DOROTHY OEHLKE et al. v. FRANKFORD TOWNSHIP LAND USE BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4981-04T34981-04T3

DOROTHY OEHLKE and PAUL OEHLKE,

Plaintiffs-Appellants,

v.

FRANKFORD TOWNSHIP LAND USE BOARD,

Defendant-Respondent,

and

MARIA PADULA AND GUIDO PADULA,

Third-Party Defendants-Respondents.

_______________________________________________________________

 

Argued March 14, 2006 - Decided August 21, 2006

Before Judges Kestin, Lefelt and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, L-357-04.

William T. Haggerty argued the cause for appellants Dorothy and Paul Oehlke (Dolan and Dolan, attorneys; Mr. Haggerty, on the brief).

Michael S. Garofalo argued the cause for respondent Frankford Township Land Use Board (Laddey, Clark & Ryan, attorneys; Richard I. Clark, on the brief.)

Gruber, Colabella, Liuzza, Kutyla & Ullmann, attorneys for Maria and Guido Padula, third-party respondents (John D. Williams, attorney; join in the arguments and brief of respondent Frankford Township Land Use Board.

PER CURIAM

Plaintiffs, Dorothy Oehlke, and her son, Paul, appeal from the April 19, 2005 order of judgment entered in accordance with findings of fact and conclusions of law made by Judge B. Theodore Bozonelis on the record on April 5, 2005. That order of judgment dismissed with prejudice plaintiffs' complaint in lieu of prerogative writs and upheld the conditional variance granted by defendant Frankford Township Land Use Board (the Board), pursuant to the Nash Doctrine. Nash v. Bd. of Adj. of Morris Twp., 96 N.J. 97 (1984). See also Davis Enters. v. Karpf, 105 N.J. 476 (1987).

In Nash, the Court stated:

After an applicant has satisfied both the positive and negative criteria, a Board of Adjustment or court may grant a conditional variance, an equitable remedy, that affords the adjoining property owners the opportunity to purchase the property for its fair market value. When an adjoining property owner is willing to pay a fair and reasonable price for the property, the applicant may either sell or retain the property. Should the applicant decide to retain the property, however, the court could find that since he is able to receive full price for the property, exceptional hardship no longer exists and, therefore, the requested variance should not be granted. If no fair and reasonable offer is made, however, the hardship continues to exist and, therefore, the court should grant the variance.

[Nash, supra, 96 N.J. at 106.]

Consistent with that reasoning, the Board granted and the court upheld a conditional variance and required plaintiffs to accept or reject an offer by the owners of the adjoining lot, intervenors Guido and Maria Padula, to purchase plaintiffs' lot at a price determined by the Board to represent the fair market value of the lot with a variance. The order of judgment specified that if plaintiffs were to accept the offer, the parties were to close title within sixty days. If they were to reject the offer, the variances granted by the Board would lapse and be void. In this appeal, plaintiffs contend the court was correct in upholding the Board's grant of the variance, but that the imposition of the condition pursuant to Nash was an abuse of discretion. We disagree.

The property in question had been owned by the Oehlkes since the 1950s. The lot is 1.01 acres in size with a depth of 73 feet, a front yard set back of 24.30 feet, and a rear yard set back of 30 feet. Although the Oehlkes had trailers on the lot at one time, those trailers were removed in the mid-1980s and, with the exception of picnic tables, the lot has remained vacant since that time. The property is a lakefront lot located at Lake Owassa in Frankford Township in the agricultural-residential (A-R) zone.

Over the years, the minimum square footage requirement for single family dwellings in the zone was changed from one acre to two acres and, eventually, to five acres as of the time of plaintiffs' application for a variance to construct a single family residence on the lot. Township Ordinance No. 2003-07 states that the minimum lot size is "[five] acres without environmental sensitive area calculations." In its resolution, the Board noted that in addition to the deficient lot area, the lot needed variances for lot depth, front and rear yard, as well as planning variances. The front yard setback requirement was 75 feet; 24.30 feet were provided. The rear yard setback requirement was 75 feet; 30 feet were provided. The minimum lot depth requirement was 300 feet; 73 feet were provided. In addition, the lot was significantly affected by wetlands which would have limited the placement of the structure on the property.

