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Janice Cerra, Thomas and Joann Campbell, Joan Bischoff, Michael and v. Township of Frankford Land Use Board and Matthew Sargent


March 22, 2012


On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-390-08.

Per curiam.


Argued November 1, 2011 -

Before Judges Carchman, Fisher and Baxter.

This is an appeal by plaintiffs Janice Cerra, Thomas Campbell, Joann Campbell, Joan Bischoff, Michael Leonard, Christy Leonard, Todd Schaffaer and Erin Mills (collectively plaintiffs) from an order of the Law Division affirming the decision of defendant Township of Frankford Land Use Board (the Board) to grant defendant Matthew Sargent a variance allowing him to construct a single-family dwelling on his property.

Plaintiffs raise eighteen points on appeal, challenging the action of the Board as well as the order entered by Judge B. Theodore Bozonelis. We conclude that the issues raised on appeal are without merit, and we affirm substantially for the reasons set forth in the judge's thorough and thoughtful oral opinion of August 12, 2010.

We briefly set forth the facts adduced from the record of proceedings before the Board as well as the Law Division. Defendant Sargent is the owner of property identified as Block 130, Lot 4*fn1 on Upper North Shore Road, Frankford Township, SusseX County (the property). The property consists of .356 of an acre, and is located in the Agricultural/Residential zone (AR Zone).*fn2 Sargent purchased the property in 2007 from its previous owner, Arthur Lupine. At the time of purchase, the property was undeveloped, but a septic system had been installed in the late 1980s.

The property is bordered to the south by Sussex County Road 636; to the north by Fairview Avenue, a private undeveloped road; to the east by Pinecone Road, another private undeveloped road; and to the west by Cerra's property. The property is accessed along Pinecone Road.*fn3 The property is severely sloped from north to south, with the proposed dwelling to be located in the northern portion of the property.

In 1992, the prior owner obtained, but never acted on, a variance (the 1992 Resolution) which allowed the owner to build a single-family dwelling. The variance contained, among other things, the following conditions: 1) Pinecone Road had to be moved fifteen feet east in order to allow cars to continue in the proper lanes when turning west onto Upper North Shore Road; 2) the bank/hillside in front of the applicant's lot had to be cut back ten feet; 3) Pinecone Road had to be paved; and 4) all improvements were to be installed at applicant's expense.

In 2007, Sargent applied to Frankford Township for a permit to build a residential dwelling on the property but was rejected because the proposed setback was insufficient, the lot was undersized, the property could only be accessed via private roads, and the 1992 Resolution had expired.*fn4

Thereafter, Sargent applied for relief from the Board seeking multiple variances to allow construction of a single- family dwelling. At the hearing on the variance application, Harold Pellow, the township engineer, stated that there had been no changes to the roadway since the 1992 Resolution and that the conditions to that resolution should be included in the approval of Sargent's application. Plaintiffs explained that their interests were two-fold. First, Cerra, Mr.*fn5 Campbell, Mr. Leonard and Schaffaer all expressed concern that another well in the area would cause the water level of their own wells to drop and noted that they already suffered from low water pressure. Cerra also noted that she recently had a new septic system put in since Sargent's had been installed in 1993, and that her new system was closer to Lot 4 than was depicted on the site plan. Second, the plaintiffs complained of the driving conditions on Pinecone Road. Cerra and Mr. Campbell complained that Pinecone Road was narrow, and as a result, had experienced several near- accidents. Bischoff also observed that Pinecone and Fairview Roads were dangerous.

On May 28, 2008, the Board adopted a Resolution granting Sargent's variance request subject to essentially the same conditions as those imposed by the 1992 Resolution. The Board noted that there would "be no substantial detriment to the zone plan or scheme nor to the public good" by granting the variance because "the road improvements that this applicant must provide will benefit all in the area."

Plaintiffs then filed a complaint in lieu of prerogative writ challenging the Board's decision as arbitrary and capricious. At the trial, Judge Bozonelis remanded the issue to the Board for clarification of three conditions, namely that: 1) Sargent was "bound to comply with the representations made to the Board by [Sargent and his witnesses] at the public hearing"; 2) the variance generally incorporated the 1992 Resolution; and 3) Sargent would be responsible for maintaining the roads.

