July 19, 2013
VIRIATO D. LABORIM and BARBARA LABORIM, FRANK TIDONA, JOAN TIDONA, LEE A. JEWELL, PATRICIA M. JEWELL, DAVID LAPOVSKY, LUCIE LAPOVSKY, DR. FRANK M. MELE, JUNE MELE, DR. NEIL RUSSO, JAY M. RUDOWSKY, PATRICIA RUDOWSKY, THOMAS PIKOWSKI, DENISE PIKOWSKI, MICHAEL GUANCIONE & JOYCE GUANCIONE, Plaintiffs-Appellants,
FRANCES MEHNERT and BRADLEY BEACH BOARD OF ADJUSTMENT, Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 30, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5041-10.
Martin J. Arbus argued the cause for appellants (Arbus, Maybruch & Goode, LLC, attorneys; Mr. Arbus and Matthew R. Goode, on the briefs).
Michael J. Wenning argued the cause for respondent Frances Mehnert (Keith, Winters & Wenning, attorneys; Mr. Wenning, on the brief).
Richard B. Stone argued the cause for respondent Bradley Beach Board of Adjustment (Stone Mandia, attorneys; Mr. Stone and Jason M. Ross, on the brief).
Before Judges Alvarez, Waugh, and St. John.
Plaintiffs appeal the Law Division's dismissal of their action in lieu of prerogative writs against defendants Frances Mehnert and the Bradley Beach Board of Adjustment. We affirm.
We discern the following facts and procedural history from the record on appeal.
Mehnert owns a lot with a two-family residence on the corner of Ocean Avenue and Cliff Avenue. The property is in the Residential Beachfront Zone, which allows single- and two-family houses, garden apartments, and townhouses. The lot is irregularly shaped and undersized.
In January 2010, Mehnert sought permission from the Board to demolish the existing two-family residence and construct a single-family house. She also sought the bulk variances necessary to build the new house.
The Board considered Mehnert's variances on February 18, March 18, April 22, and June 2, 2010. She revised her plan several times to address the concerns expressed by the public and the Board at the hearings. On July 15, the Board approved the application by a vote of five to two.
The Board passed a resolution memorializing the grant of the variances on August 19. Variances were granted as followed:
Minimum Front Yard-Cliff Avenue: 25 feet required; 2.25 feet provided;
Minimum Rear Yard: 19.4 feet required; 6.6 feet provided;
Maximum Building Coverage: 35% permitted; 46.1[%] existing and 50.5% proposed;
Maximum Lot Coverage: 60% permitted; 59.8% existing and 63.5% proposed
Variances were also granted for the driveway, which was to be sixteen feet wide with an eighteen-foot curb cut, in contrast to the zoning ordinance's maximum of ten-foot-wide driveways with twelve-foot curb cuts. The proposed driveway was also only seven feet long whereas the zoning ordinance requires driveways to be at least twenty feet.
The Board granted the variances subject to several conditions, including a deed restriction that the property would remain a single-family dwelling, installation of a pedestrian sensor system on the driveway, replacement of a curb and sidewalk, relocation of a retaining wall, installation of drywells, the pushing back of a bay window, location of the air conditioning units on the north side of the property, relocation of the fireplace vent, lowering of the roofline, and starting construction within two years of approval.
Plaintiffs filed their complaint in lieu of prerogative writs on October 8. After a pretrial conference, the trial judge remanded the matter to the Board for a public hearing with respect to the proposed pedestrian sensor system.
The Board held the remand hearing on February 17, 2011. After the hearing, the Board voted to approve the application without the pedestrian sensor system. The application was approved by a vote of six to one. Vice Chairman Michael Conoscenti changed his vote to "yes, " explaining that,
[w]hile I voted against this project initially, the first time around, I've had a lot of time to think about this between then and now. I never felt that the warning signals were significant enough to . . . approve or disapprove the project. And so, I think the project's a good project. I think the Applicant has helped with the project – with making the project more palatable to our neighbors.
The resolution memorializing the decision contained additional changes that were not discussed at the hearing. Although the minimum front yard requirement was maintained at twenty-five feet with only 2.25 feet provided, the resolution added that "[t]he bumpout on the north side of building on Cliff Avenue front yard was reduced . . . so that the front yard increases to 3.75 [feet]." The maximum building coverage of the lot was also increased, from 50.5% to 62.7%.
The parties returned to the trial judge for further argument on August 2. On August 30, the judge issued a written opinion in which he rejected most of plaintiffs' procedural arguments. However, the judge held that the Board's resolution was legally insufficient because it did not make findings regarding the positive and negative criteria for granting a variance. He ordered "a remand to the Board for reconsideration and specific factual findings." In his order, the judge required the Board to "hold a hearing with notice to all parties to prepare and adopt a new Resolution within forty-five (45) days."
The Board held the second remand hearing on October 20. The Board's counsel advised the Board that plaintiffs' counsel should be permitted to speak, but should not be "allowed to suggest that [Board members] should be able to change their vote once they've approved the resolution." He explained that the remand vote was confined to whether the proposed resolution memorializing the Board's most recent decision accurately reflected the reasons for its actions. He specifically told the members that "they can't change their vote" on the merits of the variances.
