ROBERT SHEA et al. v. LOWER TOWNSHIP PLANNING BOARD, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6764-04T26764-04T2

ROBERT SHEA and LEIGH SHEA,

Plaintiffs-Respondents,

v.

LOWER TOWNSHIP PLANNING BOARD,

Defendant-Respondent,

and

DR. AND MRS. FRANK WEST,

Defendants/Intervenors-

Appellants.

________________________________________

 

Argued September 12, 2006 - Decided October 16, 2006

Before Judges Skillman, Holston, Jr. and Grall.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-156-03.

Julius N. Konschak argued the cause for appellants (Serber Konschak, attorneys; Amy L. Houck, on the brief).

Louis C. Dwyer, Jr. argued the cause for respondents Robert Shea and Leigh Shea (Corino & Dwyer, attorneys; Mr. Dwyer, Jr., on the brief).

Paul J. Baldini argued the cause for respondent Lower Township Planning Board.

PER CURIAM

Intervenors, Dr. and Mrs. Frank West, appeal from a final judgment of the Law Division, which reversed the denial by defendant Lower Township Planning Board of an application by plaintiffs Robert and Leigh Shea for subdivision approval and the grant of associated bulk variances.

Plaintiffs are the owners of a 2.814 acre lot on Sunset Boulevard in Lower Township. This lot was created by a three-lot subdivision for which plaintiffs' predecessor in title, Andrew Knopp, secured approval in 1975. The other two lots created by this subdivision are approximately the same size as plaintiffs' lot. Intervenors are the owners of one of those two lots.

The three lots all have frontage on Sunset Boulevard and are approximately 900 feet deep. All three lots are occupied by single-family residences, although intervenors' lot is also occupied by a second building used for residential purposes, which the parties referred to as a mother-in-law suite.

The Lower Township zoning ordinance requires a minimum 150 foot frontage for any lot in the zoning district in which the three lots are located. The zoning ordinance also requires a minimum of one acre for residential development. All three lots are approximately three acres in size and thus substantially exceed this requirement.

Plaintiffs propose to subdivide their lot into two lots, each of which would be larger than the required one-acre minimum lot size. One proposed lot, on which plaintiffs' current residence is located, would have a 150-foot frontage on Sunset Boulevard and thus satisfy the 150-foot frontage requirement of the zoning ordinance. The second would be a flag lot, with only a 40-foot frontage on Sunset Boulevard.

Plaintiffs applied to the Lower Township Planning Board for minor subdivision approval and a bulk variance for the proposed 40-foot frontage of the flag lot. Plaintiffs also applied for minor width variances for both proposed lots. Plaintiffs plan to construct a new house on the flag lot in which they would reside.

The Board denied plaintiffs' application, concluding that plaintiffs had failed to demonstrate sufficient hardship for granting the requested variances or that such variances could be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the municipality's zone plan and zoning ordinance.

On March 19, 2003, plaintiffs sent a letter to the Board requesting reconsideration of the denial of their application. Before the Board acted upon the request, plaintiffs brought this action in lieu of prerogative writs in the Law Division challenging the denial of their application. The trial court granted the Wests' motion to intervene. The intervenors subsequently moved to enjoin the Board from reconsidering plaintiffs' application, which the court denied.

The Planning Board voted to treat plaintiffs' application for reconsideration as a new application and to rehear the matter because the Department of Environmental Protection (DEP) and an adjoining municipality, the Borough of West Cape May, had not received notice of the plaintiffs' original application. The Board subsequently conducted an additional four days of hearings at which both the DEP and West Cape May presented evidence in opposition to the application.

Based on the evidence presented at the second hearing, the Planning Board reversed itself and voted to approve plaintiffs' application for subdivision approval and the required bulk variances. In the resolution memorializing this approval, the Board stated that the applicant had demonstrated sufficient hardship for the granting of the requested variances and that the variances could be granted without substantial detriment to the public good and would not substantially impair the intent and purpose of the Lower Township zone plan and zoning ordinance.

The trial court concluded in a written opinion that the Board's decision to grant plaintiffs a second hearing regarding their subdivision application was arbitrary and capricious. Therefore, the court reversed the Board's second resolution granting plaintiffs' application for subdivision approval and the associated variances and reinstated the first resolution that had denied their application. The court then directed the parties to submit briefs regarding the merits of plaintiffs' challenge to the first resolution.

