THE PALOPOLI FAMILY TRUST v. ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF AVALON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0387-08T10387-08T1

THE PALOPOLI FAMILY TRUST,

FRANK C. PALOPOLI and JAMES R.

KOLLER, Esquire, Trustees,

Plaintiffs-Appellants,

v.

ZONING BOARD OF ADJUSTMENT OF

THE BOROUGH OF AVALON; BOROUGH

OF AVALON; JEFFREY R. HESLEY,

CTA, ZONING OFFICER OF THE BOROUGH

OF AVALON; CARY TONER AND MARY ANN

C. TONER,

Defendants-Respondents.

 

 

Argued March 11, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-22-08.

Nicholas F. Talvacchia argued the cause for appellant (Cooper, Levenson, April, Niedelman & Wagenheim, P.A., attorneys; Mr. Talvacchia, of counsel; Fredric L. Shenkman, on the briefs).

Dean R. Marcolongo argued the cause for respondent Avalon Board of Adjustment (Nathan Van Embden, attorney; Mr. Marcolongo, on the brief).

Stephen D. Barse argued the cause for respondents Borough of Avalon and Jeffrey R. Hesley (Gruccio Pepper DeSanto & Ruth, attorneys; Mr. Barse, of counsel and on the brief).

Salvatore Perillo argued the cause for respondents Cary and Mary Ann C. Toner (Nehmad Perillo & Davis, attorneys; Mr. Perillo, on the brief).

PER CURIAM

In this action in lieu of prerogative writs, plaintiff, the Palopoli Family Trust, Frank C. Palopoli and James R. Koller, Esq., Trustees (Palopoli or plaintiff), appeals from the order of the Law Division entering judgment in favor of defendants Carey and Mary Ann Toner (the Toners or defendant), and upholding the resolution of Avalon's Zoning Board of Adjustment (Board) issuing the Toners a building permit for the construction of a residence, and finding the borough's oversized lot ordinance not applicable to the Toner property. We affirm.

By way of background, the Toners own property located in an R1-C Zone at 74 East Ninth Street in the Borough of Avalon. Adjacent to the Toner property is the Palopoli property, owned by the Palopoli Family Trust, also in the R1-C Zone, at 66 East Ninth Street. The Toner property is irregularly shaped, with 50 feet of lot frontage, a depth of 110 feet, a length of 160 feet at the rear of the property, and on the easterly side, a length of 15.76 feet and 144 feet. For present purposes, the only relevant dimension is the Toner lot's frontage of 50 feet, which corresponds with the R1-C Zone's minimum requirement of 50 feet for lot frontage. In comparison, the Palopoli property is rectangular, with 75 feet lot frontage and 110 feet in depth. The Toner property is 1.5 times larger than the Palopoli property.

After obtaining title to the Palopoli property on January 8, 2007, plaintiff demolished the existing single family dwelling to construct a new residence. Plaintiff was advised, however, that the proposed construction was subject to the borough's oversized lot ordinance, which required that any rectilinear parcel with lot frontage 25% over the minimum 50 feet and lot width over 25% of the minimum must have extended side setbacks. Specifically, section 27-7.3R of Avalon's zoning ordinance, titled "Oversized Lot Yard Requirements," provides:

In order to preserve light and air, where a parcel in any residential zone exceeds the minimum lot frontage requirements of the zone, by 25% or more, the minimum and total side yard areas shall be increased proportionally with the lot frontage and,

Where the lot is rectilinear in shape, the lot width at the front and rear lot building setback lines must exceed the minimum lot frontage of the district by 25% or more in order for this requirement to apply or,

Where the lot is irregular in shape the average of the lot width at the front building setback line and the rear building setback line must exceed the minimum lot frontage requirements of the zone by 25% or more.

The equation shall read as follows:

Y = (X)(Z)

Where X = Minimum Total and Minimum Required Side Yard

And Y = The Additional Total Minimum Required Side Yard Setback for Property

And Z = Percentage that Lot Exceeds Minimum Frontage Requirements of the Zone

Plaintiff thus increased its property's side setbacks adjacent to the Toner property from the minimum 8 feet to 12 feet, and established a combined side setback of 27 feet. In all other respects, plaintiff complied with the ordinance's requirements.

The Toners' plan for their property was similar to plaintiff's, except for one difference. After the Toners acquired their property in November 2005 and demolished the 2500 sq. ft. existing residence, their plan for a new 7500 sq. ft. residence just 8 feet from the Palopoli property line was permitted by the borough. In an opinion dated October 12, 2007, Jeffrey Hesley, the borough's zoning officer, determined that because the Toners' lot frontage was only 50 feet, it did not exceed by 25% or more the minimum lot frontage, and was therefore exempt from the setback requirements of the oversized lot ordinance.