At the conclusion of the hearing, the Board voted to approve the resolution prepared by counsel, as amended at the hearing. Conoscenti, who had become chairman, expressed some concern regarding the resolution because he did not agree with the requirement for two on-site parking spaces. He went on to say "I'm approving something even though I don't agree." The Board's counsel responded "I would rather not talk about it. . . . [T]he only thing that happens here tonight is to memorialize the resolution as drafted." All members present who had previously voted in favor of the application voted to approve the resolution.
The resolution stated that the application advanced the purposes of zoning, based on the following:
Project is based on a residential single-family use, which is preferred density pattern as per Master Plan.
The project has proper scale taking into consideration height, set-backs and existing structures and uses in the surrounding area.
On-site parking is provided which removes existing non-conformity and recognizes the off-site parking concerns of Master Plan. N.J.S.A. 40:55[D]-2(a), (h).
Details of construction lead to a desirable visual environment through aesthetic design with pleasing details. N.J.S.A. 40:55D-2(i).
The resolution also found that the negative criteria for bulk variance relief had been met:
The surrounding properties will not suffer any deleterious impact from the proposal based on the nature of the use, the property size and location and the size and location of existing buildings in the area.
The proposal will present a substantial benefit to the public good, as the proposal is a low density, high value use and will not negatively impact the existing residential character of the surroundings.
The parties then returned to court. Plaintiffs challenged the Board's action on the remand, arguing that they should have been allowed to reargue the merits of the decision and that the Board members should not have been precluded from changing their votes. They also challenged the grant of the variance application as arbitrary, capricious, or unreasonable.
The trial judge heard oral arguments on May 9, 2012. In a July 6 written opinion, the judge rejected plaintiffs' arguments concerning the conduct of the remand hearing.
The purpose of remand was to have the Board set forth the requisite findings of fact and conclusions of law in its memorializing resolution so that this Court could properly review the Board's action of a grant. Plaintiffs' citation to Pizzo Mantine Group v. Township of Randolph, 137 N.J. 216, 234 (1994) is misplaced. This matter was not remanded for "new findings of fact [or to] reach additional and different conclusions of law" as was the case in Pizzo, where it was necessary because new evidence needed to be presented. Ibid. The purpose was not to force the Board's hand to change their vote of approval prior to full judicial review. See N.J.S.A. 40:55D-10(g)(2) ("[t]he vote on any such resolution shall be deemed to be a memorilization [sic] of the action of the municipal agency and not to be an action of the municipal agency.") (emphasis added). In other words, Defendant Mehnert's "day in court" on the adequacy of the Board's decision had yet to come. To go back on remand and take away Mehnert's established right of an approval of variances without a full hearing on the merits before this Court was not the intent of remand. Thus, the Board's counsel's instruction to the Board about not changing their votes was proper.
[(Alteration in original) (footnote omitted).] The judge also explained his reasons for upholding the variance and dismissing plaintiffs' complaint. This appeal followed.
On appeal, plaintiffs argue that the judge erred in upholding the Board's action at the second remand hearing and in finding that the Board's approval of the variance was not arbitrary, capricious, or unreasonable.
With respect to the first issue, the law is clear that objectors to a zoning decision are entitled to "a fair hearing consistent with fundamental standards of due process." See Kramer v. Bd. of Adjustment, 45 N.J. 268, 280 (1965). There were several very substantive hearings before the Board in this matter, at which plaintiffs and other objectors had ample opportunity to make their positions known to the Board. As a result, there were some significant alterations in Mehnert's proposal and the Board included conditions to its grant of the variance.
The core purpose of the last remand was for the Board to adopt a resolution setting forth the reasons for its action. Under N.J.S.A. 40:55D-10(g), "[t]he municipal agency shall include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision to writing." Although there is frequently discussion among board members before a resolution is reduced to writing, we have "not deem[ed] it mandatory." Scully-Bozarth Post # 1817 of Veterans of Foreign Wars v. Planning Bd., 362 N.J.Super. 296, 312 (App. Div.), certif. denied, 178 N.J. 34 (2003).
The Supreme Court has noted that "the key to sound municipal decision-making is a clear statement of reasons for the grant or denial of a variance." Kaufmann v. Planning Bd., 110 N.J. 551, 566 (1988). "Local boards and their counsel should take pains to memorialize their decisions in resolutions that explain fully the basis on which the board has acted, with ample reference to the record and the pertinent statutory standards." Commercial Realty & Res. Corp. v. First Atl. Props. Co., 122 N.J. 546, 566-67 (1991).
The resolution takes precedence over comments by individual board members:
While remarks made by individual Board members during the course of hearings may be useful in interpreting ambiguous language in a resolution, they are not a substitute for the formality mandated by N.J.S.A. 40:55D-10(g). Such remarks at best reflect the beliefs of the speaker and cannot be assumed to represent the findings of an entire Board. Moreover, because such remarks represent informal verbalizations of the speaker's transitory thoughts, they cannot be equated to deliberative findings of fact. It is the resolution, and not board members' deliberations, that provides the statutorily required findings of fact and conclusions.
