October 10, 2012
HYER BUILDERS, LLC, PLAINTIFF-RESPONDENT,
TOWNSHIP OF MIDDLETOWN PLANNING BOARD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4143-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 3, 2011
Before Judges A.A. Rodriguez and Sabatino.
Defendant, the Township of Middletown Planning Board ("the Board"), appeals an October 28, 2010 order of the Law Division granting a developer, plaintiff Hyer Builders, LLC, relief in an action in lieu of prerogative writs. In particular, the Law Division nullified the Board's denial of a so-called "flexible c" variance that plaintiff had sought for a residential parcel pursuant to N.J.S.A. 40:55D-70(c)(2). For the reasons set forth in this opinion, we reverse the Law Division's order and remand the matter to the trial court for consideration of an appropriate remedy.
The pertinent facts and procedural circumstances are as follows. At the time of its land use application before the Board, plaintiff was the contract purchaser of a residential lot located in the township's R-5 zone. The R-5 zone is designated as a "high density" zone for single-family residences. Prior to the present case, the Township's master plan was amended to reduce the minimum lot size in the R-5 zone from 7,500 square feet to the current requirement of 5,000 square feet.
The property in question, Block 72, Lot 3, is 9,555 square feet and contains a house and a garage accessible from Pacific Avenue. Plaintiff sought to subdivide the property into two lots, 3.01 and 3.02, and build an additional house in the rear of Lot 3.02. Plaintiff also sought to extend Atlantic Avenue behind the property by approximately sixty-five feet, so that the new house on proposed Lot 3.02 would have street access via Atlantic Avenue.
To accomplish this objective, plaintiff applied to the Board for a subsection (c)(2) variance as part of its land use application because each of the two proposed subdivided lots would be under the R-5 zone's 5,000 square foot minimum. Proposed Lot 3.01, which contains the existing house, would be 4,748 square feet, and proposed lot 3.02, which would contain the additional proposed house, would be 4,807 square feet. Plaintiff also needed two setback variances for the existing house and garage.
Plaintiff filed an application with the Board seeking a minor subdivision to create the two non-conforming lots that required variances. On July 11, 2007, the Board held a public hearing on the application. At the conclusion of that hearing, the Board unanimously denied the application, thereafter issuing a resolution on August 1, 2007 that detailed its reasons for denying the application. In its resolution, the Board rejected plaintiff's contention that the requested approval was justified because the new lots would only "slightly" fall short of the R-5 minimum lot size requirements. As the Board noted, the Township's zoning ordinances are designed to protect the character of the neighborhood and to prevent overdevelopment.
While the applicant may argue that the [proposed subdivided] lot areas are only "slightly" deficient, they are nonetheless deficient. The line has to be drawn somewhere, and that line has been drawn at 5,000 square feet by the governing body. Crossing that line substantially impairs the ordinance and the master plan.
In August 2007, plaintiff filed a complaint in lieu of prerogative writs in the Law Division, contesting the Board's denial of subdivision approval for the undersized lots. After considering the matter, the trial court found that other portions of the Board's resolution, separate from its discussion of the minimum lot size requirement, had erroneously stated that plaintiff also needed lot coverage variances. Consequently, the trial court remanded the matter to the Board to deliberate plaintiff's application anew.
On remand, the Board met on July 2, 2008 and took further action concerning plaintiff's application. However, the Board did not reconsider the merits of the application, but simply adopted a modified resolution denying it. This second denial prompted plaintiff to file with the trial court an amended complaint in lieu of prerogative writs.
Following a status conference with counsel, the trial judge issued a second remand order on September 16, 2008, again directing the Board to deliberate plaintiff's application anew without consideration of the erroneously included lot coverage variance requirement.
On October 1, 2008, the Board reconsidered plaintiff's application, this time discussing its merits without factoring in the mistaken need for lot coverage variances. At the conclusion of that meeting, the Board voted unanimously to issue a second amended resolution denying the application. Plaintiff then filed with the court a second amended complaint in lieu of prerogative writs contesting the Board's renewed denial of its application.
On September 7, 2010, the trial judge issued a written opinion overturning the Board's denial of plaintiff's application. The judge concluded that the Board had acted arbitrarily and capriciously in rebuffing plaintiff's application. The judge independently determined, despite the Board's contrary findings, that plaintiff had satisfied the required positive and negative criteria to obtain a subsection (c)(2) variance from the municipal lot size requirements. Among other things, the judge found noteworthy that the Board had previously allowed another applicant with a different parcel in the R-5 zone to create two undersized lots of 4,800 square feet each.
