JASON SHERMAN v. HOLMDEL TOWNSHIP PLANNING BOARD

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5858-06T25858-06T2

JASON SHERMAN, RAYMOND C.

WEBER and URSULA E. WEBER,

Plaintiffs-Respondents,

v.

HOLMDEL TOWNSHIP PLANNING

BOARD and TOWNSHIP OF HOLMDEL,

Defendants-Appellants.

__________________________________

 

Argued March 10, 2008 - Decided

Before Judges Graves, Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2119-06.

Louis P. Rago argued the cause for appellants (DeCotiis, Fitzpatrick, Cole & Wisler, LLP, attorneys; Mr. Rago, on the brief).

Wayne J. Peck argued the cause for respondents (Wayne J. Peck Attorney At Law, L.L.C., attorneys; Mr. Peck, on the brief).

PER CURIAM

This land use case arises out of a developer's effort to build a single-family house on a landlocked parcel situated within a residential zone. Defendants, the Township of Holmdel ("the Township") and the Holmdel Township Planning Board ("the Planning Board'), appeal orders issued by the Law Division on April 30 and June 26, 2007. The orders in question overturned a resolution of the Planning Board, which had denied the developer's application. The orders have been stayed pending this appeal.

For the reasons explained in this opinion, we vacate the Law Division's orders, and remand the matter for further consideration by the Planning Board. In particular, the Planning Board on remand should amplify the record, and make specific findings pursuant to N.J.S.A. 40:55D-36, as to (1) whether the strict enforcement of the street access requirements in N.J.S.A. 40:55D-35 for the subject property "would entail practical difficulty or unnecessary hardship," and, if not, (2) whether "the circumstances of the case do not require the building or structure to be related to a street." N.J.S.A. 40:55D-36.

I.

The property at issue in this case is specifically known as Lot 46 in Block 50.25 in the Township. The property is a single parcel of vacant land consisting of approximately 4.8 acres. It is located in a zone permitting residential uses on minimum lot sizes of one acre. The parcel has an irregular elongated shape, and on the map provided to us it roughly resembles the State of Kentucky with a flatter top. It is heavily wooded and has steep slopes.

Plaintiff Jason Sherman has a contract to purchase the subject property from its present owners, co-plaintiffs Raymond C. Weber and Ursula E. Weber. Jason Sherman is the son of Terry Sherman, an experienced real estate developer. The Shermans plan to build a two-story, single-family home on the parcel.

As we have already noted, the property is landlocked, and has been in such a landlocked condition for several decades. Some history on that persisting condition is worth mentioning. The subject property relates to a subdivision created in 1965. As part of the subdivision approval, the Township required the then-developer to extend a street then known as "Parkview Terrace" (now known as "Mount Drive") to a bulbous cul-de-sac. The Township also required the subdivision developer to post a performance guaranty for the completion of the extension. The cul-de-sac was intended to connect the southern boundary of the subject property. This extension would furnish the property with its sole access to a public street.

For reasons that are not entirely clear, the roadway extension was never built. In March 1968, the Township adopted an ordinance vacating public rights in the portion of Parkway Terrace that had been planned for extension. Six years later, in 1974, the Township passed an ordinance appropriating certain funds initiated to acquire a portion of the subject property, Lot 46. At about the same time, the Township also brought a condemnation action in pursuit of that acquisition. In the following year, 1975, the Township reconsidered the acquisition, rescinding the appropriation and voluntarily dismissing the condemnation case.

Meanwhile, in 1975 the Planning Board approved another nearby subdivision, known as Forest Hills Estates. The minutes of the January 1975 meeting, at which the approval for Forest Hills Estates was granted, describe the subject property as a "proposed open space area," which was "to be dedicated to the Township." The minutes also reflect a recognition that "there is no access provided by the [Forest Hills Estates] applicants to the open space area," and that "access must be [made] available" to that area. Consequently, the Planning Board denied the open space application, apparently leaving the subject property in its continued landlocked state.

At present, the property remains without street access. The Township's current tax map does not show Mount Drive extending to the property on the south. The only other nearby street, an east-west thoroughfare known as East Brook Drive, is separated from the property by another parcel, Lot 43, which is owned by a Mr. Ceriello. Lot 43 fronts on East Brook Drive, and contains a single-family house.

