WALTER M. WALL A v. THE PLANNING BOARD OF THE BOROUGH OF BRIELLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0498-08T30498-08T3

WALTER M. WALL AND

ELIZABETH A. WALL,

Plaintiffs-Respondents,

v.

THE PLANNING BOARD OF THE

BOROUGH OF BRIELLE,

Defendant-Appellant.

_________________________________

 

Argued April 27, 2009 - Decided

Before Judges Carchman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-633-08.

Peter H. Wegener argued the cause for appellant (Bathgate, Wegener & Wolf, P.C., attorneys; Mr. Wegener of counsel; Dean J. Morris, on the briefs).

C. Keith Henderson argued the cause for respondents (C. Keith Henderson & Associates, attorneys; Mr. Henderson, of counsel and on the brief).

PER CURIAM

Defendant Planning Board of the Borough of Brielle (Board) appeals from the August 12, 2008 Law Division order vacating its denial of the application of plaintiffs Walter and Elizabeth Wall for minor subdivision approval and bulk variances for their property designated as Lot 8, Block 64.03 and commonly known as 643 Rankin Road (the property). We affirm.

The following facts are relevant to our review. The property is an oversized lot with a 20 foot frontage on Rankin Road and a 100 foot frontage on Susan Lane. Ingress and egress is from Rankin Road. Located on the property is a two-and-one-half story single-family home built in 1930, a swimming pool, a shed, and a driveway. The home is considerably larger than other homes in the area and is referred to as "the mansion." The mansion is situated on the lot with the architectural sides facing Rankin Road and the rear lot line, and with the front and back of the mansion facing the side yards of adjoining neighbors. Plaintiffs purchased the property in 1996.

On or about January 31, 2007, plaintiffs applied for a minor subdivision with four bulk variances to divide the property into two lots, Lot 8.01, having 15,062 square feet, and Lot 8.02, having 28,396 square feet. Lot 8.01 would front on Susan Lane and be free for development. The mansion would remain on Lot 8.02 and the lot would front Rankin Road. Joseph and Jennifer McGuire, owners of property adjacent to proposed Lot 8.01, objected to the application.

Once divided, the proposed areas of both lots would exceed the required minimum lot area required by the Borough's Zoning Ordinance and would be consistent with the area's character. Lot 8.01 would fully conform with all applicable zoning ordinances and would require no variances. However, Lot 8.02 required the following variances due to the mansion's location: (1) a front yard adjoining a municipal right-of-way variance (40 feet was required and 20.93 feet was proposed); (2) minimum lot width variance (100 feet was required and 20.93 feet was proposed); (3) a principal structure front yard setback (40 feet was required and 13.35 feet was existing and proposed); (4) accessory building side setback (5 feet was required and 4.1 feet was existing); and (5) rear yard setback (40 feet was required and 18.25 feet was proposed).

Plaintiffs claimed entitlement to the first two variances because the "exceptional narrowness, shallowness and or shape of [the] property . . . would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon [them]." N.J.S.A. 40:55D-70c(1)(a). Plaintiffs claimed entitlement to the other variances because the location of the existing structure created an "exceptional situation uniquely affecting the [mansion] lawfully existing" on proposed Lot 8.02. N.J.S.A. 40:55D-70c(1)(c). Plaintiffs further claimed entitlement to the variances pursuant to N.J.S.A. 40:55D-70(c)(2), claming that the purposes of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to-163, would be advanced by a deviation from the Zoning Ordinance, and the benefits of the deviation would substantially outweigh any detriment.

During hearings before the Board, plaintiffs' expert professional engineer, Charles Gilligan, testified about the affect the creation of the lots would have on the property's gas, water, and sewer lines. He also confirmed that approximately twenty-five percent of proposed Lot 8.02 drained in the direction of Susan Lane; however, the down spouts next to the mansion would be funneled into a dry well on Lot 8.02, and would serve as an attenuation of any runoff coming from the site.