Notwithstanding the minimum lot size of five acres, Section 4 of the applicable ordinance provides grandfather provisions that exempt non-conforming lots that had been approved by the Township as recorded at the time of the passage of the ordinance. Under that section of the ordinance, a variance is not required, so long as such non-conforming lot is a minimum of one acre and provided that the minimum requirements for development of such one acre lots, as set forth in the ordinance, are met. The Oehlkes' proposal does not and, due to wetland restrictions, cannot meet dimensional requirements for the minimum front yard setback, minimum rear yard setback and minimum lot depth.

Upon consideration of the merits of the application, the Board concluded that the applicant had satisfied the positive and negative criteria, however, during the pendency of the Oehlkes's application for the variance, intervenors Maria and Guido Padula, who own a home on a similar parcel of land adjacent to the Oehlke property, indicated their willingness to purchase the Oehlke property at fair market value. Because the parties could not agree on the fair market value, the Board considered their respective appraisals and ultimately determined that the fair market value of the property was $150,000. Under the circumstances, the variance was granted subject to the Nash doctrine.

The Padulas promptly made a good faith deposit to be held in an attorney's trust account pending plaintiffs' acceptance or rejection. The Padulas commenced proceedings in the Chancery Division, Sussex County, by order to show cause with temporary restraints, to enjoin plaintiffs from further development activities on the property and to require plaintiffs to show cause why the restraints should not be continued pending plaintiffs' acceptance or rejection of the offer of purchase. Thereafter, plaintiffs filed their complaint in lieu of prerogative writs, after which the Padulas voluntarily withdrew their order to show cause and were permitted, by consent order, to intervene as third-party defendants in the prerogative writs action.

On April 5, 2005 Judge Bozonelis held a hearing in the matter and determined, for reasons stated on the record, that the Board had properly interpreted the ordinance when it determined that, under the grandfather clause of Section 4, unimproved non-conforming lots are required to have a minimum of one acre and they must meet the minimum setback requirements and other dimensional requirements for the one acre standards. He also determined that the Board, after finding that the applicant met the positive and negative criteria, acted within its discretion to invoke the Nash doctrine and to fix a fair market value of $150,000 for the lot.

 
We are satisfied that the judge made a careful review of the proceedings before the Board and properly recognized that "[i]n balancing the interest of the property owner, adjacent owners, and the municipality, a board may impose reasonable conditions on the grant of a variance." Davis, supra, 105 N.J. at 481 (citing Nash, supra, 96 N.J. at 105). "In its discretion, a board may recognize an offer [by owners of land adjoining vacant residential land that requires a variance before the property is useable] to purchase the property at fair market value by imposing on the grant of a variance a condition subsequent for the benefit of an adjoining owner." Id. at 482. The Board's decision is entitled to substantial deference and "the proper scope of judicial review" is "to determine whether the board could reasonably have reached its decision." Id. at 485. "Such a decision is presumed valid and should not be set aside unless it is arbitrary, capricious, or unreasonable." Ibid. For substantially the reasons expressed by Judge Bozonelis in his thorough analysis and review of the proceedings before the Board, we affirm.

Affirmed.

The resolution of the Board memorialized on April 28, 2004, states "the lot is undersized as two acres are required in the A-R zone." As previously noted, the subject lot is 1.01 acres.

Appropriately, that fair market value was based on the assumption that a variance had been granted to build on the lot. Nash, supra, 97 N.J. at 107; Jock v. Zoning Bd. of Adj. of the Twp. of Wall, 184 N.J. 562, 575 n.2 (2005).

(continued)

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A-4981-04T3

 

August 21, 2006