In order to gain street access for the property, the Shermans negotiated an easement through Lot 43 with Ceriello that would connect Lot 46 to East Brook Drive. The easement would accommodate a driveway, which the Shermans proposed would be sixteen feet wide and approximately 250 feet long. As part of the creation of the easement, the Shermans also sought a lot line adjustment that would reduce the size of Lot 46 from about 4.8 acres to about 4.3 acres. The net result of the easement would be to transform the subject property essentially into a flag lot, with the easement constituting the stem of the flag.

The Shermans propose erecting a single-family dwelling of approximately 4,000 square feet on the site, plus a garage of about 720 square feet. The new house would be located no closer than forty feet from the property lines of neighboring homes, in conformity with the twenty-five-foot setback requirements of the local zoning ordinance. The proposed construction would fit within the so-called permissible "building envelope" for the site, and would not violate density or lot coverage restrictions.

After securing the easement rights from Ceriello, Jason Sherman applied to the Planning Board for preliminary and final major subdivision approval, along with miscellaneous variances and waivers. According to Sherman's attorney, the application was classified as "major" under the Township's regulations because of the presence of steep slopes on the property. As part of the application, Sherman sought to adjust the lot lines between Lots 43 and 46 to accommodate the easement to East Brook Drive.

The Planning Board heard the site plan application at two public meetings, on February 7 and March 7, 2006. During the interval between the two meetings, the Planning Board members conducted an inspection of the site. The applicant presented three witnesses: Terry Sherman, Gustave DeBlasio, a senior landscape architect and certified tree expert, and Andrew Stockton, a licensed professional engineer and planning expert. There were no opposing witnesses sworn, although several neighbors posed questions and voiced concerns at both meetings.

Terry Sherman, who testified at both meetings, provided the Planning Board with an overview of the construction plans. He explained how the new house would obtain street access through the negotiated easement. He represented that the easement would have fifty feet of lot frontage, and that his son would maintain the driveway portion of the easement while Ceriello would maintain the remainder. He further noted that he had agreed to widen the driveway from its original proposed dimensions to sixteen feet, in order to satisfy the local fire official's concerns about emergency access to the premises. As an additional accommodation, he indicated that the applicant was willing to reduce the height of a retaining wall in the rear of the property from 4.8 feet to four feet, or alternatively, to obtain a variance for the extra height. He also addressed, among other matters, grading, drainage, traffic, landscaping and slopes, a utility's water main traversing the site, and an environmental design waiver that he had sought from the State Department of Environmental Protection ("DEP").

DeBlasio, the architect and tree expert, testified concerning woodlands issues. He noted that the site is "fairly well vegetated with a mature stand of trees." DeBlasio recognized that the Township's tree ordinance generally requires developers to replace trees that are cleared as a result of construction. He explained that the applicant would replant new trees in compensation for those that would be lost, as well as supplemental plant material that would not adversely impact upon the native trees or their root systems. DeBlasio emphasized that the applicant's intent was to "try to preserve as much vegetation as possible to more or less create a seclusion atmosphere" on the applicant's lot. DeBlasio also responded to numerous questions from neighbors concerning the types of trees that would be affected and their locations.

In his expert testimony on engineering and planning items, Stockton opined that the project would have buffers with the stream channel, and what he perceived to be the boundaries of the 100-year flood plain. Stockton also confirmed that the applicant was waiting to hear back from the DEP to confirm that its proposed delineation of wetlands was correct. Stockton further noted that the proposed house would be situated at or about elevation levels 184 to 188 feet, in comparison to the home on adjacent Lot 45.07 that is around elevation levels of 180 to 184 feet. This signified that the applicant's house would be slightly higher than the neighbor's house. Stockton also responded to various questions concerning the site grading, the stream buffer, and other related matters.

Following the applicant's presentation, the Planning Board considered comments from the Township engineer, Bonnie Heard, P.E., and the Township planner, Paul Phillips, P.P. Heard stated that she anticipated reviewing a stream study from the applicant's engineer that had been delivered to her earlier that day, and that she would confirm shortly whether it met the municipality's requirements.

Phillips offered more extensive comments. He characterized as "the main issue" the fact that the new lot "has no frontage on the street, and it must go through an existing single[-]family lot to access to the public street network." As Phillips put it, "[t]hat is not the typical scenario." Phillips acknowledged that the applicant's situation is "unique," insofar as the stem of the proposed flag lot would consist of an access easement rather than the applicant owning the street access in fee. Phillips reiterated that "this is a very unusual situation," and that it was not "ideal."

