May 31, 2012
WILLIAM SCHARFENBERG, PLAINTIFF-APPELLANT,
TOWNSHIP OF WALL PLANNING BOARD, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5755-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2012 -
Before Judges Simonelli, Hayden and Accurso.
In this prerogative writs matter, plaintiff William Scharfenberg appeals from the trial court's November 24, 2010 decision, which affirmed defendant Township of Wall Planning Board's (Board) denial of plaintiff's application for major subdivision approval to divide an existing lot into two lots. We affirm.
Plaintiff owns property known as Block 876, Lot 18 in Wall Township, which is located in the R-30 residential zone. The lot is a 117,297 square-foot irregularly shaped lot bisected by a 17,600 square-foot lake and separated from the Manasquan River by neighboring Lots 14.01 and 14.02. Lot 18 is bordered on the north by a twenty-five foot wide private right-of-way known as Twin Lakes Drive, which is part of Lot 14.01, and on the south by a vacated right-of-way portion of an un-constructed dead-end "paper street" known as River Road, which the Township vacated in 2001 to eliminate access to the property from that road. Access from the property to the nearest public street, Ramshorn Drive, is via an easement on the Twin Lakes Drive private right-of-way.
Plaintiff applied for major subdivision approval pursuant to N.J.S.A. 40:55D-70c to subdivide the lot into two lots, Lots 18.01 and 18.02. Proposed Lot 18.01, which would have frontage on a public street, would be a 53,035 square-foot lot located at the north side of the lake, where plaintiff's present home would remain. Access to Ramshorn Drive would continue through the easement on Twin Lakes Drive.
Proposed Lot 18.02, would be a 60,550 square foot lot located at the south side of the lake on which plaintiff planned to build a 4000 square foot home. Access to Ramshorn Drive would be via a twenty-five-foot frontage at the dead end of River Road.*fn1 There is a guardrail at the dead end of River Road that extends perpendicular to the roadway to prevent cars from going through the dead end into a deep gully on plaintiff's property. Plaintiff proposed to open the guardrail and run it along the westerly property line.
The Board determined that plaintiff required several variances from the zoning ordinance's general and flag lot*fn2
standards because Lot 18 and the proposed lots are flag lots that are not permitted in the R-30 zone, proposed Lot 18.01 had no frontage on a public street, proposed Lot 18.02 had insufficient frontage, and both lots had nonparallel lot lines. Plaintiff argued that: (1) proposed Lot 18.01 did not require a variance for frontage because it fronts on Twin Lakes Drive, which meets the definition of a "street" under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163; (2) Lot 18 and the proposed lots were not flag lots; (3) by vacating River Road the Township created a hardship supporting the grant of a c(1) variance; and (4) the Board should grant a c(2) variance for frontage because the proposed lots represent a better zoning alternative for the property, and thus, benefit the community.
The Board held eleven non-consecutive hearings over an eighteen-month period. The hearings were contentious with numerous objectors, some with attorneys and experts, voicing their opposition to the subdivision. Alexander Lehrer (Lehrer), a retired Judge of the Superior Court of New Jersey, was among the objectors.
On October 5, 2009, the Board issued a resolution with detailed findings, and denied the application. The Board found that Lot 14.01 is a flag lot and the "staff" of the flag runs out to Ramshorn Drive and serves as access for Lot 18; Lot 18 and proposed Lot 18.01 are flag lots because they have no frontage on an existing public street; and Lot 18's frontage on River Road did not exempt it as a flag lot because the existing house on the lot is not accessed from River Road. The Board also found that the Township created no hardship by vacating River Road because Lot 18 was developed with the anticipation that it would access Ramshorn Drive via the easement on Twin Lakes Drive.
The Board noted that the zoning ordinance requires flag lots in the R-30 zone to have a minimum lot area of 90,000 square feet, a fifteen-foot buffer along conflicting yards, and an eighty-foot front yard building setback. The Board found that Lot 18 is a conforming flag lot as to minimum lot area; however, the subdivision would make proposed Lot 18.01 a non-conforming flag lot as to minimum lot area because the lot would only be 53,035 square feet where 90,000 square feet is required. In addition, the existing house on proposed Lot 18.01 would violate the front yard setback requirement because the front yard is approximately twenty-five feet where eighty feet is required. The Board also found that because proposed Lot 18.01 lacks frontage, its minimum lot width and depth could not be measured. Thus, the Board could not determine whether additional variances for this lot were required.
