a "use" variance at one point in its written opinion, (3) that the Law Division should have disregarded the Board's revised resolution after remand because it was untimely filed with the court, and (4) that there were numerous factual errors in the Board's revised resolution. We reject these arguments, and any other arguments not specifically listed or addressed in our opinion, as not warranting discussion in a written opinion. See R. 2:11-3(e)(1)(E).
In the third count of its complaint, plaintiff sought money damages claiming that the Board's denial of the variance results in inverse condemnation of plaintiff's property by the zoning regulations.
As defined by the United States Supreme Court, "[inverse] condemnation is a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency." United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 1130, 63 L.Ed. 2d 373, 377 (1980)) (quotation marks omitted); see also Raab v. Bor. of Avalon, 392 N.J. Super. 499, 509 (App. Div.), certif. denied, 192 N.J. 475 (2007). A plaintiff is entitled to compensation if it is "deprived of all or substantially all of the beneficial use of the totality of [the] property." Greenway Dev. Co. v. Bor. of Paramus, 163 N.J. 546, 553 (2000) (quoting Pinkowski v. Twp. of Montclair, 299 N.J. Super. 557, 575 (App. Div. 1997)).
In an otherwise well-reasoned decision, the Law Division did not address plaintiff's inverse condemnation claim. Therefore, we reverse dismissal of count three of plaintiff's complaint and remand to the Law Division for consideration of plaintiff's inverse condemnation claim. See Infinity Broadcasting Corp. v. N.J. Meadowlands Comm'n, 187 N.J. 212, 225-26 (2006).
We affirm the Law Division's dismissal of counts one and two of plaintiff's complaint, which alleged causes of action in lieu of prerogative writs challenging the Board's denial of a planning variance under N.J.S.A. 40:55D-36, or extension of the 2002 variance. We reverse and remand for further proceedings in the Law Division on count three of plaintiff's complaint alleging inverse condemnation.