Phillips raised two other concerns. First, he expressed reservations about the proximity of the new driveway to the adjacent property of the neighbor on Lot 45.07. He also expressed concerns about the applicant's intended removal of some of the woodlands. On that latter item, Phillips advised the Planning Board to "consider whether or not the [woodlands] conditions are unique to the site, as opposed to whether or not the [Township's tree replacement] ordinance is reasonable."

After considering these matters, the Planning Board voted on March 7, 2006 to deny the site plan application. That disposition was memorialized in a resolution dated April 4, 2006. Among other things, the resolution cited Phillips's concerns about the property's lack of "frontage on an improved public street," the "length and relatively narrow width of the proposed new driveway," and the "proximity of both the driveway and the proposed new home to an adjoining property." The resolution also pointed to the opposition expressed by neighbors to the application, both in their oral comments and in prepared written submissions. The neighbors' objections had particularly raised concerns about the subject property being "heavily wooded with steep slopes, wetlands and animal habitats," the site's "very small building envelope," and its "close proximity" to Lot 45.07.

In its analytical portion, the Planning Board's resolution acknowledged the so-called "positive" and "negative" standards for granting bulk and other non-use variances under N.J.S.A. 40:55D-70(c). The resolution said virtually nothing about "positive" reasons that might favor the applicant. On the other hand, the resolution addressed at length various "negative" reasons for rejecting the application.

With respect to the negative reasons, the resolution alluded to, among other things, (1) the "steep slopes and wetlands" on site, (2) the "very small building envelope," (3) the forty-foot proximity of the structure to the neighboring property line, (4) the "very narrow and long" driveway, and (5) the expectation that the retaining walls "would no doubt require variance relief." Given these adverse considerations, the Planning Board concluded that "good cause has not been shown to approve the application," and that the relief sought could not be granted "without substantial detriment to the public good, and without substantially impairing the intent and purpose of the [Township's] zone plan and zoning ordinances."

Thereafter, plaintiffs filed a twelve-count verified complaint in lieu of prerogative writs in the Law Division. The first three counts are the only ones that concern us on this appeal. Count One asserts that the Planning Board acted arbitrarily and capriciously in denying the application because, among other things, (1) the Township itself had caused the property to be landlocked, (2) the proposed single-family home is a permitted use, and (3) the Township's zoning permits flag lots. Count One further alleged that the Planning Board's determination was not supported by substantial credible evidence.

Count Two similarly alleges that the Planning Board's denial was arbitrary and capricious. That Count asserts, among other things, that (1) the presence of wetlands is not a proper consideration of a local Planning Board in evaluating a subdivision application, (2) the steep slopes, which are not proposed to be built upon, are likewise not a proper basis for denying an application, (3) the project was completely within the permitted building envelope, (4) the project conformed to applicable setback requirements, (5) the local ordinances do not regulate the length of a driveway, (6) the correspondence on file from the Township's emergency providers raised no safety issues about the driveway's current proposed width, and (7) no retaining wall on the site requires a variance.

Finally, Count Three of the verified complaint alleges that the Planning Board misapplied the law by not finding detriment to the public good but rather in finding a detriment solely to "one adjacent dwelling."

After the Planning Board and the Township jointly answered the complaint, the matter was orally argued in the Law Division on March 23, 2007. During the course of his bench opinion, the trial judge focused upon N.J.S.A. 40:55D-35 and N.J.S.A. 40:55D-36, statutory provisions that had neither been addressed by the Planning Board at the public hearings, nor in the Board's twelve-page resolution. In applying Sections 35 and 36 of the statute, the trial judge found of significance the history of the property that led to its landlocked condition:

Here, access to the landlocked parcel was absolutely impossible by way of Mount Drive due to the physical and environmental constraints and besides that, by the [T]ownship's own actions they required the initial developer to put through this street. I guess what happened was they really thought they were going to condemn the property for open space and get rid of the street but they never did it. And as a result, by their own actions there's no street to this property.

So what does the applicant do? The applicant makes his own street at his own cost and expense. He goes and he buys a 50 foot wide easement. He develops a flag lot, which is clearly a flag lot to me, with clear access to the property and he's turned down. Thus the access proposed here would have granted . . . by an easement from the adjacent property owner.