Gilligan also prepared a Grading Plan showing that a house could be built on Lot 8.01, which would have its own self-containing drainage so as to not affect any neighboring properties. Gilligan noted that plaintiffs agreed to install the proposed drainage system as a condition of approval, and would do so prior to perfection of the subdivision. Gilligan's testimony was undisputed and the Board's engineer agreed with the drainage plan.

Plaintiffs' expert professional planner, Allison Coffin, testified that despite having conforming frontage on Susan Lane, the property functions as a flag lot. She opined that the requested variances were technical in nature and that they met the requirements of N.J.S.A. 40:55D-70c(1) because they all relate to the existing mansion and lot shape. Specifically, she noted that "[t]he lot currently has a flag lot configuration to the one frontage [Rankin Road]. All access is provided currently via that flag, so in essence they're not creating a new flag lot."

Coffin also opined that the requested variances met the requirements of N.J.S.A. 40:55D-70c(2) because the proposed subdivision would advance the purpose of the MLUL with respect to appropriate population density. She testified that the proposed lot areas exceed the required lot area minimum, and the proposed use of both lots is consistent with the character of the development pattern of the surrounding area and more in character than the existing oversized lot, which is more than one-and-one-half times the size of the next largest existing residential lot in the area.

Coffin also opined that the proposed subdivision would advance the MLUL's purpose with respect to promoting a more efficient use of the land. She testified that having a significantly lower density than permitted resulted in an underutilization of the property and existing infrastructure.

Coffin also opined that there was no substantial detriment to the public good because the benefits of the proposed variances outweigh the detriments. She further opined that an approval of the variances would not substantially impair the intent and purpose of the Master Plan and Zoning Ordinance because they permitted the proposed uses and density. Coffin's testimony was undisputed.

The McGuires' counsel asked Coffin about the possibility that a prior owner's subdivision applications in 1963 and 1964 created a self-created hardship relating to the frontage deficit on Rankin Road. However, Coffin had no knowledge of any prior subdivisions. Following the hearing, it was determined that the 1963 and 1964 subdivision applications, as well as corresponding maps, had been provided to the Board and the McGuires, but not to plaintiffs or their expert.

Plaintiffs were permitted to re-call Coffin at the next hearing. Coffin reviewed the documents and acknowledged that the property's current configuration resulted from a 1964 subdivision application; however, she opined that there was no self-created hardship in plaintiffs' case. She categorized the history of the property as "muddled," and noted that "there appears to be no record of resolutions which indicate what, if any variances were previously granted and what logic the Board at that time used in rendering its decision." There is no evidence that the 1963 or 1964 applications were perfected, and no proof that the 1963 application was approved.

Coffin also reiterated her opinion that without the requested variances, the property's current configuration would constitute a substantial underutilization, and that the proposed use was more consistent with the density encouraged by the MLUL.

Coffin testified that there was a hardship related to the shape of the property and that even if the Board found it self-created, it would not impact the requested N.J.S.A. 40:55D-70c(2) variance because the application advanced a number of MLUL purposes. She also testified that the benefits of the variances outweighed the detriments by advancing the purposes of the MLUL, and would provide for more harmonious lot sizes by correcting the property's existing underutilization. She further testified that there was no significant detriment to the public good because the variances were created by existing conditions. Again, Coffin's testimony was undisputed.

The McGuires presented no expert testimony. Instead, Joseph McGuire testified that his property allegedly suffers from poor drainage conditions resulting from its downhill location from the property. He also testified about his concern that development on Lot 8.01 would exacerbate the wet conditions on his land. However, he admitted that he opposed the subdivision because he did not want the neighborhood to change. He also admitted that he would oppose the subdivision even if plaintiffs ameliorated the drainage problems before or during the development of Lot 8.01.