The judge explained:

The objectors here are surrounding property owners . . . . The main . . . issue regard[s] the roadway ownership of [Pinecone] Road. . . . [T]he board really did not adequately look at the excavation of the hillside to be done[] [and its] impact on the steep slopes . . . , and more importantly, the drainage issues[.] . . .

[T]hose are issues that do go to one of the negative criteria in terms of . . . detrimental impact to . . . the neighborhood[.]

[T]he board . . . recogniz[ed] that this is a lot that's sitting there, [and a] house was previously approved on the lot back in 1992 . . . . [and that] despite its problems in terms of its sloping nature and the like, . . . it is a lot that should be allowed to be developed[,] and I don't think the board's overall principal decision in that regard is at fault.

[However,] the board [should] have considered and looked at this [request] a little bit closer with respect to this road improvement issue and drainage issues in . . . regard to where septic seepage pits would be with respect to the property, . . . [as well as] the septic and the well considering the very undersized lot that we have here and the absence of any contiguous non-constrained land. . . .

[T]hey should have done a little bit more and I think they need to clarify the conditions in this respect and take a look at the actual drainage that's being proposed in more detail, take a look at the size of the house that's being proposed here[,] [and] [t]ake a look at in greater detail the excavation of the roadway[.]

So I'm remanding it to the board for the board to make those additional findings and re-vote on this application with those additional requirements to be taken into consideration.

On remand, the Board convened, at which time the excavation of Pinecone Road was raised as an issue. The Board permitted both sides to "submit any testimony concerning how the road should be dealt with." Ultimately, the Board approved the application and adopted a memorandum of its decision on October 21, 2009. Among other things, the Board determined not to require Sargent to perform any improvements to the road. Plaintiffs again challenged the approval through an amended complaint in lieu of prerogative writ. Judge Bozonelis adopted his earlier findings of fact and conclusions of law and upheld the Board's decision. This appeal followed.

As we have noted, on appeal, plaintiffs raise eighteen discrete points. Before addressing the issues raised, we set forth our standard of review.

Public bodies, such as municipal zoning boards of adjustment, are allowed wide latitude in exercising their delegated discretion because of their particular knowledge of local conditions. Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005). The scope of judicial review is to determine whether a zoning board of adjustment could reasonably have reached its decision on the record before it, not whether a better decision could have been made by the board. Ibid. A reviewing court is not to substitute its own judgment for that of the board. Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004). Assuming an adequate basis existed in the record for the zoning board's conclusions, deference to its judgment is generally appropriate. Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58 (1999).

A trial court's role is to determine whether the zoning board's decision was "arbitrary, capricious, or in manifest abuse of its discretionary authority." Jock, supra, 184 N.J. at 597. However, the deference accorded to the zoning board's judgments is not limitless, and determinations of law are subject to de novo review by a trial court. Fallone Props., L.L.C., supra, 369 N.J. Super. at 561.

We apply the same standard of review as the trial court. N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004) "[T]he appellate court will give substantial deference to findings of fact, and will overturn discretionary rulings only if arbitrary and capricious." Cox and Koenig, New Jersey Zoning and Land Use Administration § 33-4 (GANN 2011). Special deference is not shown to the trial court's interpretation of the law and the legal consequences that flow from established facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

As an initial matter, Mr. Campbell claims that he is the owner of Lot 7.01, and that this issue should have been resolved before the Board granted relief. Pellow testified at the Board's hearings that, according to a title search, Mr. Campbell was the owner of Lot 7.01, which Pinecone Road crosses. The trial judge concluded that while there may be issues of constructive easements with respect to Lot 7.01, these issues were not before the Board and should be resolved in another forum. We agree.

We note, as did the trial judge, that Lot 7.01 has been used as an access road for over twenty years. The judge concluded that "[q]uestions of title, in terms of easements over this particular lot[] [and] whether or not the owner of the lot could prevent other residences from utilizing [Pinecone] Road going over this lot[,] are not questions for the Board." He further determined that if Campbell wanted to preclude Sargent from using the access on Lot 7.01, that, too, would have to be resolved elsewhere. We observe that such an action may well implicate the rights of others but we leave that issue for another day.*fn6

The significant issue raised on appeal is whether the Board's approval of Sargent's variance request, and the trial judge's subsequent upholding of that decision, were arbitrary, capricious or unreasonable. We conclude that they were not. As noted above, the approval here originally incorporated the conditions requiring road improvements contained in the 1992 Resolution, but removed those conditions after the trial judge remanded for clarification by the Board and the Board held additional hearings on the matter. In deleting the conditions, the Board concluded that the improvements to the road were not necessary because, although it was difficult, emergency vehicles could service the area, and there were other homes in the area with variances. The trial judge found that the Board heard substantial testimony and thoroughly considered the granting of this planning variance. As the judge explained:

There is considerable testimony from [Charles Scott] Lyon, the expert for Sargent, . . . before the Board with respect to . . . the paving of [Pinecone] Road[.]