The plaintiff[s] nevertheless concede[] that N.J.S.A. 40:55[D]-35 requires that . . . in order to constitute a valid building lot the property must have frontage on a public street improved to municipal standards. However, under certain circumstances the compliance with that requirement is simply not possible. To remedy that situation N.J.S.A. 40:55[D]-36 provides [that] where the enforcement of N.J.S.A. 40:55[D]-35 would entail practical difficulty or unnecessary hardship, or the circumstances of the case do not require the building or structure to be [related] to a street, the Board of Adjustment may, upon an application or appeal, vary the application of N.J.S.A. 40:55[D]-35 and direct the issuance of permits[,] subject to the conditions that will provide adequate access for fire fighting equipment, ambulances and other emergency vehicles necessary for the protection of health and safety and will protect any future street [layout] shown on the official map or a general circulation plan element of the municipal master plan, pursuant to [p]aragraph 4 of N.J.S.A. 40:55[D]-28.

Given that this parcel of land is clearly landlocked and unusable by the [T]ownship's own actions, the circumstances of this case should not require that the building or structure be related to a street. Therefore, rather than deny the plaintiff's application the Board should have granted this application pursuant to N.J.S.A. 40:55[D]-36.

[Emphasis added.]

The trial judge emphasized that the Planning Board should have analyzed the site plan application, at least with respect to issues relating to street access, the easement through Lot 43, and the proposed driveway within the easement, under the criteria of N.J.S.A. 40:55D-36. Even so, the judge went on to address the Planning Board's findings under Section 70(c), and independently determined that those findings were arbitrary and capricious. The judge also found the Planning Board's findings, in several respects, unnecessary because, except for the street access issues, the project substantially conformed with the pertinent zoning ordinances and did not require any significant variances. In particular, the proposed house would be in a residential zone, would have a forty-foot setback greater than the required twenty-five-foot setback, and would not cause a substantial detriment for the surrounding properties. As the judge observed:

The plaintiff, however, contends that none of the concerns raised by the Board before denying his application legitimately addressed any of those requirements. As such it is necessary to review the rationale articulated by each of the Board members in voting against his proposed subdivision.

First, the proposed home would be located 40 feet from the adjacent property line. That distance exceeds the ordinance requirement by 25 feet or by 60 percent. Yet the Mayor, nevertheless, said "I am also caught up with the 40 foot behind. I believe that it doesn't serve, [I] just [don't] like the way it looks." That's that March 7, 2006 transcript, page 91 and 92.

[A]ccordingly the Mayor vote[d] against the proposed subdivision. The Board, however, had no authority to hold the property to a greater standard than is applicable to any other property within the zone. Instead the New Jersey Supreme Court expressly held, "The Municipal Land Use Law evidences a legislative design to require consistency, uniformity and predictability in subdivision approval process. The legislative scheme contemplates that a planning Board's review of a subdivision proposal, including the layout of the entire design, must be made within the framework of the standards prescribed by the subdivision and if pertinent, the zoning ordinances." See [Pizzo Mantin Group v. Randolph, 137 N.J. 216, 229 (1994).] Therefore for the Board to deny the plaintiff's application for a condition which proposal was fully [compliant], was improper.

[Emphasis added.]

The judge also expressed concerns that, if the plaintiffs' application were denied, the Township's own actions and inactions that had landlocked the parcel could represent an unconstitutional taking, potentially compensable through inverse condemnation:

Clearly there would be no negative consequence in this Court's opinion to the [T]ownship if access was granted to the plaintiff here. In fact, the [T]ownship would benefit in the granting of the relief, would no longer render this, the taking of a property. I mean somebody could certainly argue that if they don't grant him access and there was no way to access the property, there is a taking of the property and there may in fact be eminent domain involved.

Accordingly, Holmdel Township would not be required to expend large sums of money to compensate the plaintiff. In any event, the Board failed to even consider relief pursuant to N.J.S.A. 40:55[D]-36 in light of the property's unusual predicament as a landlocked parcel by their very own actions.

The judge continued:

[T]he proper focus is not solely on the particular parcel, but upon the impact such parcels may have on the public good as a whole. In other words the variance may be granted only if the spirit of the zoning ordinance and the general welfare are observed. [Citation omitted.] Therefore it is necessary to consider the Board's denial of the proposed access to the subject parcel here. Specifically by prohibiting all access to this landlocked parcel, the Board's conduct effectively served as a taking by the [T]ownship.

Any taking by a municipality has a direct and substantial financial impact on that community at large. In addition, if this home was built it would (inaudible) substantial taxes in Holmdel and it will benefit the community as well.