In accordance with the trial court's decision, the Board issued a resolution conditionally granting plaintiff's application. In that resolution, the Board noted its continuing disagreement with the trial judge that plaintiff had demonstrated the positive and negative criteria to justify a lot size variance. The Board then filed the present appeal. It is unclear from the record whether construction on the project has gone forward in the meantime.
In considering the present appeal, we must be mindful that a municipal land use body's decisions are generally subject to only limited judicial review. Ocean Cnty. Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjustment, 352 N.J. Super. 514, 521 (App. Div.), certif. denied, 175 N.J. 75 (2002). "[A]n overriding principle governing judicial review of variance decisions by boards of adjustment is that, assuming an adequate basis in the record for a board's conclusions, deference to the judgment of local zoning boards ordinarily is appropriate." Lang v. Zoning Bd. of Adjustment of the Borough of N. Caldwell, 160 N.J. 41, 58 (1999). "Such land-use decisions are entrusted to the sound discretion of the municipal boards, which are to be guided by the positive and negative criteria set forth in the enabling statutes." Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 558 (1988).
The scope of appropriate judicial review is therefore limited "to determin[ing] whether the board could reasonably have reached its decision." Davis Enterprises v. Karpf, 105 N.J. 476, 485 (1987) (citing Kramer v. Bd of Adjustment, Sea Girt, 45 N.J. 268, 285 (1965)). Therefore, a court generally "will not substitute its judgment for that of a board 'even when it is doubtful about the wisdom of the action.'" Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002) (quoting Cellular Tel. Co. v. Zoning Bd. of Adjustment of the Borough of Harrington Park, 90 F. Supp. 2d 557, 563 (D.N.J. 2000)). As a result, "[a] local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable." Kramer, supra, 45 N.J. at 296.
It also must be underscored that "[c]courts give greater deference to variance denials than to grants of variances, since variances tend to impair sound zoning." Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001) (citing Cerdel Constr. Co. v. Twp. Comm. of East Hanover, 86 N.J. 303, 307 (1981)). A board of adjustment, "'because of [its] peculiar knowledge of local conditions must be allowed wide latitude in the exercise of delegated discretion.'" Medici v. BPR Co., 107 N.J. 1, 23 (1987) (quoting Kramer, supra, 45 N.J. at 296). "Because a board of adjustment's actions are presumed valid, the party 'attacking such action [has] the burden of proving otherwise.'" Cell S., supra, 172 N.J. at 81-82 (alteration in original) (quoting N.Y. SMSA Ltd. P'ship v. Bd. of Adjustment of the Twp. of Bernards, 324 N.J. Super. 149, 163 (App. Div. 1999)).
The operative legal standards for variances are recited within the Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-1 to -163. "The MLUL evinces a legislative design to require consistency, uniformity, and predictability in the subdivision-approval process. The legislative scheme contemplates that a planning board's review of a subdivision proposal . . . must be made within the framework of the standards prescribed by the subdivision and, if pertinent, the zoning ordinances." Pizzo Mantin Grp. v. Twp. of Randolph, 137 N.J. 216, 229 (1994).
Here, the relevant MLUL provision is N.J.S.A. 40:55D-70(c)(2), which prescribes that:
[W]here in an application or appeal relating to a specific piece of property the purposes of this act . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, [the board of adjustment shall have the power to] grant a variance to allow departure from regulations pursuant to article 8 of this act; provided, however, that the fact that a proposed use is an inherently beneficial use shall not be dispositive of a decision on a variance under this subsection and provided that no variance from those departures enumerated in subsection d. of this section shall be granted under this subsection; and provided further that the proposed development does not require approval by the planning board of a subdivision, site plan or conditional use, in conjunction with which the planning board has power to review a request for a variance pursuant to subsection a. of section 47 of this act[.]
In enacting this provision, "the Legislature added to subsection c a very narrow band of cases in which the standard would fall somewhere between the traditional standards of 'hardship,' on the one hand, and 'special reasons,' on the other." Kaufmann, supra, 110 N.J. at 560-61. "However, the purposes of the MLUL must still be advanced by the requested deviation from zoning requirements." Id. at 561.