The Board found that proposed Lot 18.02 is a flag lot that will only have a minimum lot area of 60,550 square feet, and a setback of only twenty-five feet. The Board also found that the lot's "layout, structures, and improvements . . . will be unlike the other lots on River Road and the neighborhood. It will not contain any street frontage other than a driveway and will effectively be set behind other houses."
The Board concluded that:
[T]he proposed subdivision with the variances associated with it does, in fact, impair the zone plan by creating lots without frontage or minimum frontage, creating, unquestionably, . . . two nonconforming flag lots, lots with irregular lot lines making the traditional measurements for side, rear and front yards impossible and a front yard setback variance on lot 18.02 of 25 ft. where 40 ft. is required.
The foregoing substantial detrimental impacts exist whether or not the lots . . . are deemed flag lots.
[B]y approving a subdivision which creates one lot totally lacking in frontage, another lot with minimum frontage, creating a nonconforming flag lot in a zone that does not permit flag lots and a second flag lot with the various setback violations previously noted, which lots would have irregular lot lines, substantially impairs the intent and purpose of the zone plan and zoning ordinance and creates a substantial detriment to the surrounding properties.
[T]he opening up of the guard rail [at the dead end of River Road], along with all the other unique problems associated with this subdivision, including all the variances and irregularities, demonstrates that the subdivision request is not in conformity with the subdivision ordinances of the Township of Wall and the applicant has not carried his burden of proof as required by the [MLUL] to justify the major subdivision with the variances and irregularities required.
Plaintiff filed a complaint in lieu of prerogative writs challenging the Board's decision. Plaintiff argued before Judge Lawrence Lawson that Board's decision was arbitrary, capricious and unreasonable, the evidence supported the grant of a c(2) variance, Lot 18 and proposed Lots 18.01 and 18.02 are not flag lots within the definition of the flag lot ordinance, the flag lot ordinance should be invalidated, Lehrer exerted undue influence on the Board's decision-making ability, and Board member George Newberry (Newberry) had a conflict of interest based on his relationship with Lehrer.
In a November 24, 2010 written opinion, which included a detailed review of the record and applicable law, Judge Lawson concluded that the Board's decision was not arbitrary, capricious, or unreasonable, and affirmed it. He found that the Board had properly determined that the proposed lots were flag lots within the zoning ordinance's definition of a flag lot, and properly denied a c(2) variance based on its finding that the negative criteria outweighed the positive criteria. The judge noted that plaintiff had presented proofs addressing the positive and negative criteria for a c(2) variance; however, plaintiff did so in the context of arguing that the proposed lots are not flag lots, and failed to address evidence that the subdivision would create undersized flag lots that lacked the required frontage and had irregularly shaped boundary lines. In addition, the judge found that "the subdivision of two (2) undersized flag lots does not encourage the appropriate density because the proposed Lots are undersized, thus creating too much density."
Citing N.J.S.A. 40:55D-70c(1) and Isko v. Planning Bd. of Livingston, 51 N.J. 162, 174 (1968), Judge Lawson found that the Board's denial of a c(1) variance was not arbitrary, capricious, or unreasonable because plaintiff's claimed hardship was not related to the property's physical condition, but rather to how the land was developed. Citing Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 78 (App. Div. 2006) and Cobble Close Farm v. Bd. of Adjustment, 10 N.J. 442, 455-56 (1952), the judge declined to address plaintiff's challenge to the flag lot ordinance because plaintiff did not raise this issue in the complaint or join the municipality as a defendant.
Finally, in addition to reviewing the record, Judge Lawson reviewed Lehrer's and Newberry's deposition transcripts and found no support therein for plaintiff's claims that Lehrer tainted the proceedings, or that Newberry had a conflict of interest because of his relationship with Lehrer. This appeal followed.
On appeal, plaintiff contends that Judge Lawson erred in affirming the Board's decision because the Board acted arbitrarily, capriciously and unreasonably. He again argues that the evidence supported the grant of a c(2) variance, Lot 18 and proposed Lots 18.01 and 18.02 are not flag lots, the flag lot ordinance should be invalidated, Lehrer exerted undue influence on the Board's decision-making authority, and Newberry had a conflict of interest. We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Lawson in his comprehensive and well-reasoned November 24, 2010 written opinion.