The trial court subsequently concluded in a second opinion that the Board's first resolution denying plaintiffs' application was arbitrary and capricious and that subdivision approval and the associated bulk variances should have been granted. In concluding that plaintiffs had established the hardship required for the grant of variances under N.J.S.A. 40:55D-70c(1), the court stated:

It is clear that the extent to which the Property can be utilized absent the granting of the subdivision and variances is significantly limited. There is no legal or factual rationale for requiring plaintiffs to maintain one residence on a 2.8 acre parcel, when the Property, which is an unusual shape and extremely narrow in the back, can sustain the construction of a home on each of two lots neither of which requires a variance for lot area. It is patently clear that the plaintiffs have met their burden of proof with regard to demonstrating hardship pursuant to the statute.

Intervenors appeal from the judgment memorializing the trial court's reversal of the Board's initial denial of plaintiffs' application. Neither plaintiffs nor the Board have cross-appealed from the order reversing the Board's second resolution granting plaintiffs' application. Consequently, that decision is not before us on this appeal.

We conclude that any hardship to plaintiffs as a result of the denial of their application for subdivision approval and the required bulk variances is a self-created hardship resulting from the subdivision plan of their predecessor in title. Therefore, we reverse the judgment of the trial court determining that that denial was arbitrary and capricious.

Plaintiffs' variance application was considered solely under N.J.S.A. 40:55D-70c(1), which provides in pertinent part:

The board of adjustment shall have the power to:

. . . .

c. (1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to article 8 of this act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship;

. . . .

No variance or other relief may be granted under the terms of this section,

. . . 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 the purpose of the zone plan and zoning ordinance.

In determining whether a property owner is entitled to a variance under N.J.S.A. 40:55D-70c(1), "[i]t is appropriate to consider first the origin of the existing situation. If the property owner or his predecessor in title created the nonconforming condition, then the hardship may be deemed to be self-imposed." Commons v. Westwood Zoning Bd. of Adjustment, 81 N.J. 597, 606 (1980); accord Jock v. Zoning Bd. of Adjustment of Twp. of Wall, 184 N.J. 562, 590-91 (2005); see also Branagan v. Schettino, 100 N.J. Super. 580, 587-88 (App. Div. 1968).

The origin of the current three-acre size and configuration of plaintiffs' property was the subdivision plan of plaintiffs' predecessor in title, Knopp, which was approved in 1975. Knopp owned an approximately nine-acre lot, with an approximately 500-foot frontage on Sunset Boulevard and a depth of approximately 900 feet. Since the required minimum lot size for residential development is only one acre, Knopp could have applied for approval of an eight or nine lot residential subdivision. However, such a subdivision undoubtedly would have required the construction of new interior roadways. For this reason or other reasons not revealed by the record, Knopp decided to subdivide his property into only three lots. Therefore, whatever hardship plaintiffs may experience due to the inability to subdivide their lot into two lots is not the result of "exceptional narrowness, shallowness or shape[,] . . . exceptional topographic conditions or physical features[,] . . . or extraordinary and exceptional situation uniquely affecting [their property]," N.J.S.A. 40:55D-70c(1), but instead their predecessor-in-title's deliberate decision to subdivide his property into three lots that are triple the size required for residential development. This deliberate decision created a self-imposed hardship that precludes the grant of a variance under N.J.S.A. 40:55D-70c(1). See Ketcherick v. Borough of Mountain Lakes Bd. of Adjustment, 256 N.J. Super. 647, 653-56 (App. Div. 1992).

Plaintiffs also argue, as an alternative ground for affirmance, that they demonstrated their entitlement to the requested variances under N.J.S.A. 40:55D-70c(2). However, plaintiffs' application to the Board stated that they were seeking a two lot minor subdivision and a "hardship variance" under N.J.S.A. 40:55D-70c(1). Furthermore, even though plaintiffs' attorney asserted during the hearing on the application that plaintiffs also were relying on N.J.S.A. 40:55D-70c(2) and the introductory recitations in the Board's resolution denying plaintiffs' application include a statement that plaintiffs "seek[] variance relief under c-1 and c-2," the concluding paragraph of the resolution refers to plaintiffs' application as solely for a "hardship variance," and the Board made no findings regarding an application for a variance under N.J.S.A. 40:55D-70c(2). Similarly, the trial court decision reversing the denial of plaintiffs' application is based solely on N.J.S.A. 40:55D-70c(1) and does not consider whether plaintiff would be entitled to relief under N.J.S.A. 40:55D-70c(2). Under these circumstances, it would not be appropriate for this court to exercise original jurisdiction and determine whether plaintiffs established their entitlement to a variance under N.J.S.A. 40:55D-70c(2).

