FOUR MILE BRANCH ASSOCIATES, LLC v. TOWNSHIP OF MONROE PLANNING BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3870-04T53870-04T5

FOUR MILE BRANCH ASSOCIATES,

LLC,

Plaintiff-Appellant,

v.

TOWNSHIP OF MONROE PLANNING

BOARD,

Defendant-Respondent.

 

Submitted October 25, 2005 - Decided March 7, 2006

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1163-04.

The D'Elia Law Firm, attorneys for Appellant (Vincent D'Elia and Teresa M. Lentini, on the brief).

Slotnick & Schwartz, attorneys for respondent (Leonard T. Schwartz, on the brief).

PER CURIAM

Plaintiff Four Mile Branch Associates, LLC (FMBA) appeals from the February 23, 2005 order of the Law Division granting judgment in favor of defendant Township of Monroe Planning Board in this prerogative writs action. We affirm.

FMBA owns a thirty-one acre tract in Monroe. In 2002, FMBA sought Preliminary Major Subdivision approval, along with variances and waivers needed to develop the tract for thirty-five single-family residences. Included in that application were requested variances from minimum lot requirements for all of the lots, variances from minimum lot frontage for several of the lots, variances from the minimum lot width for most of the lots, variances from the side yard setback requirements for two of the lots and a general variance from rear yard setback and buffer requirements.

Public hearings on the application were conducted in September and October 2002. At a hearing on October 24, 2002, the Board first voted to grant the request for minimum lot size variances for some, but not all, of the proposed building lots. The Board then voted to grant the requested variance from minimum lot frontage requirements for nine of the lots. The next aspect of the application requested a variance from the minimum lot width requirement for thirty-four of the lots. The Board voted to deny that variance request in its entirety.

At that point, counsel for FMBA stated on the record that because of the denial of the requested variance from the lot width requirement, "we're dead in the water." He then said, in response to an inquiry from the Planning Board, that the applicant was not withdrawing its application, but that the adverse vote on the lot width variance was, effectively, a denial of the application. In response to the advice of its attorney, however, the Board proceeded to consider the application's remaining requests for variances. The Board voted to deny the requested rear yard setback variances and it voted to approve the requested side yard setback variances for five lots. Rather than separately consider the applications for waivers as well, the Board then voted to deny the application for Preliminary Major Subdivision. The Board's findings and conclusions were memorialized in its January 9, 2003 resolution.

In July 2003, FMBA filed a second application relating to the property. The second application also sought Preliminary Major Subdivision approval, but included fewer proposed lots so as to eliminate the need for the variances that the Board had denied when it considered the 2002 application. Nevertheless, the second application was not conforming and the variances that had been the subject of the affirmative votes in 2002 were necessary for the project to be completed as proposed. As a part of its second application, FMBA described the required minimum lot size and frontage variances as having been previously granted.

Prior to the Board's consideration of the 2003 application, counsel for the Board advised FMBA that the variances that had been granted in 2002 did not run with the land, that they were therefore ineffective, and that FMBA would need to request these variances again as part of the new application. Following a hearing on April 22, 2004, the Board voted to deny the second application for Preliminary Major Subdivision approval and to deny each of the requested variances, including those that were identical to the ones for lot size and frontage that had been granted in 2002.

FMBA's complaint in lieu of prerogative writs challenged the Board's determination that the variances granted in 2002 had not remained valid and attacked the Board's denial of the application for Preliminary Major Subdivision approval as arbitrary, capricious and unreasonable. On February 23, 2005, Judge George H. Stanger, Jr., dismissed the complaint, setting forth his reasons on the record. He concluded that the 2002 variances had only been granted subject to and conditioned on the grant of the then-pending application for Preliminary Major Subdivision approval. Because those variance requests were only considered as part of the subdivision application and because the application was not bifurcated, the grant of those variances did not survive the denial of the 2002 subdivision application. In addition, Judge Stanger concluded that neither the decision of the Board to deny the 2003 application nor its decision to deny the requested variances were arbitrary or capricious. Instead, he found that each of these decisions was supported by substantial evidence in the record.

On appeal, FMBA argues that the language of the 2002 resolution unconditionally granted certain of the requested variances, that the 2002 application was bifurcated during the course of that hearing, that the disputed variances run with the land, and that both the Board's 2004 denial of the application for Preliminary Major Subdivision approval and its denial of the previously-granted variances were arbitrary, capricious and unreasonable. We have considered these arguments in light of the record and the applicable legal principles and find them to be unpersuasive. We therefore affirm.