The Board voted three-to-two to deny the application, with the two denials based mainly on the alleged drainage problem the McGuires presented. On January 8, 2008, the Board memorialized its vote in a resolution, the pertinent provisions of which are as follows:

WHEREAS, the Board makes the following factual findings and findings of law:

(f) The board rejects the application of the C(2) flexible variance criteria being applied to this development application because the impact of the proposed development does not outweigh the resulting detriments. The resulting detriments are variance conditions of inadequate lot frontage and lot width, where conforming lot frontage and lot width now exist, and the creation of a third variance relating to the rear yard setback distance. Part of the testimony relating to entitlement on a C(2) basis concerned the orientation of the house to produce a functional front yard to the northwest of the lot and a functional rear yard at the southeast of the lot. The Board notes that these functional front and rear yard[s] . . . face the side yards of adjacent residential properties.

(g) Insufficient testimony has been provided to demonstrate a hardship under the C(1) criteria of the statute.

(h) Insufficient testimony has been provided to warrant relief under the C(2) criteria of the statute because there is inadequate evidence to demonstrate that the possible benefits of the land development plan outweigh its detriments. The proposed plan creates a new nonconforming lot which is contrary to the zone plan and zoning ordinance.

(i) The testimony of [objectors] describes a severe condition of water runoff from the existing lot in a westerly and southerly direction. If proposed lot 8.01 is severed from the existing tract, it would no longer be available in its natural state to absorb stormwater flowing over that property towards Susan Lane.

(j) The relief requested cannot be granted without substantial detriment to the public good and will not [sic] substantially impair the intent and purpose of the zoning ordinance and master plan of the municipality.

Plaintiffs filed a complaint in lieu of prerogative writs. In an oral opinion, Judge Cleary set aside the Board's decision as arbitrary, capricious, and unreasonable. As to the N.J.S.A. 40:55D-70c(1) criteria, the judge found the Board's argument as to self-created hardship untenable because there was insufficient evidence regarding whether the actions of the prior owner created a hardship, and because the current application was based on underutilization, not on hardship, relating to frontage. Additionally, the judge found there was no evidence supporting the Board's finding that the property was designed to be a conforming lot by providing frontage of 100 feet along Susan Lane. Rather, the evidence indicated that since 1963, the property had frontage on both Susan Lane and Rankin Road that was unaffected by any prior application. Finally, the judge found that Coffin's undisputed testimony provided sufficient proof of "hardship relating to [the mansion] on the property, including the side yards, which related to the current existence of the lot."

As to N.J.S.A. 40:55D-70c(2), the judge found that Coffin's undisputed testimony proved that granting the variances would advance the purposes of the MLUL. The judge emphasized that the Board's finding of detriment was non-specific and conclusory. The judge also rejected the Board's finding relating to the alleged drainage problem because it was not supported by expert testimony, and was rebutted by Gilligan's undisputed expert testimony.

On August 12, 2008, the judge entered judgment against the Board granting the variances and minor subdivision relief plaintiffs requested, and ordering the Board to execute a deed perfecting the minor subdivision. This appeal followed.

In reviewing a planning board's decision, we use the same standard used by the trial court. Cohen v. Bd. of Adjustment of the Borough of Rumson, 396 N.J. Super. 608, 614-15 (App. Div. 2007) (citing New York SMSA, Ltd. P'ship v. Bd. of Adj., Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004)); Pullen v. Twp. of S. Plainfield Planning Bd., 291 N.J. Super. 1, 6 (App. Div. 1996). Like the trial court, our review of a planning board's decision is limited. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 308, 327 (1998). We give deference to a planning board's decision and reverse only if its action was arbitrary, capricious, or unreasonable. Zilinsky v. Zoning Bd. of Adj. of Verona, 105 N.J. 363, 367 (1987); Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965); Cohen, supra, 396 N.J. Super at 620. We give even greater deference to a planning board's decision to deny a variance in preservation of a zoning plan than a decision to grant a variance. Nextel of New York, Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 38 (App. Div. 2003). Where a planning board has denied a variance, the applicant must prove that the evidence before the board was "'overwhelmingly in favor of the applicant.'" Ibid. With these standards in mind, we continue our analysis.

