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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...