On the other hand there is nothing in the record to suggest that a home built in accordance with all of the bulk requirements of the zone would cause a substantial detriment to the surrounding property. In fact theoretically there could be three, perhaps four lots on this property and Mr. Sherman seeks to only build one house on this property and use it for one building lot.

The Board's resolution failed to cite any substantial detriment which would result from the plaintiff's proposed subdivision. To the contrary, the adjacent property owner was willing to sell the [plaintiff Sherman] a portion to give access and an easement. As a result, it would pose no great burden upon the surrounding property owners. In fact they should be very lucky that only one house is there and not more.

[Emphasis added; citation omitted.]

The trial judge thus concluded that the Planning Board's denial of relief to the plaintiffs was improper and had to be reversed:

There is nothing in this record which shows that this application would have a substantial negative impact. In fact this [c]ourt believes it's a substantial positive impact. There would be no condemnation. There will be substantial addition to the tax base. There is one house being built on the property rather than two, three or four. And clearly this is a hardship that was imposed by the [T]ownship which has to be dealt with.

. . . .

. . . As such[,] the [c]ourt holds the denial, in this [c]ourt's opinion, is clearly arbitrary, unreasonable and capricious. . . .

. . . [I]n this [c]ourt's opinion there is no reason for a variance . . . .

Consistent with his oral ruling on the motion, the Chancery judge entered an order on April 30, 2007 reversing the Planning Board's denial of plaintiff Sherman's application. The order declared that the application was granted, subject to two conditions. The first condition was that the variance to allow a driveway width of sixteen feet was denied, and that the driveway, if built, was not to be fewer than eighteen feet in width. The second condition specified that any proposed retaining walls on the site must be in accordance with the requirements of the local ordinance. The order provisionally dismissed Counts Four through Twelve of the verified complaint, subject to their reinstatement if the case were remanded to the trial court.

Defendants moved for reconsideration and for a stay pending appeal. After hearing further oral arguments, the trial court denied the reconsideration motion in an oral ruling on June 26, 2007. The judge did, however, grant defendants a stay pending appeal, but clarified that the stay would not prevent plaintiffs from clearing trees on the site, because the Township's tree replacement provisions are only triggered when a development application is approved. We have been advised by counsel that plaintiffs subsequently have cleared numerous trees from the site, although not to an extent that would be contemplated if the trial court's judgment is affirmed and the construction of the house proceeds.

The Township and Planning Board appeal the trial judge's rulings. In essence, they argue that the judge should have given more deference to the municipal officials, and that the judge erred in finding that the Planning Board's denial of the Sherman application was arbitrary, capricious and unreasonable. Defendants also contest the judge's consideration of the background historical documents concerning the property. Finally, they contend that the judge improperly relieved plaintiffs of having to secure any variances or waivers for their project, and also erred in allowing plaintiffs to clear trees from the site pending appeal.

II.

As our courts have long recognized, "public [land use] bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion." Jock v. Zoning Bd. of Adj. of Wall, 184 N.J. 562, 597 (2005) (citing Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965)). Hence, the ordinary standard of judicial review applied to a decision by such bodies is to determine whether the decision was "arbitrary, capricious, or in manifest abuse of its discretionary authority." Ibid. However, questions of law that bear upon decisions by a township planning board do not warrant similar judicial deference. See Bubis v. Kassin, 184 N.J. 612, 627 (2005) (calling for the de novo review of questions of law); see also James R. Ientile, Inc. v. Zoning Bd. of Adj. of Colts Neck, 271 N.J. Super. 326, 329 (App. Div. 1994).

Although we are mindful of the various other concerns relating to the site, the predominant issues in this case involve the property's landlocked condition, the access easement, and the proposed driveway through the easement. The trial judge correctly recognized that these central issues implicate, as a matter of law, Sections 35 and 36 of Title 40:55D. These statutory provisions were first codified in 1953 as part of the former Official Map and Building Permit Act, L. 1953, c. 434, 10 and 11. Kligman v. Lautman, 53 N.J. 517, 522-23 (1969). In 1976, this Act was repealed and replaced by the Official Map Article of the Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-32 to -36. See Amato v. Randolph Twp. Plan. Bd., 188 N.J. Super. 439, 448 (App. Div. 1982). The provisions have roots in the 1930 Planning Act, which, among other things, provided that a building permit shall not be issued "unless a street or highway giving access to the proposed structure 'has been duly placed on the [municipality's] official map or master plan.'" Kligman, supra, 53 N.J. at 544 (quoting R.S. 40:55-18, the predecessor version of N.J.S.A. 40:55D-35).

