May 16, 2012
CRAIG LANGE AND CATHLEEN CRAWFORD, PLAINTIFFS-APPELLANTS,
PLANNING BOARD OF THE TOWNSHIP OF FRANKLIN, FRED SCHIAVONE AND ROBERTA SCHIAVONE, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1583-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 27, 2012
Before Judges Espinosa and Guadagno.
Plaintiffs Craig Lange and Cathleen Crawford appeal from the June 27, 2011 order of the Law Division dismissing their complaint in lieu of prerogative writs and affirming the decision rendered by defendant Franklin Township Planning Board. We affirm.
The facts are undisputed. Plaintiffs are the owners of a home in Franklin Township situated on a 13.82-acre lot, fronting on Tuckahoe Road. Lange and Crawford reside in the home and access their property from Tuckahoe Road, where they have 161.18 feet of frontage.
Defendants Fred and Roberta Schiavone own and reside in a home on a nearby parcel of 19.17 acres with 330 feet of frontage on Dutch Mill Road. The parcel extends back approximately 2200 feet from Dutch Mill Road. Approximately 1232 feet of the Schiavones' easterly property line adjoins the entire westerly border of plaintiffs' lot.
In July, 2008, the Schiavones sought preliminary approval for a major subdivision to create four building lots in addition to their home. Their application was compliant with the Pinelands Rural Residential Zoning district, which mandates that every lot is at least 3.4 acres. Their proposal required the construction of an access road from Dutch Mill Road that would run parallel to the westerly border of plaintiffs' property, terminating with a cul-de-sac near plaintiffs' home.
The only variance requested by the Schiavones related to the location of their existing residence and the proposed access road. They submitted a Pinelands Certificate of Filing and completed a Phase One Environmental Assessment.
The Franklin Township Planning Board*fn1 considered the Schiavones' application on November 18, 2008, at a public hearing. Crawford appeared at the hearing and testified that she was concerned with traffic on the access road and the effect of proposed street lights near her home. She suggested a "buffer" between her property line and the access road, but was clear that she did not object to the proposed subdivision and development:
I don't want to stop it [the subdivision].
I just want to make sure that I preserve my property and the reason I bought it.
On December 16, 2008, the Board adopted a resolution granting preliminary approval of the Schiavones' application and required the final plan to provide for a buffer*fn2 between the access road and plaintiffs' property line:
The applicants, as part of the final plan, shall provide an additional buffer between the newly created roadway and the property owner to the east and shall plant white pines in the buffer area.
On February 17, 2009, the Board met and heard testimony from the Schiavones' engineer, Stephen Filippone, who explained that the proposal had been revised to accommodate Crawford's concerns by substituting more "traditional" street lights and including the buffer strip:
The Board had given us a reduction on the 200 foot agricultural buffer to 150 feet recognizing that it allowed the [proposed] houses to maybe shift away from [Crawford's] property. It gave us the ability to move the road a little further from [Crawford]. She was, you know, requesting that a street not be built in her backyard, and we think we've done so by shifting the road. We've provided a buffer not to be cleared. I've also added evergreen trees within the buffer for the cul-de-sac, and you know, I thought I was amending the plan to comply with the neighbor.
The engineer for the Board, Gary White, then noted that Crawford had retained counsel who had sent a letter to the Board withdrawing her request for a buffer.
Crawford testified that she was "comfortable" with the new lighting proposal and had been under the impression that her home was much closer to the development than it actually was.*fn3 However, she opposed the buffer because she felt it would limit her ability to access the new road in the event she wanted to subdivide her property.
On February 27, 2009, the Schiavones' application, including a 10' wide buffer strip, was granted final approval. The Board also waived compliance with a local ordinance requiring reserve strips to be conveyed to the Township (the conveyance requirement). That ordinance provides:
No subdivision showing reserve strips controlling access to streets shall be approved except where control and disposal of land comprising such strips has been conveyed to the governing body under conditions approved by the Planning Board. [Franklin Twp., N.J., Code, art. V, § 253-50(14)(e)]
A resolution memorializing the final approval was adopted by the Board on March 17, 2009.
On April 14, 2009, plaintiffs filed an action in lieu of prerogative writs challenging the preliminary and final subdivision approvals. Although Crawford had advocated for the buffer strip during her initial appearance before the Board, plaintiffs argued that the Board lacked jurisdiction to authorize the buffer strip, as the preliminary application did not mention it, and it was not included in the Pubic Notice of the November 18, 2008 meeting. Plaintiffs also argued that the strip should not remain under the Schiavones' control but should be conveyed to Franklin Township, pursuant to the local ordinance.