Plaintiff appealed Hesley's decision not to enforce the ordinance against the Toners to the Board and requested an interpretation of the ordinance. The record before the Board indicates that the ordinance corresponded to the goals of the Master Plan, which Hesley, who was present during the drafting of the Master Plan, explained was to prevent owners of parcels with over 50 feet in lot frontage, obtained by having joined two lots at some point in the parcel's history, from building monolithic houses that would block out views and light. Hesley further explained that at the time, the borough was not concerned about lot frontages less than 50 feet because even though on irregular parcels the rear line may be over 50 feet, the risk of building monolithic houses was less without enough frontage.

Following a hearing on plaintiff's appeal, the Board, in a resolution dated January 8, 2008, determined that "Section 27-7.3R is not applicable to [the Toner] property since the lot frontage of this lot does not exceed the Zone minimum lot frontage by 25%" and that "the decision of the Zoning Officer to issue a building permit to the Toners without requiring the increased setbacks pursuant to the formula set forth in Section 27-7.3R was correct and valid pursuant to the Borough of Avalon Zoning Ordinance."

Plaintiff then filed an action in lieu of prerogative writs in the Law Division, challenging the Board's decision. At the ensuing hearing, plaintiff argued that the Board's interpretation was incorrect, and that essentially paragraph 1 of the ordinance was a stand-alone provision that is informed by paragraphs 2 and 3 to determine the width of the parcel depending on its shape. Plaintiff thus concluded that paragraph 1 was only designed to reveal the 62.5 feet threshold requirement for extended setbacks, but that paragraph 3, which applied to the Toners' irregularly shaped property, was designed to determine if that threshold was met. Based on plaintiff's calculations, the average lot width for the Toner property is 92 feet, well over the threshold, and therefore, the Toner property would be oversized and the ordinance would apply.

Defendants disagreed and offered a contrary interpretation. According to defendants' construction of the ordinance, paragraph 1 ended with the word "and," negating the plaintiff's argument that it was a stand-alone provision; and also paragraph 1 focused on lot frontage, not lot area as plaintiff incorrectly represented. Defendants also pointed out that, in any event, plaintiff's argument fails when the ordinance's Y = (X)(Z) calculation is used because "Z" is expressly defined as the "Percentage that Lot Exceeds Minimum Frontage Requirements," which in this case is indisputably zero, and thus "Y," the required setback, will always be zero.

The Law Division judge agreed with defendants and upheld the Board's decision, finding that "the interpretation placed upon the language [of the ordinance] by the Board is rational, it is apparently consistent with interpretations that they had made in other instances in matters that have come before them, and it is not possible for me to say that that interpretation doesn't make sense, or in some subjective way shouldn't, by some standard I'm not clear of, shouldn't be applied to the property in this case." The judge also considered the curb cut issue, finding that "[u]sing the street, by definition, as far as I'm concerned, obviously, is not a problem" because the Toner driveway is being built "at the expense of the public right-of-way rather than at the expense of any land that [plaintiff] owns." Accordingly, an order of judgment was entered in favor of defendants, from which this appeal is taken.

(i)

Plaintiff first complains that the trial court failed to apply a de novo standard of review, and instead improperly deferred to the Board's ordinance interpretation. We disagree.

As a threshold matter, "[w]e acknowledge 'that when a reviewing court is considering an appeal from an action taken by a planning board, the standard employed is whether the grant or denial was arbitrary, capricious or unreasonable.'" Dowel Assocs. v. Harmony Twp. Land Use Bd., 403 N.J. Super. 1, 29 (App. Div.) (quoting Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 560-62 (App. Div. 2004)), certif. denied, 197 N.J. 15 (2008). "The purpose of judicial review is for the court to determine whether or not the board acted within the statutory guidelines and properly exercised its discretion." Id. at 30.

Of course, "[a]s with other legislative provisions, the meaning of an ordinance's language is a question of law that we review de novo." Bubis v. Kassin, 184 N.J. 612, 627 (2005). Even so, a municipality's informal interpretation of an ordinance is entitled to deference. Ibid. And while that deference is not limitless, ibid., nevertheless, in divining legislative intent, the Board's interpretation will necessarily inform the court's de novo review because "the Planning Board has input into the adoption of a master plan, N.J.S.A. 40:55D-28, as well as the adoption or amendment of a zoning ordinance, N.J.S.A. 40:55D-64" and "can be expected to have more than a passing knowledge of the legislative intent at the time of the enactment." Atlantic Container, Inc. v. Twp. of Eagleswood Planning Bd., 321 N.J. Super. 261, 269 (App. Div. 1999).