[N.Y. SMSA, L.P. v. Bd. of Adjustment, 370 N.J.Super. 319, 333-34 (App. Div. 2004).]
Although Conoscenti expressed some hesitation because he disagreed with the aspect of the Board's decision concerning on-site parking, neither he nor any other member of the Board expressed a desire to change the vote on the overall issue. And, even if Conoscenti had changed back to his original "no" vote, the variance would have been approved.
Because we see no sign of a due process violation or other fundamental unfairness in the remand procedure, we defer to the trial judge's ultimate conclusion that, although perhaps flawed, the conduct of the final remand hearing was not so inconsistent with his directions that the results should be invalidated. The remand required the Board to adopt a resolution articulating its findings and conclusions, and it did so.
We now turn to plaintiffs' argument that the Board's action was arbitrary, capricious, or unreasonable.
"It is well-settled that a decision of a zoning board may be set aside only when it is 'arbitrary, capricious or unreasonable.'" Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)). "[B]ecause of their peculiar knowledge of local conditions, " local boards are "allowed wide latitude in the exercise of their delegated discretion." Booth v. Bd. of Adjustment, 50 N.J. 302, 306 (1967). A board's actions are thus presumed valid, and "the party attacking such action has the burden of proving otherwise." N.Y. SMSA Ltd. P'ship v. Bd. of Adjustment, 324 N.J.Super. 149, 163 (App. Div.), certif. denied, 162 N.J. 488 (1999). "Accordingly, [an appellate court] will not disturb a board's decision unless [it] finds a clear abuse of discretion." Cell S., supra, 172 N.J. at 82. In determining whether a board properly exercised its discretion, "[c]ourts 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).
Under N.J.S.A. 40:55D-70(c)(2), a board of adjustment is given the power to grant variances as follows:
where 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, [a board may] 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 . . . .
This provision, which was added in 1984 to broaden the subsection (c) variance, allows for "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. "The Legislature undoubtedly intended through the c(2) variance to vest a larger measure of discretion in local boards in a limited area of cases." Id. at 566.
The grant of a c(2) variance "must be rooted in the purposes of zoning and planning itself and must advance the purposes of the [Municipal Land Use Law (MLUL)].". Idat 562.
[T]he application for a variance under [c(2)] requires:
(1) [that it] relates to a specific piece of property; (2) that the purposes of the Municipal Land Use Law would be advanced by a deviation from the zoning ordinance requirement; (3) that the variance can be granted without substantial detriment to the public good; (4) that the benefits of the deviation would substantially outweigh any detriment and (5) that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance.
[Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405 N.J.Super. 189, 198 (App. Div. 2009) (alteration in original) (quoting Cox, N.J. Zoning & Land Use Administration 143 (2008)).]
We reject plaintiffs' argument that the Board's actions were arbitrary, capricious, and unreasonable (1) because the Board members who voted in favor of approval did not specifically voice the reasons reflected in the resolution memorializing their decision and (2) because some of the statements by members of the Board were insufficient or not appropriate reasons for granting a variance. As outlined above, we look to the Board's resolution rather than the statements of individual members in reviewing the Board's action. N.Y. SMSA, supra, 370 N.J.Super. at 333-34.
On the merits, we affirm the Law Division's dismissal of plaintiffs' action essentially for the reasons stated by Judge Lawrence M. Lawson in his thoughtful, comprehensive written opinion of July 6, 2012, adding only the following.
The applicable standard of review is not whether we believe the Board reached the right decision, but only whether the decision reached by the Board finds support in the record and is consistent with applicable law. That reasonable minds could differ on the merits is also not determinative, especially in light of the deference owed by us to the Board's extensive knowledge of local conditions.
Mehnert's expert testified before the Board that the master plan sought to encourage year-round single-family homes and to maintain the single-family nature of the neighborhood. He also testified that the Master Plan "identifies the provision of off-street parking as a paramount concern, " which was confirmed by plaintiffs' expert. The master plan also encouraged aesthetically pleasing development, which is identified as a purpose of the MLUL. See N.J.S.A. 40:55D-2(i). Consequently, there is evidence in the record to support the positive criteria discussed in the resolution.
With respect to the negative criteria, the Board also relied on the testimony of Mehnert's expert, which the Board had every right to do. Bd. of Educ. v. Zoning Bd. of Adjustment, 409 N.J.Super. 389, 434 (App. Div. 2009). The Board further relied on the fact that Mehnert addressed many of the neighbors' concerns through changes to her proposal. Those changes included replacing the planned garage with a carport, narrowing the house, lowering the roof, lowering the front porch, narrowing the front stairway, eliminating a balcony, and relocating the air conditioner. The Board's finding that there would be no "deleterious impact" and "a substantial benefit to the public good" from "a low density, high value use" was, as Judge Lawson determined, supported in the record.