On March 23, 2010, Judge Jean B. McMaster found an insufficient factual basis in the record as to three issues and remanded with specific directions that the Board make factual findings and articulate the rational basis as to the following:
1. why the reserve strip was not conveyed to the governing body in accordance with local ordinance 253-50(a)(14);
2. how was the determination made as to the width of the buffer strip and what factors were analyzed, reviewed and considered in making this decision; and
3. the Board was directed to acknowledge and review the opinion of the Board's Community Development Director, Patricia Knobloch, "regarding said reserve strip, its future ramifications as to serving a public purpose and the alleged violation of the Township road design standards ordinance."
An extensive remand hearing was held on July 20, 2010. The Board heard presentations from Filippone; Schiavones' attorney, Charles Iannuzzi; plaintiffs' attorney, Charles Fiore; Gary White; and Patricia Knobloch. On August 17, 2010, the Board adopted a resolution of findings and conclusions affirming their original approval of the reserve strip and the waiver of the conveyance requirement.
On September 15, 2010, plaintiffs appealed the Board's action by filing a second complaint in lieu of prerogative writs, alleging: (1) the waivers and variances granted were improper; (2) the record does not provide a sufficient basis for granting the waiver/variance; and (3) the inclusion of the reserve strip between plaintiffs' property and the newly created right of way leaves plaintiffs' property without access to the proposed public right of way in contravention of Franklin Township ordinance 253-50A(14)(e).
On June 16, 2011, a hearing was held before Judge Georgia M. Curio, who found that the Board's actions adequately addressed the issues in the remand hearing; there was sufficient evidence in the record to support the Board's conclusion; and there was no reason to disturb that decision. An order was entered on June 27, 2011 affirming the Board's decision on remand and dismissing plaintiffs' complaint.
Plaintiffs then filed this present appeal, raising the following issues:
THE COURT ERRED IN FINDING THAT THE "RESERVE STRIP" MET THE STANDARDS SET FORTH IN N.J.S.A. 40:55D-70(c)(1) OR (2).
THE COURT ERRED IN FINDING THAT THE DEFENDANT PLANNING BOARD'S RECORD SUFFICIENTLY SUPPORTED GRANTING THE WAIVERS/VARIANCES TO DEFENDANTS SCHIAVONE.
THE COURT ERRED IN AFFIRMING THE DEFENDANT'S DECISION TO GRANT THE VARIANCE/WAIVER FOR THE "RESERVE STRIP" TO BE OWNED AND CONTROLLED BY A PRIVATE PROPERTY OWNER IN CONTRAVENTION OF THE TOWNSHIP'S ORDINANCE §253-50(a)(14)(E).
THE COURT ERRED IN FINDING THAT THE DEFENDANT TOWNSHIP OF FRANKLIN PLANNING BOARD'S DECISION TO GRANT THE "RESERVE STRIP" WAS NOT ARBITRARY, CAPRICIOUS, AND UNREASONABLE.
Like the trial court, we must review a municipal board's action by giving deference to its decision and affirming it unless it is arbitrary, capricious or unreasonable. Cohen v. Bd. of Adj., Borough of Rumson, 396 N.J. Super. 608, 614-15 (App. Div. 2007). The question is whether "the board could reasonably have reached its decision on the record." Id. at 615 (quoting Jock v. Zoning Bd. of Adj., Twp. of Wall, 184 N.J. 562, 597 (2005)). We do not substitute our judgment for that of the municipal board. Ibid.
We agree with Judge Curio that the only issue before her was "to determine the adequacy of the remand hearing and whether the specific items set forth in the March 23, 2010 remand order were addressed and addressed satisfactorily."
The proper scope of our review is not to suggest a decision that may be better than the one made by the Board, but to determine whether the Board could reasonably have reached its decision on the record. Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (App. Div. 1965); Kessler v. Bowker, 174 N.J.Super. 478, 486 (App. Div. 1979), certif. denied, 85 N.J. 99 (1980). The Board's decision here is entitled to a presumption of validity, and the plaintiffs have the burden to prove otherwise. See Pullen v. Twp. of S. Plainfield, 291 N.J. Super. 303, 312 (App. Div. 1995). The rationale is that local officials have familiarity with the community and the needs of its citizens. Kramer, supra, 45 N.J. at 296.
The Reserve Strip and the MLUL
Plaintiffs argue the findings of the Board regarding the reserve strip are insufficient and inconsistent with subsections
(c)(1) and (c)(2) of N.J.S.A. 40:55D-70, a provision of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -136.
They cite Morris County Fair Housing Council v. Boonton, 230 N.J. Super. 345 (App. Div. 1989), as authority that a buffer requirement is a zoning standard governed by N.J.S.A. 40:55D-70.
Their reliance on Morris for this proposition is misplaced. In Morris, we affirmed the judgment of the Law Division in setting aside a planning board's denial of site plan approval for a housing complex on the grounds that the board was arbitrary in failing to grant a waiver from a buffer requirement. We held that "[a] planning board cannot deny an application for site plan approval based on architectural considerations if the application meets the standards set forth in the site plan ordinance." 230 N.J. Super. at 357. Morris involved a zoning ordinance requiring a 50-foot landscaped buffer between buildings and neighboring property lines. We concluded that the buffer requirement was a zoning standard governed by N.J.S.A. 40:55D-70. Id. at 354.
