WILLIAM S. CLARKE v. THE HOPEWELL TOWNSHIP PLANNING BOARD

This case can also be found at 198 N.J. 474, 968 A.2d 1190.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4354-06T24354-06T2

WILLIAM S. CLARKE and

WENDY W. CLARKE,

Plaintiffs-Appellants,

v.

THE HOPEWELL TOWNSHIP PLANNING

BOARD, THE LEWIS CLINIC FOR

EDUCATIONAL THERAPY, INC., and

PRINCETON TEN SHEEP FARM LIMITED

LIABILITY COMPANY,

Defendants-Respondents.

___________________________________

 

Argued January 24, 2008 - Decided

Before Judges Wefing and R. B. Coleman.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Docket No. L-3052-06.

R. William Potter argued the cause for

appellants (Potter and Dickson, attorneys;

Mr. Potter, on the brief).

Leslie A. Parikh argued the cause for

respondent Hopewell Township Planning

Board (Gebhardt & Kiefer, attorneys;

Richard P. Cushing, of counsel; Mr. Cushing

and Susan M. Flynn, on the brief).

Dean A. Gaver argued the cause for respondents

The Lewis Clinic for Educational Therapy, Inc.

and Princeton Ten Sheep Farm Limited Liability

Company (Greenbaum, Rowe, Smith & Davis, attorneys;

Mr. Gaver, of counsel and on the brief;

Steven Firkser, on the brief).

PER CURIAM

Plaintiffs William and Wendy Clarke appeal from a judgment entered by the trial court dismissing their complaint in lieu of prerogative writs and upholding a resolution of the Hopewell Township Planning Board (the "Board"). After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiffs own property located on 944 Cherry Valley Road in Hopewell Township. Defendants Princeton Ten Sheep Farm LLC ("Princeton Ten") and The Lewis Clinic for Educational Therapy, Inc. ("Lewis Clinic") own adjoining parcels which also front on Cherry Valley Road and are within two hundred feet of plaintiffs' property. Princeton Ten owns Lot 9, which consists of 37.20 net acres, and Lewis Clinic owns Lot 17, which consists of 27.18 acres. Both parcels are in Block 15. Both Princeton Ten and Lewis Clinic have the same principal, Marsha Gaynor Lewis.

On July 27, 2006, an application was submitted to the Hopewell Township Planning Board for a minor subdivision, consisting merely of a lot line adjustment between Lots 9 and 17. The effect of the proposed adjustment was to increase Lot 17 from 27.18 net acres to 44.88 net acres and reduce Lot 9 from 37.20 net acres to 15.99 net acres.

This was the third application for minor subdivision which had been submitted to the Planning Board with respect to these two parcels. The first application proposed the creation of four lots from these two parcels, and the second proposed the creation of three lots. These two earlier applications did not proceed because they were deemed incomplete in several respects. The third and final application, which was complete when submitted, did not involve the creation of any new lot but merely adjusted the lot line between these two parcels.

At the time of the application, Lot 9 contained a single family residence and some outbuildings, and Lot 17 was completely undeveloped. Both lots would remain fully conforming after the lot line adjustment although one shed on Lot 9 would not comply with the one-hundred-foot sideline requirement of Hopewell's zoning code. The applicant agreed to move the shed if the minor subdivision were granted. Thus, no variances were needed or requested in connection with this subdivision application.

No proposal for development on either parcel was submitted as part of the subdivision application. Thus, there was no question of site plan approval. The only issue before the Board was whether the application to adjust the lot lines should be granted. Both the Township planner and engineer testified they had no opposition to the application.

Several nearby property owners, however, including plaintiffs, did oppose the application. They presented a planner as an expert witness in opposition. It is clear from reviewing the transcript of the hearing before the Planning Board that nearby residents were concerned about proposed future development on the land, in particular, the possibility that a school for children with learning disabilities would be placed on the land. The opponents' planner expressed concern that the manner in which the lot lines were proposed to be redrawn would result in one of the lots being irregularly shaped. This, she asserted, created the potential for hardship variances being requested in the future if the property were to be further subdivided in connection with development of the land. The attorney for the applicant informed the Board that the lines were drawn so as to accommodate the concerns of the bank which was going to provide financing in connection with any subsequent attempt to develop the land. After discussion, the Board voted unanimously to approve the application.