So we come after this considerable colloquy as to . . . whether or not it is necessary to do anything to this road in terms of problems with drainage and problems of the grade that it would cause, since there were already three houses there[.]

[T]his is the last lot in the area.

[T]he Board recogniz[ed] that emergency vehicles are able to get up and down. How did they recognize that? They recognized that through testimony of the [o]bjectors and they recognized that through history. That is[,] that three other houses are there and that in the past vehicles of considerable size [went] up that road, [such as] the Town plows it in the winter.

Mr. Lyon and Mr. Pellow adequately dealt with that particular issue and there was . . . adequate testimony concerning access and the circumstances of this particular property and the ability of emergency vehicles to service the area with difficulty[.]

. . . . The only real question is [whether], by virtue of the construction on this hill, the steepness or whatever, [granting the variance is] going to really exacerbate the problems for these other neighbors . . . . And the answer, through Mr. Pellow and Mr. Lyon, is [that] it will not. . . .

The judge's view was correct and was supported by substantial evidence in the record.

Plaintiffs also argue that the Board considered neither the criteria for granting the variance, nor several other issues regarding the unique nature of this area, such as its water supply and the purpose of the AR Zone in which the area is located.

"No variance or other relief may be granted . . . without a showing that such variance . . . can be granted without substantial detriment to the public good and will not impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70. When determining whether to award a variance, a board's resolution must include necessary administrative findings. Smith v. Fair Haven Zoning Bd., 335 N.J. Super. 111, 123 (App. Div. 2000). In these findings, the Board must address findings of fact as to both the positive and the negative criteria. House of Fire Christian Church v. Zoning Bd. of Adjustment of Clifton, 379 N.J. Super. 526, 534-35 (App. Div. 2005).

Contrary to plaintiffs' claims, the Board thoroughly considered the positive and negative criteria and concluded that the variance could be granted without substantial detriment.

With respect to its initial resolution, the Board stated:

As referred to in the previous 1992 Resolution, considering the existing premises in the area, existing conditions and the fact that many of the residences and lots are of similar size to the applicant's, the negative criteria have . . . been satisfied. There will be no substantial detriment to the zone plan or scheme nor to the public good. While certain neighbors have indicated the public good will not [be] served, if anything the Board finds that the road improvements that this applicant must provide will benefit all in the area. . . .

Then, after it decided to eliminate the road improvements,

the Board concluded:

This Board finds that the most appropriate decision is not to require the applicant to pave or improve the road either along Pinecone Road or that portion of Lot 7.01 which ownership is in dispute for the following reasons:

1. The existing road, while admittedly not completely safe and can never be made completely safe according to current standards, serves the existing three residences. One more residence with a trip generation of ten trips per day will not qualitatively or quantitatively affect the current situation.

4. While expert engineering testimony indicated that the additional drainage or runoff would be collected and directed to the drain in the County right-of-way, the additional volume could affect property owner Leonard whose property is to the south of Upper North Shore Road.

The impact of Sargent's septic system and well on the environment and other properties will be minimal if any. . . .

Plaintiffs also argue that the Board's "failure to show a detention basin at the termination of the ditch as well as leaving it to the engineer's discretion" was "directly contrary to the trial [c]court's decision to remand the matter."

Plaintiff further argues that the court "never ruled on the lack of a shown seepage pit, or the non-consideration of the unchecked drainage onto the County Road . . . . [or] on [the Board's] failure to comply with the remand order as to this issue." Defendants counter that at the remand hearings, specifically the September 2009 hearing, "the Board openly deliberated over removing the condition as to road improvements which related to drainage."

