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Olga Kaplinsky v. Borough of Woodland Park


August 31, 2012


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

Per curiam.


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.


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 nonconforming lot and make it two even more nonconforming lots and build a structure that was twice the size of other homes in the area.

When the case returned to the Law Division, the judge assigned reversed the Board's denial and remanded the matter for the Board "to grant minor subdivision approval and variances as requested in plaintiff's . . . application." In reaching this decision, the judge reexamined the evidence presented to the Board. In particular, after reviewing the testimony of plaintiff's planner, the judge noted: "As I indicated previously, it seems that these two [proposed] lots would fit in nicely with the existing character of the neighborhood and no serious argument could be made that they'd be a detriment to the purpose of the zoning in the area."

Consistent with this line of reasoning, the judge faulted the Board for not supporting its factual findings with expert testimony.

The Planning Board purports to make findings of fact and conclusions of law denying these variances and in review of the resolution, I find that none of the findings of fact upon which the conclusions of law are based, other than the actual dimensions of the lot and the ownership thereof, are based on competent evidence.

The Board reviews [sic] to the opinions of several members of the public who offered their opinions as to the propriety of the proposed development. Neither of these opinions are based on expert testimony or knowledge, they're simply the opinions of members of the public as to what they would prefer, what they would not prefer to see on that property. There is no grounding in expert testimony by the Board's experts in support of any of the proposed findings or conclusions.


Against this backdrop the Board now appeals, arguing that the court did not apply the correct standard of review in assessing the correctness of the Board's decision. We agree.

When a party appeals from a decision of a planning board, the Law Division is limited to determining whether the decision to deny or grant a given application was arbitrary, capricious or unreasonable. Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 560 (App. Div. 2004). "The factual determinations of the planning board are presumed to be valid and the exercise of its discretionary authority based on such determinations will not be overturned unless arbitrary, capricious or unreasonable." Ibid. (citing Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990)). The board's decisions are also entitled to a presumption of good faith, meaning that it acted fairly, with proper motives, and for valid reasons. Id. at 560-61.

The arbitrary and capricious standard is analogous to the substantial evidence standard. Cell S. of N.J., Inc. v. Zoning Bd. of Adj., 172 N.J. 75, 89 (2002). The court must determine whether the planning board properly exercised its discretion. In going about this task, the reviewing court must guard against substituting its judgment for that of the board. See Fallone, supra, 369 N.J. Super. at 561. Thus, even if the court doubts the wisdom of the board's decision, it must nevertheless uphold that decision unless the party appealing shows that the board's action was not grounded in competent evidence in the record. See id. at 562.

In this context, we emphasize that a planning board is not required to accept the testimony of any expert. See El Shaer v. Planning Bd., 249 N.J. Super. 323, 330 (App. Div. 1991) (providing little weight to expert's testimony where expert failed to present evidence of a "gap analysis" study), certif. denied, 127 N.J. 546 (1992). Finally, a court is bound to give greater deference to the denial of a variance because sound municipal planning is best achieved through legislation adopted by the local governing body, not through variances granted by zoning boards on case-by-case bases. See Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adj., 343 N.J. Super. 177, 199 (App. Div. 2001). Our review of the trial court's decision is de novo, applying the same standard of review that the trial court should have used to determine the validity of the Board's action. Klug v. Bridgewater Twp. Planning Bd., 407 N.J. Super. 1, 13 (App. Div. 2009).

Guided by these principles, we conclude that the trial court failed to give the Board's decision the deference it was due and ultimately substituted its judgment for that of the Board. The court improperly engaged in a de novo review of the evidence to determine that the variances required by this subdivision should have been granted. The court unduly emphasized the opinion testimony of the applicant's planner, and undervalued the Board's independent finding that subdividing this pre-existing nonconforming lot would needlessly exacerbate its nonconformance. As we noted in Medical Center at Princeton, supra, "[t]he Legislature has recognized that local citizens familiar with a community's characteristics and interests are best equipped to assess the merits of variance applications." 343 N.J. Super. at 198.

The trial court also failed to give due deference to the Board's finding that the subdivision only served plaintiff's pecuniary interest at the expense of sound planning. The record supports the Board's finding that plaintiff did not show how creating two nonconforming lots would advance the Borough's zoning scheme for this area.


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