Additionally, we note that both the plaintiffs and the objectors presented substantially more evidence relevant to plaintiffs' entitlement to a variance under N.J.S.A. 40:55D-70c(2) at the second than at the first hearing. This additional evidence included the presentation of testimony and documentary evidence by the DEP and West Cape May, neither of which participated in the first hearing, allegedly because plaintiffs failed to give them the statutorily required notice of the hearing. Therefore, any decision regarding plaintiffs' entitlement to a variance under N.J.S.A. 40:55D-70c(2) should be based on a complete record, including the evidence presented by the DEP and West Cape May. Moreover, it is the responsibility of the Board, not the court, to determine in the first instance whether this evidence establishes plaintiffs' entitlement to a variance under N.J.S.A. 40:55D-70c(2).

Finally, because this case must be remanded to the Board, we consider it necessary to comment upon the Board's resolutions following the first two hearings. Both resolutions have the same format. They contain lengthy summaries of the evidence presented at the hearings, followed by conclusionary findings that parrot the language of N.J.S.A. 40:55D-70c(1). The only difference in the two resolutions is that the conclusionary findings in the first resolution were adverse to plaintiffs (e.g., "The Board has determined that applicant has not demonstrated a sufficient hardship for the granting of the requested variances"), while the conclusionary findings in the second resolution supported the grant of the requested variances (e.g., "The Board had determined that applicant has demonstrated a sufficient hardship for the granting of the requested variances").

"Denial of a variance on a summary finding couched in the conclusionary language of the statute is not adequate." Harrington Glen, Inc. v. Municipal Bd. of Adjustment of Borough of Leonia, 52 N.J. 22, 28 (1968). "There must be a statement of the specific findings of fact on which the Board reached the conclusion that the statutory criteria for a variance were not satisfied." Ibid. "Moreover, the board must explain how its findings support its ultimate legal conclusions." Morris County Fair Housing Council v. Boonton Twp., 228 N.J. Super. 635, 647 (Law Div. 1988). A board has the same obligation to make specific findings of fact and conclusions of law when it grants a variance. See Medici v. BPR Co., 107 N.J. 1, 23 (1987); Smith v. Fair Haven Zoning Bd. of Adjustment, 335 N.J. Super. 111, 123 (App. Div. 2000). The Board's decision on remand must comply with these basic requirements.

 
Accordingly, the final judgment of the Law Division is reversed and the case is remanded to the Lower Township Planning Board to determine plaintiffs' entitlement to the requested variances under N.J.S.A. 40:55D-70c(2) in conformity with this opinion. In making this determination, the Board should consider all the evidence presented at the two hearings on plaintiffs' application. The Board also may permit supplementation of the record developed at those hearings. Jurisdiction is not retained.

The resolution approving that subdivision was not introduced into evidence at the hearing before the Board.

Although the zoning ordinance in effect in 1975 also was not introduced into evidence, the zoning in the area was apparently the same in 1975 as it is now.

The DEP was entitled to notice under N.J.S.A. 40:55D-12b, as an owner of property within 200 feet of the plaintiffs' property, and West Cape May was entitled to notice under N.J.S.A. 40:55D-12d, as an adjoining municipality located within 200 feet of plaintiffs' property.

We also note that the summary of the evidence presented at the second hearing consisted of a "proposed statement of facts" submitted by plaintiffs, which the Board simply adopted and attached to its resolution. This is obviously improper. The Board has the responsibility to rule upon an application for a land use approval, with appropriate findings of fact and conclusions of law. It cannot discharge this responsibility by simply adopting the submission of an applicant.

Any current member of the Board who was not a member at the time of those hearings or was absent on any date they were conducted must of course comply with N.J.S.A. 40:55D-10.2.

(continued)

(continued)

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A-6764-04T2

October 16, 2006