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Ronald Bush and Tina Bush v. the Planning Board of the Township of Middletown

March 29, 2011

RONALD BUSH AND TINA BUSH, PLAINTIFFS-RESPONDENTS,
v.
THE PLANNING BOARD OF THE TOWNSHIP OF MIDDLETOWN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1970-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 22, 2010

Before Judges Fuentes, Gilroy and Ashrafi.

The Planning Board of the Township of Middletown ("Board") appeals from the order of the Law Division reversing its decision to deny an application for a minor subdivision filed by plaintiffs Ronald and Tina Bush. The Board argues that the trial court usurped its statutory role under the Municipal Land Use Law ("MLUL") by failing to give due deference to the Board's discretionary authority and ultimately substituting the court's judgment for that of the Board. We agree and reverse.

This case came before the Law Division by way of plaintiffs' action in lieu of prerogative writs filed under Rule 4:69-6(b)(3). We derive the following facts from the record developed before the Board at the public hearing conducted to consider plaintiffs' subdivision application.

I

Plaintiffs' property is located on Brook Avenue at the corner of Chestnut Avenue in the Hillside section of the Township of Middletown. The property is situated in the R-10 zone which requires: (1) a minimum lot size of 10,000 square feet for interior lots and 12,500 square feet for corner lots; and (2) a minimum front yard setback of 100 feet for interior lots and 110 feet for corner lots. The property is currently developed with a single-family home that fronts Brook Avenue. Except for two pre-existing minor setback deficiencies, the property as currently developed conforms to the local zoning plan and laws.*fn1

Plaintiffs submitted an application to the Board to subdivide the property into two lots in order to build a second single-family home. If approved, the subdivision would create two undersized lots requiring variances; the lot upon which the current house sits would consist of 9,249 square feet where 10,000 is required, and would have a deficient front yard setback of 61.66 feet where 100 is required. The proposed vacant lot would also require a zoning variance for front yard setback (83.34 feet provided as compared to 110 required).

Plaintiffs called only one witness - Andrew Janiw, a licensed professional planner. Janiw testified that the requested lot area and frontage variances could be granted under N.J.S.A. 40:55D-70c(2). According to Janiw, plaintiffs' property represented "a transitional area within the neighborhood" because "[p]roperties located generally to . . . the southern orientation of Brook Avenue tend to be on smaller lots, smaller frontages. As we go to the north of the property they tend to become larger." Thus, as compared to other undersized properties in the neighborhood, plaintiffs' property may be viewed as "oversized."

Janiw identified a number of properties that did not meet minimum bulk requirements in the R-10 zone. Based on this, Janiw opined that the proposed subdivision would create two lots that were well within the character of the neighborhood. The following excerpt from Janiw's testimony summarizes the central thesis of his presentation:

[T]here are a tremendous amount of non-conformities in the immediate vicinity of this lot. And what's being proposed is actually mimicked directly across Brook where you see three homes, one oriented onto Powell, as the corner of Brook and Powell adjacent to us would be. Then two homes oriented towards Brook. That's what's being proposed here in order to be consistent with the home orientation in the neighborhood.*fn2

The Board unanimously rejected plaintiffs' application; it explained its reasons in this memorializing resolution:

Mr. Janiw originally claimed that the variances would provide a planning benefit of more "air, light and open space." He later admitted that there would be more air, light and open space with one home on the property, rather than two. The Board rejects Mr. Janiw's original testimony, and finds that there is no such benefit. Indeed, ...


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