On remand, the Board considered the drainage issue twice. Prior to the decision to not include the road improvements, the Board noted the drainage problem:

MR. CLARK: . . . . Mr. Leonard, one of the Objectors, has testified that there is drain water . . . going into the drainage thing there and then going across to his property and then just ending up dumped on his property. That is a nuisance. Granted it's a pre-existing problem and to continue it and to make it worse would be a substantial detriment to his property.

In addition there is also a problem too, as the [o]bjectors noted, in terms of some of the runoff is going out into the country road. And during the winter time when it freezes, it creates a dangerous condition.

MR. CLARK: That's a problem[.] [However,] . . . we don't have any authority over that issue. The County really dictates how that is going to be dealt with.

Then, after the determination that the road improvements

would not be included, the Board noted:

MR. CLARK: Well, you might have a drainage issue.

UNIDENTIFIED: Well, they would look for flow and volume on drainage. I mean if there's no change . . . .

MR. CLARK: If there's no change and it's all on the same lot, I guess that there may not be any. . . . The County may not do anything other than a . . . courtesy review.

MR. CLARK: So that would be my recommendation on that part. The other issue is about drainage and it's a construction on the site, not counting the road, it should be addressed. Is the drainage addressed, Harold . . . .

MR. PELLOW: They show on this plan, they do show one seepage pit. . .

MR. CLARK: Would any other drainage be considered or necessary if there were no improvements on the road?

MR. PELLOW: No. Back in 2008 I told them to show the existing ditch discharges on their property and how it goes [downhill] and runs off in their property, below the septic. It doesn't go through the septic system.

MR. CLARK: Right.

MR. PELLOW: And it's been shown on the map, nothing is being changed. It's running there now and it's going to run there when they're done.

MR. CLARK: Okay. So the drainage improvement would be just the seepage pit?

MR. PELLOW: They show a seepage pit.

Finally, right before voting on the decision not to include

road improvements, the Board noted:

MR. CLARK: . . . . And no additional - -you've addressed other issues such as drainage, - - the way it's shown. Any others?

MR. PELLOW: Well, they'll have the re-drain into the seepage pit.

MR. CLARK: Right.

MR. PELLOW: That will take care of the runoff.

MR. CLARK: Right. That's . . . all I have. So the . . . motion should be on the remand that the conditions of the planning variance and according to the Court's instruction it will go something like this, that there would be no road improvement . . . . The drainage as shown on site would be done.

And that unless the Board members see any additional drainage or issues concerning either the well or the septic system, . . . that's all that would be required.

In affirming the Board's decision on remand, the trial judge addressed the decision not to require the road improvements and its effect on the drainage issues.

[W]e have the fact that Mr. Pellow is basically saying that . . . if you leave the road the same . . . . [i]t's not going to be impacted significantly by the construction. The drainage is going to continue the way it was before, it's not going to be exacerbated. . . .

And we heard from Mr. Lyon earlier, in terms of drainage, roof drainage[,] . . . the seepage pit . . . and the discharge areas[,] that if anything, it will improve it rather than make it worse. . . .

So I think what the Board did here on remand is listen to all of the testimony, considerable testimony of Mr. Lyon addressing what the Court wanted, the drainage issues, in terms of the paved road . . and determine[] in the end, practically speaking, we can eliminate drainage problems in terms of the excavation of the road because we're just not going to require the road to be done. There's just one residence here, we don't need it to be done[.]

. . . . And the [e]ffect on the road, now that it's not going to be excavated, is not going to cause any further drainage problems in that regard. That's essentially what the Board is saying.

This is a case where . . . the Board heard extensive testimony as to what would happen if the road was paved, what problems does it cause in terms of grading, site distance and the like, if it is paved, in terms of drainage, and heard testimony with respect to the septic system and heard testimony with respect to the drainage caused by the roof. . . . [a]nd dealt with the issues on remand.

So on remand, the Court is satisfied that the issues have been addressed by the Board, their decision is not arbitrary or capricious[.]

Neither of these decisions were arbitrary or capricious. Here, the Board thoroughly considered the drainage consequences of exscinding the road improvements. The Board determined that the road had pre-existing drainage problems that would not be exacerbated by the addition of Sargent's home, and therefore decided not to require the road improvements. The trial court then thoroughly considered the Board's decision and found that the Board considered all of the issues it was required to address on remand.

