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Olga Kaplinsky v. Borough of Woodland Park

August 31, 2012

OLGA KAPLINSKY, PLAINTIFF-RESPONDENT,
v.
BOROUGH OF WOODLAND PARK, PLANNING BOARD, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1023-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 23, 2012

Before Judges Fuentes and Koblitz.

The Planning Board of the Borough of Woodland Park (the Board) appeals from the order of the Law Division reversing its denial of a minor subdivision application filed by plaintiff Olga Kaplimsky. We reverse. The trial court's decision reflected a de novo review of the evidence plaintiff presented to the Board. This approach did not give due deference to the Board's factual findings. Under the applicable standard of review, we conclude that the Board's decision denying plaintiff's subdivision application was supported by competent evidence and constituted a valid exercise of the Board's discretionary authority.

I

The property that is the subject of plaintiff's subdivision application consists of a one-family residence situated on an 8000 square foot corner lot, with a lot width of forty feet. The residence is situated on the front of the lot, which fronts Ryle Park Avenue; the rear of the lot, which is made up of the home's backyard, overlooks Passaic Avenue. Plaintiff's subdivision would create two 4000-square-foot lots, both with a lot width of forty feet.

Under the prevailing municipal zoning ordinance, plaintiff's property is located in a residential district that requires one-family residences to have a minimum lot size of 10,000 square feet, a minimum lot width of 100 feet, a minimum front yard setback of twenty-five feet, a minimum side yard setback of fifteen feet, and a maximum lot coverage of twenty percent. The residence on plaintiff's property was constructed before these zoning restrictions were adopted. Thus, under the current zoning scheme, new construction on a similar lot would require a number of bulk variances.

At the Board's request, T&M Associates, the Borough's planning engineer, submitted a report assessing the zoning implications of plaintiff's proposed subdivision. According to T&M, the subdivision required variances for minimum lot size, minimum lot width on both sides of the property, front yard setback, percentage of lot coverage, and onsite parking.*fn1 Stated differently, the subdivision would exacerbate the property's pre-existing nonconformance and create new deviations from the Borough's zoning scheme.

The Board considered plaintiff's application at a regular meeting in June 2008. Plaintiff was represented by counsel. In addition to herself, plaintiff called Mathew G. Evans, a licensed architect and planner, who testified about the general character of the neighborhood. According to Evans, plaintiff's property and proposed subdivision was in line with the prevailing development in the neighborhood. In Evans's opinion, the subdivision would advance the [a]ppropriate use and development of the property, [the] provision of adequate light, air, and open space, [the] creation a desirable visual environment, and the efficient use of land. Approval of this application [would] neither be of a substantial detriment to the public good nor [would it] substantially impair the intent and purpose of the plan or the zoning ordinance. The benefits of an approval would far outweigh any conceivable negative detriment.

Several area residents testified opposing plaintiff's application. The Mayor of Woodland Park, who also served as a member of the Board, expressed his concern that the subdivision would make "an already tight neighborhood even tighter . . . ." The Board adjourned the hearing that night without taking a final vote. At a follow-up hearing held in December 2008, the Board voted to deny plaintiff's application, memorializing its decision in a resolution dated January 12, 2009.

Plaintiff appealed the Board's decision by filing a complaint in lieu of prerogative writs in the Law Division. After joinder of issue, the court remanded the matter for the Board to adopt a revised resolution "making findings of facts and conclusions of law" in support of its decision to deny plaintiff's application. On April 12, 2010, by a vote of five to zero, the Board adopted a revised resolution detailing its reasons for denying plaintiff's application.

After reviewing the record developed at its hearing, the Board concluded that approving the subdivision "would result in taking a nonconforming lot and making it an even further nonconforming lot[,] which is contrary to the zoning plan and Ordinance as well as the public good." The Board also noted that the subdivision would merely serve plaintiff's pecuniary interest at the expense of sound municipal planning.

The Applicant does not reside at the property and is earning income on the dwelling as a rental unit. The Applicant purchased the property as a single parcel with a large backyard area. There was no testimony that the Applicant tried to buy the property to add to the existing lots to bring the property into compliance as seen in other cases. Applicant bought the property as is and any harm in not being able to develop it is self-imposed. In sum, Applicant sought to take a ...


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