As it is presently written, Section 35 provides, in relevant part:

No permit for the erection of any building or structure shall be issued unless the lot abuts a street giving access to such proposed building or structure. Such street shall have been duly placed on the official map or shall be (1) an existing State, county or municipal street or highway, or (2) a street shown upon a plan approved by the planning board, or (3) a street on a plat duly filed in the office of the county recording officer prior to the passage of an ordinance under this act or any prior law which required prior approval of plats by the governing body or other authorized body. Before any such permit shall be issued, (1) such street shall have been certified to be suitably improved to the satisfaction of the governing body, or such suitable improvement shall have been assured by means of a performance guarantee, in accordance with standards and specifications for road improvements approved by the governing body, as adequate in respect to the public health, safety and general welfare of the special circumstance of the particular street and, (2) it shall have been established that the proposed access conforms with the standards of the State highway access management code adopted by the Commissioner of Transportation under section 3 of the "State Highway Access Management Act," [N.J.S.A. 27:7-91] in the case of a State highway, with the standards of any access management code adopted by the county under [N.J.S.A. 27:16-1] in the case of a county road or highway, and with the standards of any municipal access management code adopted under [N.J.S.A. 40:67-1] in the case of a municipal street or highway.

[N.J.S.A. 40:55D-35 (emphasis added).]

As our Supreme Court observed in Kligman, "[t]he thrust of [Section 35] . . . is to assure adequate access to every structure for emergency vehicles necessary to protect health and safety. This is accomplished by requiring abutting lots to front on specified kinds of streets, suitably improved or their improvement guaranteed, before permits may issue." Kligman, supra, 53 N.J. at 543

The Legislature has also recognized, however, that in some situations the achievement of the public street access mandated by Section 35 of the MLUL might be practically difficult, or pose undue burdens on a property owner. Consequently, the statute includes an exception in Section 36 for potential relief from the rigors of Section 35:

By virtue of [Section 36], the [Section 35] requirements of street frontage may be dispensed with, provided [that] adequate access for emergency vehicles is assured by some lesser means of access which will also "protect any future street layout shown on the official map or on a master plan of streets duly adopted by a planning board."

[Ibid. (Citations omitted in original.)]

The Supreme Court observed in Kligman that the purpose of this statutory scheme "is certainly a salutary and laudable one." Ibid.

In relevant part, Section 36 of the MLUL currently provides:

Where the enforcement of [N.J.S.A. 40:55D-35] would entail practical difficulty or unnecessary hardship, or where the circumstances of the case do not require the building or structure to be related to a street, the board of adjustment may upon application or appeal, vary the application of [N.J.S.A. 40:55D-35] and direct the issuance of a permit subject to conditions that will provide adequate access for firefighting equipment, ambulances and other emergency vehicles necessary for the protection of health and safety and that will protect any future street layout shown on the official map or on a general circulation plan element of the municipal master plan pursuant to [N.J.S.A. 40:55D-28(b)(4)].

[N.J.S.A. 40:55D-36 (emphasis added).]

The statute further recites that these powers of a board of adjustment to provide relief concerning public street access may be exercised by a planning board in instances, such as the present case, where the "proposed development requires approval by the planning board of a subdivision, site plan or conditional use." Ibid.

There is scant case law construing or applying the hardship exception set forth in Section 36. The sole reported decision passing on the merits of a hardship request is Phillips v. Bd. of Adj. of Westfield, 44 N.J. Super. 491 (App. Div.), certif. denied, 24 N.J. 465 (1957). The pertinent circumstances in Phillips were as follows. The individual defendants owned two vacant residential lots adjacent to their home. The lots fronted on what was shown on the municipal tax map as Maine Street. Id. at 494. Defendants sought to build a single-family home on one of the two lots. At the time, Maine Street was unimproved, and was neither paved nor curbed. Ibid. The area in question was described in the record as "overgrown" and "half-wooded." Ibid. After a building inspector declined to issue them a permit, defendants appeared before the local board of adjustment. After a hearing the board agreed to allow defendants to construct the new house, on the condition that they also built an eighteen-foot wide pavement of road stone connecting the building lot to Rahway Avenue, an improved street. Id. at 495.

