On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2582-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and J. N. Harris.
This is an appeal from the final judgment in an action in lieu of prerogative writs in which the Law Division affirmed the approval of a two-lot minor subdivision and several dimensional variances. We affirm.
In April 2007, defendant Magee Family Trust (Trust), through its sole member, E. Allen MacDuffie, purchased real property--a corner parcel--located at the intersection of George Road and Second Avenue in Toms River. The land at issue is located within that municipality's R-75 Residential Zone, and is comprised of contiguous lots 8 and 9 in block 1080.08. The lots had been merged since as early as February 2, 1965, when the then-owners conveyed the land as a single parcel to one of the Trust's predecessors-in-title. The combined property measures 100 feet along George Road and 120 feet along Second Avenue.
At the time of the Trust's acquisition, the land was subject to "Chapter 348, Land Use and Development Regulations, of the Code of the Township of Toms River, County of Ocean, New Jersey," specifically § 348-10.13, which governed the land uses and dimensional controls in the R-75 Residential Zone. Pertinent to this appeal, the minimum lot dimensions required an area of 7,500 square feet; width of seventy-five feet; and frontage of 100 feet on both bordering streets (because it was a corner lot). The merged lot itself conformed with all applicable zoning regulations, but it had been improved with a dwelling that was discordant with the required two-street front yard setbacks.*fn1
Thus, a nonconforming structure was located on the property, and was used for permitted residential purposes.*fn2 On February 15, 2008, the Trust filed an application with defendant Toms River Township Planning Board (Board) to obtain minor subdivision approval in order to divide the property into two undersized lots: lot 9.01, which would contain the nonconforming dwelling, and lot 8.01, which would include a newly constructed dwelling, to be built later. Each new lot's perimeter dimension would be fifty feet by 120 feet (comprising an area of only 6,000 square feet), and proposed lot 9.01 required--aside from the pre-existing front yard discordances--a newly-minted side yard setback variance. This dimensional variance was required because the existing dwelling encroached into the newly-created side yard of proposed lot 9.01. No additional dimensional variances were necessitated as a result of the location of the proposed new dwelling. The diagram below depicts the proposed subdivision:
At the first public hearing, the Trust called Ray Carpenter--a professional planner and engineer--to testify as an expert witness on its behalf. Carpenter's testimony indicated that almost ninety percent of the lots in the neighborhood were similar in size and dimension to the proposed subdivided lots, specifically measuring fifty feet by 120 feet in size: "[t]here's a total of 103 lots in those eight blocks, of which only [eleven] lots conform to the R-75 requirements." However, depending upon house placement on or common ownership of the property, "a total of [twenty-two] lots out of a total of 103 lots" were compliant with the R-75 zoning requirements. He further noted that "the predominance of the area, as you will see, all the houses, or all the lots, are predominately occupied by one house on a [fifty foot] by 120 foot lot." Carpenter's ultimate opinion was that "what we're proposing is appropriate development for this neighborhood and that meets part of the conditions of the [(c)(2)] variance as far as the Municipal Land Use Law is concerned."
After this hearing, and before the second hearing on July 23, 2008, Board members made several site visits to the property in question. One Board member noted that the proposed subdivision did not render the real property any different from the majority of the surrounding parcels in the area. As the Board also considered Toms River's Master Plan, the Board's professional planner noted that "there are single-family residential districts where the zoning does not appear to be in accord with the character of development in the district . . . there is a disparity and . . . when time is available . . . [we will] conform [the] zoning to the character of the district." By a vote of four to two, the Board granted the subdivision application and related variances.
On August 6, 2008, the Board memorialized this determination in a written resolution. There, the Board explained its reasoning why it approved the subdivision and variances, specifically determining:
The board finds that the shape of the property warrants the granting of the variance.
[T]he positive criteria has been met when weighed against the negative criteria for a [(c)(2)] variance. The majority of the lots in the neighborhood had widths no greater than 50' as proposed by the developer.
[T]his application can be granted without substantial negative impact to the public good, the neighborhood and the zone ...