In carrying out the Legislature's intent underlying this portion of the MLUL, the Supreme Court instructed in Kaufman that "no c(2) variance should be granted when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property." Id. at 563. As contrasted with a so-called "hardship" variance that a planning board may grant pursuant to subsection (c)(1), [t]he focus of a c(2) case [is] not on the characteristics of the land that, in light of current zoning requirements, create a "hardship" on the owner warranting a relaxation of standards, but . . . the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community. [Ibid. (emphasis omitted)]
Hence, "[b]y rooting the c(2) variance in the purposes of the MLUL, the Legislature has confined the discretion of boards: they cannot rewrite ordinances to suit the owner or their own idea of what municipal development regulations should be." Id. at 564. Instead, land use boards considering variance applications under subsection (c)(2) must endeavor "to effectuate the goals of the community as expressed through its zoning and planning ordinances." Ibid.
The Court in Kaufmann aptly noted "the increasing 'shift of authority' to the local boards to effectuate municipal land use policy." Id. at 557 (quoting Medici, supra, 107 N.J. at 20). "Concomitant with this enhanced authority, [the Court has] increasingly emphasized that planning, and not ad hoc decision making, is the cornerstone of sound governmental policy in this area." Ibid. (citing Riggs v. Twp. of Long Beach, 109 N.J. 601, 619-22 (1988) (Handler, J., concurring)).
We also cannot lose sight of the fact that, before plaintiff's application was ever presented, the township's master plan, as part of a much broader periodic update process, was specifically revised to reduce the minimum lot size requirements for the R-5 zone from 7,500 square feet to 5,000 square feet. "The requirements of periodic reevaluation of the municipal master plans and development regulations, N.J.S.A. 40:55D-89, -89.1, and of annual reports and recommendations from boards of adjustment, N.J.S.A. 40:55D-70.1, help to ensure government by ordinance and not by variance." Ibid. (citing PRB Enters., Inc. v. S. Brunswick Planning Bd., 105 N.J. 1, 9 (1987)).
In his written opinion invalidating the Board's rulings in this case, the trial judge observed that the township "contemplated, when it created the R-5 Zone, the very scenario that occurred here since the area was already substantially developed: a small number of subdivision applications." The judge quoted the following commentary from the 1993 amendment of the Master Plan creating the R-5 zone, which reduced minimum lot sizes in the area from 7,500 to 5,000 square feet:
It is not anticipated that this change will result in significant growth in the future. The reason is that the area in question is substantially developed. A small number of two and three lot minor subdivisions may occur, but their impact should be minimal. The only large underdeveloped tracts of land remaining in this area are wetlands and for the most part are under the control of the Township or County.
Based upon his reading of this commentary, the judge was "not convinced that the language from the Master Plan contemplated only the subdivision of a legally conforming lot into legally conforming minimum lot sizes."
Although we agree with the judge that the township did not intend to foreclose all relief from the R-5 zone's 5,000 minimum lot size requirement (and, in fact, the township legally could not do so under the MLUL), we find significant that the master plan contemplated only a "small number" of minor subdivisions, and only a "minimal" impact from such approvals. In amending the master plan to specify minimum lot sizes of 5,000 square feet, the township set a limit that it presumably deemed to be consistent with the desirable population density of the area. If the township wanted to achieve that population density by allowing lot sizes below 5,000 square feet whenever an applicant wanted them, it could have attained that result more predictably and uniformly by simply establishing a lower minimum lot size. The township did not do so, and instead drew the line at 5,000 square feet. That line is not merely an aspirational guideline, but instead is a legal requirement within the zone that can only be overcome if the stringent site-specific positive and negative criteria of N.J.S.A. 40:55D-70(c)(2) are fulfilled.
In attempting to prove that its application met the positive criteria for a (c)(2) variance, plaintiff identified the proposed extension of Atlantic Avenue as a benefit associated with its application. Plaintiff argued that the improvement of Atlantic Avenue to extend that roadway in front of its proposed new lot 3.02 would constitute an improvement for the community at large, and thus satisfy the positive criteria of the (c)(2) variance. In support of this claim, plaintiff cited N.J.S.A. 40:55D-42, which states that
The governing body may by ordinance adopt regulations requiring a developer, as a condition for approval of a subdivision or site plan, to pay the pro-rata share of the cost of providing only reasonable and necessary street improvements and water, sewerage and drainage facilities, and easements therefor, located off-tract but necessitated or required by construction or improvements within such subdivision or development.
Plaintiff argued that the extension of Atlantic Avenue will benefit the community as a whole as well as the owners of two other nearby parcels in Block 72, lots 18 and 19. Plaintiff further argued that because it would bear the full cost of the extension of Atlantic Avenue rather than just the pro-rata share required by N.J.S.A. 40:55D-42, it would be providing a benefit to the entire community.