To obtain a variance pursuant to N.J.S.A. 40:55D-70c, the applicant must satisfy the "positive criteria" and "negative criteria" embodied in N.J.S.A. 40:55D-70c(1) and (2). Cell S. of N.J. v. Zoning Bd. of Adjustment, 172 N.J. 75, 82 (2002). As to the positive criteria, N.J.S.A. 40:55D:70c(1) states, in relevant part:

Where: (a) by reason of exceptional narrowness, shallowness or shape of 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 . . . 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[.]

[(Emphasis added).]

As to the negative criteria, N.J.S.A. 40:55D-70c(2) states, in relevant part:

where in an application or appeal relating to a specific piece of property the purposes of this act . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from [the Zoning Ordinance].

N.J.S.A. 40:55D-70c(2) permits a variance where the purposes of the MLUL would be advanced, where the variance sought will not be a detriment to the public good, and where the variance is not inconsistent with the intent and purpose of the master plan and zoning ordinance. New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 6 (1999); Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 553 (1988); Medici v. BPR Co., 107 N.J. 1, 2-22 (1987).

Based upon our careful review of the record, we are satisfied that plaintiffs are entitled to the requested variances pursuant to N.J.S.A. 40:55D-70c(1) and (2). Coffin undisputedly established that all of the requested setback variances relate to a "structure[] lawfully existing" on the "property" and to the property's "exceptional narrowness" and peculiar "shape." The mansion, a "lawfully existing structure," was built in 1930, before enactment of the Zoning Ordinance, the MLUL and the construction of Susan Lane, and before any subdivision applications. The mansion's location creates the need for the rear lot variance. N.J.S.A. 40:55D-70(c)(1) applies to variances sought because of the location of structures lawfully existing on the property. Lang v. Zoning Board of Adjustment, 160 N.J. 41, 52 (1999); Hawrylo v. Board of Adjustment, 249 N.J. Super. 568, 578-579 (App. Div. 1991). Finally, the existing property functioned as a flag lot with 20 feet of frontage on Rankin Road. There is no land available on the side to acquire additional land to cure the nonconformity.

Coffin also established the hardship caused by the excessive depth of the property and its underutilization, which we agree was not self-created by the prior owner. The property is a "through lot" as defined in Section 21-9.12 of the Zoning Ordinance. Accordingly, plaintiffs have the right to specify which lot line would be the front line for construction of a structure on Susan Lane at such time as an application is made for a building permit. This right is unaffected by the prior owner's 1964 application because the Zoning Ordinance was not in effect in 1964, and because the application did not involve a building permit, as required by the Zoning Ordinance. Also, there is no evidence that the 1964 application created a hardship.

Coffin further established that the benefits of the requested relief substantially outweigh any detriment, and that the requested relief advanced the purposes of the MLUL, including a more efficient use of the land, and the establishment of appropriate population densities.

Finally, Coffin established that there was no detriment to the public good, that the benefits of the requested variances outweighed the detriments, and that the variances were not inconsistent with the intent and purpose of the master plan and Zoning Ordinance. The requested variances would result in drainage improvements; proposed Lot 8.01 fully conforms to all other lots on Susan Lane and will be in keeping with the character of the neighborhood; Lot 8.02 already functioned as a flag lot; and all variances affecting Lot 8.02 were based on preexisting conditions.

We are satisfied that the evidence before the Board was "overwhelmingly in favor of" plaintiffs." Nextel, supra, 361 N.J. Super. at 38. Plaintiffs satisfied the standard of proof for both the positive criteria and negative criteria, entitling them to the requested relief. There was no evidence to the contrary. The trial judge properly found the Board's denial of plaintiffs' requested minor subdivision and the variances was arbitrary, capricious, and unreasonable.

 
Affirmed.

The McGuires' attorney is representing the Board on this appeal and the McGuires are financing this appeal on the Borough's behalf. We question the propriety of such an arrangement.

The Zoning Ordinance was passed in 1972.

(continued)

(continued)

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A-0498-08T3

July 9, 2009