The plaintiffs in Phillips, who were neighbors of defendants, opposed the building plans. After the board of adjustment granted relief, plaintiffs filed an action in lieu of prerogative writs challenging the board's determination. Id. at 496. The trial judge invalidated the board's decision. Id. at 497. We reversed the trial judge, citing the predecessor version of N.J.S.A. 40:55D-36. Id. at 496-97. In doing so, we agreed that "the board was justified in finding from the evidence that the enforcement of the prohibitory section [of the statute, now codified at Section 35] would in fact entail 'practical difficulty or unnecessary hardship.'" Id at 496. In that vein, the record showed that the cost of paving and curbing the access road in accordance with the municipality's usual standards would be "greatly disproportionate" to the value of defendants' property. Ibid. We also were satisfied that the proposed roadway solution sufficed to provide sufficient access for fire-fighting equipment, ambulances and other emergency vehicles. Id. at 497. Consequently, we determined that the board of adjustment's action "was properly guided by the policy of the [access] statute and therefore we are not disposed to substitute our judgment." Id. at 500.

In the present case, there are no findings by the Planning Board concerning the hardship criteria of N.J.S.A. 40:55D-36. The record suggests that the Planning Board afforded no consideration whatsoever to that statute, and its companion provision in N.J.S.A. 40:55D-35. In effect, the trial judge made his own finding that plaintiffs satisfied the criteria of the Section 36 exception, without taking any testimony, or, more importantly, affording local officials the first opportunity to consider the implications of the statute. Upon recognizing the Planning Board's oversight, the trial judge should instead have remanded the site application so that the municipal record could be properly developed, and the insights of the local officials duly applied. As we noted in Phillips, such local officials are "familiar with the community's characteristics, the facilities for meeting emergencies that attend life in that community, and the adequacy of access for vehicles required to meet these emergencies." Id. at 500.

Although the trial judge attempted to take into account some of these considerations by requiring plaintiffs to expand the proposed driveway from sixteen to eighteen feet, as desired by the Planning Board, the judge failed to give the Planning Board a sufficient opportunity to evaluate the other aspects of the statute, including whether enforcement of the access requirements would "entail practical difficulty or unnecessary hardship, or where the circumstances of the case do not require the building or structure to be related to a street." N.J.S.A. 40:55D-36. We note in this regard that Section 36 states that, if such mitigating considerations are proven, the local land use body "may" direct the issuance of a building permit. Ibid. The Legislature's use of the term "may," which is often permissive in meaning, signals that the Planning Board has a degree of discretion in such determinations. See N.Y. SMSA Ltd. P'ship v. Twp. Council of Edison, 382 N.J. Super. 541, 547 (App. Div. 2006) (differentiating between the effect of the terms "may" and "shall" in the MLUL); see also the definitional section of the MLUL, N.J.S.A. 40:55D-3 ("The term 'shall' indicates a mandatory requirement, and the term 'may' indicates a permissive action."). An abuse of that discretion is surely reviewable by the judiciary.

The trial judge appears to have been animated by a concern that the landlocked nature of the plaintiffs' property resulted, in full or in substantial part, from the Township's own actions and inactions. The judge also reasoned that the issuance of a building permit, on reasonable conditions, would insulate the Township from a takings claim of inverse condemnation such as that pleaded in Counts Five and Six of the verified complaint. Although we do not necessarily disagree with the judge's premonitions, his finding that a compensable taking would have occurred if relief under Section 36 were denied was premature. Again, a fuller record needs to be developed in the Planning Board before such an ultimate legal conclusion is reached.

We also part company with the trial judge concerning his determination that Sections 35 and 36 of the MLUL are the only statutory provisions that pertain to the Shermans' land use application, and that the variance standards of N.J.S.A. 40:55D-70 are irrelevant. To be sure, the statutory interplay between Sections 35 and 36, which were part of the Official Map and Building Permit Act and were eventually absorbed into the MLUL, and Section 70 of the MLUL, concerning use variances, is not self-evident. Even so, we have substantial doubt that the Legislature intended the roadway access provisions, Sections 35 and 36, to displace the vast array of other land use considerations that are commonly presented to a planning board or zoning board of adjustment under the MLUL.