In 2002, FMBA sought the variances only as a part of its application for Preliminary Major Subdivision approval. See N.J.S.A. 40:55D-48, -60. In general, the Board lacks the authority to act on requests for variances apart from either a subdivision, site plan or conditional use application. See Chicalese v. Monroe Twp. Planning Board, 334 N.J. Super. 413, 422 (Law Div. 2000)(citing Bridge v. Neptune Twp. Zoning Bd. of Adjustment, 233 N.J. Super. 587, 596-97 (App. Div. 1989)). Although FMBA could have filed two requests, one for the needed variances, contingent on the subsequent application of subdivision approval, and a second for the approval of the subdivision itself, or could have sought to bifurcate the single request into its component parts, see N.J.S.A. 40:55D-60, it did not do so. As a result, the decision of the Board in 2002 to deny the subdivision application operated to extinguish the variance requests that it had previously voted on favorably.

We disagree with the argument raised by FMBA that the comment by its attorney to the effect that the application was "dead in the water" after the Board voted to deny some of the requested variances in 2002 operated to effect a bifurcation of the overall application. Similarly, to the extent that FMBA argues that by filing its second application it effected a bifurcation, we find no statutory ground permitting it to do so. In particular, the second application was not a renewed application, nor was it a request for a reconsideration of the earlier application. Rather, the 2004 application was an entirely independent application for Preliminary Major Subdivision approval with associated variances.

Nor do we find merit in FMBA's argument that the variances voted on favorably as a part of its 2002 application ran with the land. The seminal decision respecting variances that run with the land, Stop & Shop v. Board of Adjustment, 162 N.J. 418 (2000), does not suggest that a variance granted as part of a hearing that ends with a denial of the related subdivision application survives that adverse determination. Rather, the Supreme Court there concluded that a use variance pursuant to which a split zone was permitted to be developed for a department store ran with the land so as to permit a subsequent purchaser to operate a supermarket on the same site and in the same building. Id. at 432-33. Central to that decision, however, was the fact that the department store had been built, the use variance had, in essence, been acted upon, and it became available to the applicant's successors. Id. at 433.

No similar analysis supports FMBA's contention here. The Planning Board does not operate in a vacuum and cannot act on variance applications apart from the more general subdivision application to which those requests relate. See generally, N.J.S.A. 40:55D-60. In the facts and circumstances of this appeal, the Board's decision respecting the variances in 2002 could only have taken place in the context of the failed application for the subdivision approval.

We reject, as well, the argument that the Board's decision in 2004 to deny the second application for Preliminary Major Subdivision approval and to reject the renewed variance requests was arbitrary or capricious. The scope of our review of these decisions is narrow. We accord deference to the expertise and broad discretion of the municipal board, reversing only if the decision or action is arbitrary, capricious or unreasonable. See Booth v. Board of Adjustment of Rockaway Twp., 50 N.J. 302, 306 (1967); Kramer v. Board of Adjustment of Sea Girt, 45 N.J. 268, 296-97 (1965).

In particular, we give greater deference to decisions that deny applications for variances, because we recognize that granting variances tends to impair zoning objectives, see Cerdel Constr. Co. v. Twp. Comm. of East Hanover, 86 N.J. 303, 307 (1981), and because we have concluded that citizens who serve on such boards are best equipped to address the concerns that arise from variance applications. See Medical Ctr. at Princeton v. Twp. of Princeton Zoning Bd., 343 N.J. Super. 177, 198 (App. Div. 2001)(citing Ward v. Scott, 16 N.J. 16, 23 (1954)); Hawrylo v. Bd. of Adjustment, 249 N.J. Super. 568, 578 (App. Div. 1991). We do not substitute our view of the application for that of the Board, but instead we determine whether the action of the Board can be sustained. See Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990); Fallone Properties, L.L.C. v. Bethlehem Twp. Planning Bd. 369 N.J. Super. 552, 561 (App. Div. 2004).

Our review of this record, undertaken in accordance with these precedents, compels us to agree with Judge Stanger's determination that the 2004 decision of the Board to deny both the subdivision application and the request for the associated variances was neither arbitrary nor capricious. We reject the argument that merely because the Board had approved certain variances in 2002, its subsequent decision to deny those requests was arbitrary. The composition of the Board had changed dramatically in the interim between the two applications. Board members expressed concern that the proposed development would be dissimilar in significant ways from the immediately adjacent residential subdivisions. Finally, members of the Board expressed their concern about granting variances for a tract that could be developed in full compliance with all of the applicable requirements of the local zoning ordinance. Under these circumstances, FMBA's argument on appeal impermissibly asks us to substitute its view of an appropriate subdivision and of appropriate variances for that of the Board. We decline to do so.

 
Affirmed.

The transcript of the October 2002 hearing includes a further comment by counsel in which he refers to a decision to withdraw. The transcript, however, reports that the words that followed that comment were indecipherable. The transcript offers no explanation about whether counsel intended to withdraw the entire application or only the application as it related to the subdivision. We do not understand the partially-recorded comment about withdrawing to be a request for bifurcation, assuming, without deciding, that the statute would permit an applicant to retroactively seek bifurcation in the face of certain denial of the application for a subdivision.

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A-3870-04T5

March 7, 2006