Here, the local ordinance did not require a buffer. Ironically, the buffer issue only surfaced when Crawford suggested to the Board on November 18, 2008 that one was needed:
I bought that for farmland, and I wanted a buffer, and I don't want streetlights and roads in my backyard 'cause that's what I moved from.
The Board's inclusion of a buffer requirement as a condition for final approval of the subdivision was not required by ordinance, but was done solely to accommodate Crawford's initial concerns. After plaintiffs retained counsel and withdrew their request for the buffer strip, the Board decided to retain the strip in order to prevent a through street between Dutch Mill and Tuckahoe Roads. The Board found that "the ordinance discouraging through traffic for minor streets is of paramount importance in this application." Judge Curio properly concluded that there was sufficient evidence in the record to support the actions of the Board.
Conveyance of the Reserve Strip
The Board noted a conflict between two subsections of the Franklin Township Land Development ordinance, section 253-50, entitled "Development Plan and Design Standards." Section 253-50A(b), requires minor streets to be designed to discourage through traffic, while Section 253-50A(14)(e), requires reserve strips to be conveyed to the governing body. The Board resolved this conflict by concluding that the Township was not interested in accepting the conveyance of any buffer strips:
The present financial conditions do not allow the Township to retain the personnel necessary for maintenance of such areas. It is preferred that such areas be maintained by the property owner which will be established by deed restriction in this instance.
At oral argument before Judge Curio, plaintiffs conceded that they were not opposing the inclusion of the buffer strip, only the waiver by the Township of the conveyance requirement:
[I]f the buffer is necessary and it probably is necessary and we're not here to undo the buffer, there's no basis, whatsoever, for it being in the names of the plaintiffs.
Their concern is that the buffer will make their access to the newly constructed road more difficult if they decide to develop their property in the future.
As to the waiver, Judge Curio noted:
Addressing first this notion of the conveyance requirement and the board's waiver, clearly the board does have the right and opportunity to enter into such waivers, and it's a relatively common occurrence that such various types of waivers are granted in hearings of this nature.
The board, as directed by the remand order, did specifically address the reasons why in this situation the board collectively decided that a conveyance was not in order and not preferred, and the reasons given have to do with the cost that would be incurred by the municipality if it did, indeed, obtain ownership of the strip.
There is a clear distinction between granting a waiver to a development plan and granting a variance from a zoning ordinance. Here, the Board's reasons for waiving the acceptance of the conveyance of the buffer strip were reasonable. There has been no showing that the Board's conclusions were arbitrary, capricious or unreasonable or that plaintiffs have overcome the presumption of validity this decision is entitled to under Pullen, supra, 291 N.J. Super. at 312.
Opinion of Patricia Knoblock
At the remand hearing, Patricia Knobloch, testified at length that inclusion of the buffer strip would limit plaintiffs' access to the new street and might prompt them to attempt to construct a street on their property if they wished to pursue development in the future. She concluded:
An additional street in this location would increase the amount of impervious surface and possibly result in a through street from Dutch Mill to Tuckahoe.
However, Crawford testified on February 17, 2009, that she did not buy her property with intent to subdivide and had no plans to do so. Thus, Knobloch's conclusions as to an additional street are speculative. The Board recognized this when they rejected Knobloch's recommendations and found her opinion was "based upon 'possible' development scenarios of the [plaintiffs'] property in the future, none of which were before the Board nor presented by [plaintiffs]."
The Board concluded that the buffer strip will not diminish the ability of [plaintiffs] to consider various opinions for development of their property in the future if they wish to proceed with such development.
There was extensive discussion by the Board of the merits of the contrasting recommendations of Knobloch and Filippone, and the Board acknowledged that they were "presented with differing opinions by well qualified planners." It is clear that the Board gave due consideration to the recommendations of Knobloch as required by the remand order. After considering the positions of all of the experts, they voted 5 to 3 to approve the resolution. Plaintiffs have not shown that the Board acted unreasonably in rejecting Knobloch's recommendations.
The Width of the Buffer Strip
On this issue the Board found that the ten foot strip "serves the purpose of preventing a through street while at the same time, not diminishing the building envelope for single family dwellings." The width of the strip was limited by the width of the parcel.
As noted by Judge Curio, the Board at the remand hearing was extremely thorough in addressing the outstanding issues. The Board considered the evidence before it and, based upon its special expertise, reached a decision that was supported by the evidence. Given the record before the Board, Judge Curio's deference to its expertise in arriving at its findings is supported by substantial credible evidence in the record. Kramer, supra, 45 N.J. at 296. Nothing in the record supports the conclusion that any action by the Board was arbitrary, capricious, or a manifest abuse of its discretionary authority.