DL REAL ESTATE HOLDING COMPANY, LLC v. POINT PLEASANT BEACH PLANNING BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3867-04T53867-04T5

DL REAL ESTATE HOLDING

COMPANY, LLC,

Plaintiff-Appellant,

v.

POINT PLEASANT BEACH

PLANNING BOARD,

Defendant-Respondent.

_______________________________________

 

Submitted October 24, 2005 - Decided

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. OCN-L-1728-04 PW.

Sinn, Fitzsimmons, Cantoli, West & Pardes, attorneys for appellant (Kenneth B. Fitzsimmons, of counsel; Steven A. Pardes, on the brief).

King, Kitrick & Jackson, attorneys for respondent (Charles W. Hutchinson, on the brief).

PER CURIAM

Plaintiff D.L. Real Estate Holdings Company, LLC appeals from a final judgment entered on February 28, 2005, which affirmed a determination of defendant Point Pleasant Beach Planning Board denying plaintiff's application for preliminary and final subdivision approval. We affirm.

Plaintiff is the owner of a vacant tract of land in the Borough of Point Pleasant Beach, specifically block 179.02, lots 10, 11 and 12. Plaintiff's lots are located east of Lake Avenue and west of Ocean Avenue, to the south of Carter Avenue. Plaintiff sought the Board's approval to subdivide the property into thirteen lots for the construction of single family detached dwellings. Plaintiff proposed the construction of a private roadway in the subdivision, which would run east and west between Lake Avenue and Ocean Avenue. Nine of the proposed thirteen lots would front onto the private roadway.

The application was reviewed by the Board's engineer, Raymond W. Savacool, P.E., and he provided the Board with a report dated March 3, 2004 in which he noted that under the Borough's development ordinance, each principal building "shall face a public street and shall be built upon a lot with frontage on a public street which has been improved in accordance with" the Borough's standards. Savacool stated that nine of the proposed lots required variances from the Borough's development ordinance. Five of these lots did not satisfy the lot frontage requirements. Four lots did not meet the required 100 feet minimum lot depth and four lots did not satisfy the 30 feet minimum required for the rear yards. Savacool stated that if one of the proposed lots was eliminated, and all lots were fronted along Ocean Avenue and Lake Avenue, the subdivision would be in compliance with the zoning requirements and no variances would be required. Savacool also "strongly recommended" that the subdivision not provide for a through street unless the plan was revised to provide a standard full-width municipal roadway.

The Board conducted a hearing on March 8, 2004 and voted to deny the application. The Board adopted a resolution in which it concluded that variances were required for the subdivision and the variances could not be granted "without substantial detriment to the public good". The Board further found that the benefits from the variances would not outweigh the detriments that would result from such relief. The Board determined that the proposed private lane would be "undesirable" because it would disrupt the character of Lake Avenue, and would result in increased traffic on Lake Avenue. The Board additionally found that the reduction of the subdivision to twelve lots, with six fronting on Ocean Avenue and six fronting on Lake Avenue would conform to the zoning requirements and "would be more in accord with the character of the surrounding neighborhood and Point Pleasant Beach in general."

Plaintiff filed an action in lieu of prerogative writs in the Law Division seeking reversal of the Board's determination. The trial court held a hearing on February 10, 2005 and rendered an oral decision from the bench in which he found that plaintiff had not established that the Board's denial of subdivision approval was arbitrary, capricious or unreasonable. Judgment was entered on February 28, 2005 affirming the Board's determination and this appeal followed.

Plaintiff argues that 1) the Board incorrectly interpreted the ordinance to require that plaintiff obtain variances for the approval of its thirteen lot subdivision; and 2) assuming that the Board was correct in its interpretation of the ordinance, the Board's decision to deny the variances and subdivision approval was arbitrary, capricious and unreasonable. We have carefully considered these contentions and thoroughly reviewed the record. We are convinced that plaintiff's contentions are without merit and we therefore affirm substantially for the reasons stated by the trial judge in his oral decision from the bench on February 10, 2005. We add the following.