We suggested in Phillips that the two distinct portions of the statute operate co-extensively, one regarding street access, and the other regarding additional land use concerns, when we observed that "[t]he nature of the consequences of the granting of a variance from a zoning ordinance may be far different from those involved in an exception under the 'Official Map and Building Permit Act.'" Phillips, supra, 44 N.J. Super. at 498 (citation omitted). As we further noted in Phillips, "[a] variance to permit a structure not in compliance with a zoning ordinance constitutes a permanent physical change in the area[,] with perhaps all the deleterious consequences which may flow from an unwise administrative action in that regard." Ibid. By comparison, "permitting the erection of a dwelling on a lot on an unimproved street involves no permanent harmful consequence to the municipality." Ibid.

Here, plaintiffs want to build a house on a lot that would have vehicular access not through an "unimproved street," but rather through an easement through another resident's property connecting to an improved street. The facts and circumstances are therefore not identical to those in Phillips. We do not adopt the trial judge's view that, assuming the hardship requirements of Section 36 may be satisfied, the Planning Board lacks the authority to apply the criteria of Section 70 to the non-use variances that may also pertain to the site plan.

We do share the trial judge's perception that the project in most respects comports with the pertinent zoning ordinances. The single-family dwelling is a permitted use in this residential zone. The permitted building envelope will not be exceeded. We also sustain the trial judge's determination that no setback variance or waiver is required, since the forty-foot setback contemplated by the building plans exceeds the twenty-five-foot minimum set forth in the zoning code. We also discern no lingering controversy over the retaining wall height, since plaintiffs have agreed to reduce the height as a condition of approval. Nevertheless, the record does suggest unresolved issues concerning the stream corridors, steep slopes, and tree replacement. The record does not reflect the extent to which the Planning Board's initial disposition of those items may have been influenced by its negative assessment of the street access issues, which independently require the Board's reconsideration in light of the hardship standards in N.J.S.A. 40:55D-36.

For all of these reasons, we conclude that the trial court's orders directing the issuance of a building permit to plaintiffs must be vacated, without prejudice, and that the matter should be remanded to the Planning Board. On remand, the Planning Board shall apply and address with specificity the criteria for relief enumerated in N.J.S.A. 40:55D-36. We also direct plaintiffs to furnish the Planning Board with the historical documents concerning the property and the origins of its persisting landlocked condition. The Planning Board also shall reconsider all other disputed or open issues relating to the site, including but not limited to, stream issues, sloping, and tree replacement.

Following the Planning Board's final determination, any aggrieved party may file a new action in lieu of prerogative writs with the Law Division. In the meantime, the existing Law Division case is dismissed without prejudice, and plaintiffs' previously-pleaded claims are reserved for a future timely action, if necessary, after the municipal proceedings on remand are completed.

 
The orders dated April 30 and June 26, 2007 are vacated, and the matter is remanded to the Planning Board for expeditious proceedings consistent with this opinion. We do not retain jurisdiction.

In summarizing that history, we take judicial notice of the local governmental documents contained in the plaintiffs' appendix. See N.J.R.E. 201. Although we agree with defendants that it would have been preferable if courtesy copies of those historical documents had been supplied to the Planning Board members when they first heard plaintiff Sherman's application, we note that the documents were considered in the Law Division proceedings. We trust that the Planning Board will be supplied with the documents, and any other related documents necessary for context, on the remand.

The hearing transcripts do not reveal Ceriello's first name.

Although the Township's zoning regulations permit flag lots, they apparently require that the land fronting the street be owned outright by the property-holder, rather than consisting of only an easement.

It is undisputed that Counts Four through Twelve were not adjudicated in the trial court and thus are not before us. Those counts include, among other things, an inverse condemnation claim, an injunctive claim to compel the Township to complete the extension of Mount Drive, and a claim that the Township's tree ordinance is invalid.

Actually, this setback exceeds the ordinance's requirement by fifteen feet, or thirty-seven percent. The mathematical difference is inconsequential to our analysis.

The Township did not seek to enjoin the removal of trees pending the appeal.

We specifically decline to pass on the validity of the Township's tree ordinance and note that the Supreme Court has granted certification in N.J. Shore Builders Ass'n v. Twp. of Jackson, No. A-2507-05 (App. Div. July 11, 2007), certif. granted, 193 N.J. 586 (2008), a case involving a municipal tree ordinance that has some similarities with the Township's tree ordinance. We also note that the trial judge in the present case did not adjudicate Count Nine, which challenges the validity of the tree ordinance.

(continued)

(continued)

32

A-5858-06T2

April 3, 2008