Plaintiffs further argue that "[n]either the Board nor the [c]court addressed the contested issue of Cerra's septic system." Specifically, plaintiffs contend that "[n]o consideration was given to the negative criteria, including the possible effect of the septic system on Pinecone and [the Campbells'] Lot as noted in Pellow's 1990 testimony, or the impact of unimpeded drainage adjacent to a steep slope and County Road." Defendants respond by noting that permitting septic systems and wells is not within the Board's jurisdiction, and therefore it is appropriate that the Board made its decision subject to the Board of Health's approval.

In ordering the remand, the trial judge explained that the Board should take a closer look at the well issue. On remand, the Board heard testimony from plaintiff's expert:

Q [MS. CUNNINGHAM:] Can you advise whether or not there's any impact of the septic system . . . on the environment?

A [MR. LYON:] No adverse affect, again, other than what is allowed under the State code. It does comply with all of the State code requirements.

Q In your professional opinion, is there any impact from Mr. Sargent's existing septic system on . . . all of . . .

[p]laintiffs' properties that surround Mr. Sargent's property?

A No it's negligible.

Q Does Mr. Sargent have to do anything else with his septic to comply with the Township of Frankford?

A Yes. He doesn't have to do anything to comply with the State or the County Health Department, but Frankford does have an ordinance requiring a minimum 1,500 gallon dual chamber tank. So Mr. Sargent can, at his option, either install another 1,000 gallon tank upstream from the one that's existing in the ground now, or he can remove the existing one and put in a 1,500 gallon dual chamber tank. . . . Either one would meet the requirements. . . .

Q In your professional opinion, . . . .

[i]f he chose the 1,500 dual chamber option, would that have any impact on the environment?

A The only impact that would have is it would the impact on the environment [sic], because again there's a second chamber to remove another -- whatever solids make it through the first chamber, so it would extend the life of the disposal field, which is . . . the idea behind . . . that Frankford ordinance.

Q Using that same 1,500 gallon dual chamber, would it have any impact, in your professional opinion, on the [p]laintiffs' properties that surround Mr. Sargent's property?

A No, no adverse affect. It would actually probably improve, because it's . . . probably better than the existing systems in the area, because I would assume that they have 1,000 gallon tanks and no dual chamber . . . .

Q And if he were to find and utilize an additional 1,000 gallon tank . . . would it have an impact on the [p]laintiffs' property?

A Similar to before, it would . . . improve . . . . So the net affect would be no adverse affect, probably a benefit.

In reviewing the Board's consideration on remand, the court stated:

So in terms of the septic system, its effect on other properties, that was dealt with at length [by the Board].

[T]hey had the testimony of Mr. Lyon with respect to no change in the environment as a result of the septic system. . . . And they had no testimony to the contrary from any other expert in that respect.

The Board knew that any septic system for a three bedroom house versus a two bedroom house would have to be approved by the Board of Health. It's a condition, it's a requirement in that regard. So that none of those tells this [c]court that their decision was arbitrary.

Neither the Board's decision nor the trial judge's decision was arbitrary or capricious. The Board and the court thoroughly examined the issue of Sargent's septic tank. There was expert testimony indicating that Sargent's septic system would have no impact on the environment or his neighbors. Plaintiffs did not present their own expert testimony. The Board and the court were not arbitrary and capricious in approving Sargent's septic tank, subject to the Board of Health and Frankford Township's requirements.

Plaintiffs also argue that Sargent's well "never received much consideration in this matter." Sargent asserts that his expert, Lyon, "testified at length and was subject to cross- examination as to the issues relating to the . . . well." Lyon testified that Sargent's well would not impact the environment "other than it[']s going to pull some water out of the ground for drinking," which would have "negligible" impact. Lyons further testified that the well is "compliant with all the requirements."

The Board analyzed this testimony and concluded:

First with respect to the well. The well . . . meets all of the regulations that are required to build a well. If a waiver is needed for a setback, the waiver will be applied for. They are routinely granted. There is no suggestion that one more well in this neighborhood is going to have a negative impact on anybody else's well.

The trial judge properly acknowledged that the Board considered the well issue and that the location of the well was permitted if it had a casing.

Finally, we have carefully reviewed plaintiffs' additional arguments, including but not limited to the issues of notice, conflict of interest, ultra vires, res judicata, and "ignoring the county's directions," as well as general claims of arbitrary and capricious conduct. We conclude that the arguments are without merit and do not require additional commentary. R. 2:11-3(e)(1)(E).


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