The construction of the Atlantic Avenue extension, however, is required for street access for the proposed home on subdivided lot 3.02, whereas the owners of lots 18 and 19 have requested no such street access. Furthermore, the extension would not reach lots 18 and 19 and would require further extension to reach these lots.
Plaintiff's planning expert contended before the Board that the design of the proposed new house on lot 3.02 would provide for adequate light, air, open space, a desirable visual environment, and appropriate population densities. The Board rejected these assertions as generic claims that virtually any responsible applicant could make. In its October 1, 2008 resolution, the Board noted that it found "that these alleged benefits are better met by not developing a second home on this property." The Board also noted that retaining "[o]ne home on this property [without a subdivision] would provide better air, light and open space; would provide a population density consistent with the neighborhood and the zone plan; and a less crowded visual environment." Consequently, the Board concluded that plaintiff had "failed to prove any cognizable benefits to the public of granting this variance." These adverse findings are reasonable, and entitled to greater deference than the trial judge accorded to them.
As the Court noted in Kaufman, "no c(2) variance should be granted when merely the purposes of the owner will be advanced." 110 N.J. at 563. Rather "[t]he grant of approval must actually benefit the community in that it represents a better zoning alternative for the property." Ibid. Here, the Board had an ample basis to conclude that the benefits claimed by plaintiff are insubstantial or non-existent. Air, light and open space on the property as a whole would be reduced by the addition of a new structure. The Board also reasonably determined that the added structure would detract from the appearance of the area. Moreover, the addition of a home would increase the population density of the area, thereby undermining the goal of the master plan.
We also part company with the trial judge's rejection of the Board's finding that plaintiff's application failed to meet the negative criteria of the statute. "The requirement that the grant of the variance not 'substantially impair the intent and the purpose of the zone plan and zoning ordinance' focuses on whether the grant of the variance can be reconciled with the zoning restriction from which the applicant intends to deviate." Lang, supra, 160 N.J. at 57 (quoting Medici, supra, 107 N.J. at 21). The Supreme Court in Lang noted that "reconciliation of a dimensional variance with the zone plan and zoning ordinance is a relatively uncomplicated issue, and depends on whether the grounds offered to support the variance, either under subsection c(1) or c(2), adequately justify the board's action in granting an exception from the ordinance's requirements." Supra, 160 N.J. at 57-58.
The Board in this case rejected plaintiff's contention that granting its application for a variance would not result in "substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70. In overturning that finding, the trial judge found that the "requested variances for undersized lots are de minimis in nature and the subdivision application in this R-5 Zone was contemplated in the aforesaid Master Plan." On this point, we again conclude that the judge should have accorded the Board more deference.
In attempting to negate the Board's concerns that subdivision of its property will result in a substantial detriment to the surrounding properties, plaintiff notes that the proposed subdivided lots would deviate no more than five percent from the minimum lot size requirement. Although that may be so, the Board did not act arbitrarily or capriciously in regarding these deviations to be significant nonetheless. If framed in a different numeric manner, proposed lot 3.01 would be 252 square feet short of the minimum size, and lot 3.02 would be 193 feet short, for a combined total of 445 square feet. That is the equivalent of the size of a large room within a house, and the Board was not obligated to treat that shortfall as negligible.
Plaintiff also emphasizes that lot size variances were granted to a next-door neighbor in 2001, and argues that it is entitled to the same relief. Plaintiff's argument overlooks the fact that, because the Board granted the neighbor's earlier application, there is now an additional structure directly in the same area where plaintiff seeks to subdivide. As such, the circumstances that existed at the time the adjacent property owner's application was approved no longer exist. The Board was entitled to consider the cumulative negative impact of these successive applications on the neighborhood, in light of the master plan's overall goal of reduced population density.
In sum, the trial court erred in upsetting the Board's considered and repeated assessment in this case that plaintiff's variance application did not fit the "very narrow band of cases" in which a subsection (c)(2) variance is warranted. Kaufman, supra, 110 N.J. at 560. We therefore reverse the trial court's decision.
Because we are unsure if the project has been fully or partially built in the meantime, we remand this matter to the trial court for further proceedings to address what remedies are appropriate under the circumstances. See Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment, 397 N.J. Super. 335, 340 (App. Div. 2008) (remanding to the trial court the task of fashioning an appropriate remedy where a land use approval was nullified on appeal and the project had been partially built while the appeal was pending).
Reversed and remanded. We do not retain jurisdiction.
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