Plaintiff argues that it was permitted by the development ordinance to use a private roadway in the subdivision and, with such a roadway, variances were not required. We disagree. Plaintiff's property is in the SF-5 zone for single family residential districts. Section 19-9.1 of the ordinance sets forth the restrictions that apply in the SF-5 zone. Section 19-9.1(d) provides in pertinent part that:

Notwithstanding the other provisions of this chapter, in order to promote design flexibility and preserve unique site features, the planning board may consider the grant of bulk waivers and design waivers or exceptions for development in that portion of the SF-5 zone east of Lake Avenue and south of Carter Avenue utilizing the following guidelines in the consideration of such variances and/or waivers....

The "guidelines" include the following:

1. Building lots may be created which front on and are accessed by a private roadway meeting the following minimum standards:

(a) Eighteen (18) feet pavement width with a roll type curb;

(b) Pavement section to be in accordance with municipal design standards;

(c) The proposed private roadway provides adequate access to building lots for municipal and emergency services, including adequate turn-around facilities, if necessary[;]

(d) Adequate measures are provided to insure the continued private ownership and maintenance of the roadway; and

(e) All required setbacks, lot area calculations, etc. for lots fronting on such private roadway shall be measured from the closest physical edge of the roadway.

Contrary to plaintiff's assertions, the ordinance states in clear and unambiguous terms that the Board may consider granting bulk variances and design waivers or exemptions "in order to promote design flexibility and preserve unique site features." In our view, the trial judge correctly interpreted the ordinance as placing the burden on the applicant to establish, in the first instance, that the proposed use of the private roadway meets this regulatory threshold.

Moreover, the judge correctly determined that plaintiff had not shown that the proposed construction of the private road was for the purpose of preserving any "unique site features." The Board expressly found to the contrary, stating in its resolution that there were no particular unique site features that would justify use of the private road. As the trial judge correctly found, there was sufficient evidence in the record to support the Board's findings.

Plaintiff also argues that, if variances are required for its proposed thirteen lot subdivision, the Board erred by failing to grant those variances. Under N.J.S.A. 40:55D-70(c)(1), a variance may be granted when, because of exceptional narrowness, shallowness or shape of a piece of property, exceptional topographic conditions, or an extraordinary and exceptional situation uniquely affecting a specific piece of property, strict application of the zoning requirements would result in "peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon" the developer of property. Ibid. A variance also may be granted under N.J.S.A. 40:55D-70(c)(2) when the purposes of the Municipal Land Use Law would be advanced by a deviation from the zoning restrictions and "the benefits of the deviation would substantially outweigh any detriment" from the deviation. Ibid. A variance or other relief may not be granted "without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70(d).

We are satisfied that the Board's decision to deny variance relief under N.J.S.A. 40:55D-70(c)(1) was not arbitrary, capricious or unreasonable. There was ample support in the record for the Board's finding that there were no exceptional topographic conditions or extraordinary circumstances affecting the property that would result in either "exceptional practical difficulties" or a "hardship" to the developer. N.J.S.A. 40:55D-70(c)(1). Indeed, it is undisputed that the property can be developed with twelve rather than thirteen lots and the twelve lot subdivision would conform in all respects with the applicable zoning restrictions. In these circumstances, variance relief under N.J.S.A. 40:55D-70(c)(1) was properly denied.

In addition, there is substantial evidence in the record to support the Board's finding that the variances could not be granted without substantial detriment to the public good, and the benefits from the requested variances would not substantially outweigh the detriment resulting from a deviation from the zoning restrictions. Here the Board found that use of the private road would have a substantial negative impact upon the traffic in the vicinity of the proposed subdivision. The Board determined that the private road would result in a "greater sense of crowding" because the private road would not be a "full width public street." Furthermore, the Board determined that the proposed thirteen lot subdivision would result in a reduction in air, light and open space. Based on these findings, the Board's decision to deny relief under N.J.S.A. 40:55D-70(c)(2) cannot be considered arbitrary, capricious or unreasonable.

 
Affirmed.

(continued)

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November 10, 2005