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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

JANICE CERRA, THOMAS AND JOANN CAMPBELL, JOAN BISCHOFF, MICHAEL AND CHRISTY LEONARD, TODD SCHAFFAER AND ERIN MILLS, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF FRANKFORD LAND USE BOARD AND MATTHEW SARGENT, DEFENDANTS-RESPONDENTS.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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