Plaintiffs thereafter filed a complaint in lieu of prerogative writs, challenging the board's action. Plaintiffs appeal from the trial court's judgment in defendants' favor. On appeal, they raise the following arguments:

Point 1:

The Trial Court erred in holding that the Planning Board had jurisdiction to grant approvals for a subdivision that was not for a purpose specified in the MLUL. Because this subdivision was not for "sale or development" and did not come within any MLUL exception, the court below erred in dismissing the complaint;

Point 2:

Even if the Planning Board had jurisdiction to grant subdivision approval for "no reason" or for "financing purposes" as stated by applicant's counsel, the Board had no competent evidence or testimony in the record on which to base its decision, and none was provided to the court below which disregarded this fatal defect in the record;

Point 3:

The defendants, The Lewis Clinic for Educational Therapy, Inc., and Princeton Ten Sheep Farm, L.L.C., cited to no authority in support of their theory that no purpose for the subdivision needs to be provided, because "subdivision" means "development," an example of circular reasoning; the court below erroneously accepted this circular reasoning;

Point 4:

The court below erred by approving the multiple waivers of filing and informational requirements in the mandatory "checklist" without findings of fact to support the same.

It is appropriate to note at the outset the standard of review governing our consideration of this appeal. An appellate court considering a trial court's review of a municipal board's action is bound by the same standard as that which governed the trial court. New York SMSA, Ltd. P'ship v. Bd. of Adj., Twp of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). A reviewing court must accord deference to the actions of the municipal board and overturn those decisions only when they are arbitrary, capricious or unreasonable. Ibid. A reviewing court may not substitute its judgment for that of local officials. Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965). The local board's action is presumed to be valid, and the challenger has the burden of proving it otherwise. See Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990). With these principles in mind, we turn to appellants' arguments.

Appellants contend that the Planning Board lacked jurisdiction to grant this minor subdivision application because the owners of the two lots did not present to the Board the reason why they wished to make this lot line adjustment. We are satisfied, however, that in the context of the instant application, no reason had to be proffered. The result of the proposed lot line adjustment was two fully conforming lots, with no requests for variances having been presented. The reason why the subdivision was sought was immaterial.

Appellants note the statutory definition of subdivision as "the division of a lot, tract or parcel of land into two or more lots, tracts, [or] parcels for sale or development." N.J.S.A. 40:55D-7. They also note that under N.J.S.A. 40:55D-60, a planning board can grant subdivision approval in connection with an application for development. From this, they conclude that absent a specified purpose, the Hopewell Township Planning Board was powerless to grant this relief. Plaintiffs' argument conjoins separate statutes and then parses them too finely.

We are not unmindful of the possibility of an applicant seeking to obtain an untoward advantage by proceeding in separable steps. The short answer, however, is that the Legislature, confident in the judgment of local citizens, has vested local boards with authority to proceed in such matters. We cannot second guess that decision. Indeed, the present Board was cognizant that its decision on this application could have future ramifications in that it might be called upon at some point to consider particular applications to develop this land.

We are not persuaded by the appellants' reference to language contained in Stoker v. Town of Livingston, 71 N.J. Super. 370, 378 (Law Div. 1961), in which the court noted that a municipality could not adopt its own definition of a subdivision, beyond that adopted by the Legislature. The situation presented in Stoker was completely distinguishable factually from that before us.

We also reject appellants' next argument that even if the Planning Board did have jurisdiction to proceed in the absence of a stated purpose for the subdivision, it acted arbitrarily, capriciously and unreasonably in granting this subdivision without knowing the purpose for which it was sought. In our judgment, the Supreme Court's opinion in Pizzo Mantin Group v. Twp. of Randolph, 137 N.J. 216, 226 (1994), is dispositive.

Although the MLUL [Municipal Land Use Law] gives planning boards, in accordance with the standards of the subdivision ordinance, the power to require that subdivision proposals comply with zoning ordinances, the MLUL has no provision, as did the Planning Act [of 1953], that grants a planning board the power to require that lots in the subdivision plan be "adaptable for the intended purposes without danger to health or peril from flood, fire, erosion, or other menace." Rather, the MLUL specifically provides that "[t]he planning board shall, if the proposed subdivision complies with the [subdivision] ordinance and this act, grant preliminary approval to the subdivision."

[Pizzo Mantin Group v. Twp. of Randolph, 137 N.J. 216, 226 (1994) (citations omitted).]

Finally, we reject the appellants' criticism of the trial court's analysis. It was not "circular" as appellants contend. The trial court properly noted that if and when any application for site approval may be submitted, appellants will have ample opportunity to address their concerns as to the development of this land. We do not consider the contention that the trial court erred in approving the Board's decision to grant waivers of certain informational items that would be required in the event of a site plan application to have sufficient merit to warrant discussion in a written opinion for it would have no precedential value. R. 2:11-3(e)(1)(E).

The judgment under review is affirmed.

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A-4354-06T2

December 15, 2008