Based on our review of the record, we are satisfied that the trial judge correctly construed the ordinance in furtherance of its underlying legislative purpose and in favor of the municipality, id. at 270, by giving the Board the level of deference due, while still maintaining an independent conclusion that "I see nothing in this record which compels, much less permits, me to determine that the Board's interpretation was erroneous." But even applying a strictly de novo review, we need look no further in divining the municipality's intent than the express language of the ordinance which, in our opinion, admits of only one interpretation, see Wynfield Corp. v. Killam Assocs., 385 N.J. Super. 20, 32 (App. Div. 2006), and that being the one adopted by both the Board and the trial court.

(ii)

Our independent reading of the ordinance persuades us that the Toner property is exempt from the ordinance's extended side yard setback requirements. Paragraph 1 of the ordinance ends with the word "and," which clearly indicates that it is not a stand-alone provision, but rather a threshold requirement that must be satisfied before paragraphs 2 and 3 are triggered. Thus, contrary to plaintiff's suggestion, a plain and natural reading of the ordinance requires an "if-and-then" approach: if an irregular lot exceeds the minimum frontage (50 feet) by 25% or more and the average of the lot width at the front and rear setbacks exceeds the minimum lot frontage requirements by 25% or more, then the minimum and total side yard setbacks shall be increased proportionally with the lot frontage. The Toners' property has an undisputed lot frontage of 50 feet or less, which does not exceed the minimum frontage by 25% or more. Thus, the ordinance's threshold requirement for extended side yard setbacks has not been met; in fact, as noted, to exceed 25%, the lot frontage would have to be 62.5 feet.

Moreover, no where does the ordinance refer to lot area. Instead, it expressly specifies "frontage." The intent to use lot frontage as the trigger is further evidenced by the ordinance's Y = (X)(Z) calculation. "Z" is expressly defined as the "Percentage that Lot Exceeds Minimum Frontage Requirements," (emphasis added), which in this case is indisputably zero; and thus, "Y," the required setback, will always be zero. We conclude, therefore, that the Toners' property does not require extended side yard setbacks.

(iii)

Lastly, plaintiff argues that the trial court erred in not considering its appeal of Hesley's approval of a curb cut partially in front of the Palopoli property. We disagree. The judge expressly considered this issue at the start of the August 22, 2008 hearing and concluded that "[u]sing the street, by definition, as far as I'm concerned, obviously, is not a problem" because the Toner driveway is being built "at the expense of the public right-of-way rather than at the expense of any land that [plaintiff] owns."

This determination was proper. Plaintiff's argument to the contrary - that the zoning official was without authority to allow a portion of the driveway to be constructed on a public access way because "pursuant to N.J.S.A. 40:67-1, access rights in the public right of way can only be granted by an ordinance setting forth the time, manner and terms upon which such access that shall be made" - is based on an incorrect reading of N.J.S.A. 40:67-1. That statute neither requires a municipality to adopt an ordinance allowing homeowners access to their driveways across public right-of-ways, nor prohibits a curb cut from being partially located on a public right-of-way in front of but not on a neighbor's property. See N.J.S.A. 40:67-1. Here, nothing in the record indicates that the proposed location of the Toners' driveway would violate the law or burden plaintiff's rights. The Borough has not passed an ordinance prohibiting or granting driveway access across public right-of-ways. The curb cut does not trespass on plaintiff's property or interfere with plaintiff's access to his property. And it is being proposed in the same location as the driveway of the Toners' original house before it had been demolished. Thus, there is simply no reason to prohibit the Toners' proposed driveway.

Affirmed.

Thus, any property exceeding 62.5 feet in lot frontage, such as the Palopoli's lot, must comply with the oversized lot ordinance.

In that same opinion, Hesley determined that the curb cut of the Toners' proposed driveway was also permitted because it was part of the public right-of-way and did not trespass on plaintiff's property.

"The governing body of every municipality may make, amend, repeal and enforce ordinances to . . . [p]rescribe the time, manner in which and terms upon which persons shall exercise any privilege granted to them in the use of any street, highway, alley, or public place, or in digging up the same for laying down rails, pipes, conduits, or for any other purpose whatever[.]" N.J.S.A. 40:67-1c (emphasis added).

(continued)

(continued)

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A-0387-08T1

April 7, 2009