ROBERTA L. STONEHILL v. MAGEE FAMILY TRUST

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3151-08T23151-08T2

ROBERTA L. STONEHILL,

Plaintiff-Appellant,

v.

MAGEE FAMILY TRUST and the

TOMS RIVER PLANNING BOARD,

Defendants-Respondents,

and

E. ALLEN MACDUFFIE, JR.,

(in his official capacity as trustee,

attorney, and individually).

Defendant.

 

 

Submitted May 26, 2010 - Decided

Before Judges Sabatino and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2582-08.

Roberta L. Stonehill, appellant pro se.

Law Office of E. Allen MacDuffie Jr., attorney for respondent Magee Family Trust (E. Allen MacDuffie, Jr., on the brief).

Hiering, Gannon & McKenna, attorneys for respondent Toms River Planning Board (Thomas G. Gannon, on the brief).

PER CURIAM

This is an appeal from the final judgment in an action in lieu of prerogative writs in which the Law Division affirmed the approval of a two-lot minor subdivision and several dimensional variances. We affirm.

I.

In April 2007, defendant Magee Family Trust (Trust), through its sole member, E. Allen MacDuffie, purchased real property a corner parcel located at the intersection of George Road and Second Avenue in Toms River. The land at issue is located within that municipality's R-75 Residential Zone, and is comprised of contiguous lots 8 and 9 in block 1080.08. The lots had been merged since as early as February 2, 1965, when the then-owners conveyed the land as a single parcel to one of the Trust's predecessors-in-title. The combined property measures 100 feet along George Road and 120 feet along Second Avenue.

At the time of the Trust's acquisition, the land was subject to "Chapter 348, Land Use and Development Regulations, of the Code of the Township of Toms River, County of Ocean, New Jersey," specifically 348-10.13, which governed the land uses and dimensional controls in the R-75 Residential Zone. Pertinent to this appeal, the minimum lot dimensions required an area of 7,500 square feet; width of seventy-five feet; and frontage of 100 feet on both bordering streets (because it was a corner lot). The merged lot itself conformed with all applicable zoning regulations, but it had been improved with a dwelling that was discordant with the required two-street front yard setbacks. Thus, a nonconforming structure was located on the property, and was used for permitted residential purposes.On February 15, 2008, the Trust filed an application with defendant Toms River Township Planning Board (Board) to obtain minor subdivision approval in order to divide the property into two undersized lots: lot 9.01, which would contain the nonconforming dwelling, and lot 8.01, which would include a newly constructed dwelling, to be built later. Each new lot's perimeter dimension would be fifty feet by 120 feet (comprising an area of only 6,000 square feet), and proposed lot 9.01 required aside from the pre-existing front yard discordances a newly-minted side yard setback variance. This dimensional variance was required because the existing dwelling encroached into the newly-created side yard of proposed lot 9.01. No additional dimensional variances were necessitated as a result of the location of the proposed new dwelling. The diagram below depicts the proposed subdivision:

 

At the first public hearing, the Trust called Ray Carpenter a professional planner and engineer to testify as an expert witness on its behalf. Carpenter's testimony indicated that almost ninety percent of the lots in the neighborhood were similar in size and dimension to the proposed subdivided lots, specifically measuring fifty feet by 120 feet in size: "[t]here's a total of 103 lots in those eight blocks, of which only [eleven] lots conform to the R-75 requirements." However, depending upon house placement on or common ownership of the property, "a total of [twenty-two] lots out of a total of 103 lots" were compliant with the R-75 zoning requirements. He further noted that "the predominance of the area, as you will see, all the houses, or all the lots, are predominately occupied by one house on a [fifty foot] by 120 foot lot." Carpenter's ultimate opinion was that "what we're proposing is appropriate development for this neighborhood and that meets part of the conditions of the [(c)(2)] variance as far as the Municipal Land Use Law is concerned."

After this hearing, and before the second hearing on July 23, 2008, Board members made several site visits to the property in question. One Board member noted that the proposed subdivision did not render the real property any different from the majority of the surrounding parcels in the area. As the Board also considered Toms River's Master Plan, the Board's professional planner noted that "there are single-family residential districts where the zoning does not appear to be in accord with the character of development in the district . . . there is a disparity and . . . when time is available . . . [we will] conform [the] zoning to the character of the district." By a vote of four to two, the Board granted the subdivision application and related variances.

On August 6, 2008, the Board memorialized this determination in a written resolution. There, the Board explained its reasoning why it approved the subdivision and variances, specifically determining:

The board finds that the shape of the property warrants the granting of the variance.

* * *

[T]he positive criteria has been met when weighed against the negative criteria for a [(c)(2)] variance. The majority of the lots in the neighborhood had widths no greater than 50' as proposed by the developer.

* * *

[T]his application can be granted without substantial negative impact to the public good, the neighborhood and the zone plan of the Township of Toms River.

Subsequently, plaintiff filed a three-count complaint in lieu of prerogative writs that sought to: (1) undo the Board's action, (2) enjoin the Trust from conveying the subdivided lots, and (3) impose upon the Board an injunction to "cease and desist from the granting of applications that do not follow the law and that are not grand-fathered or justified under any exception to the Municipal Land Use Law, statutory authority, controlling Zoning Ordinance, and/or relevant law."

The trial was conducted by Judge Craig L. Wellerson on January 16, 2009, who affirmed the determination of the Board. In so doing, Judge Wellerson commented as follows:

The Planning Board, in the Court's opinion, showed great deference to the concerns of the neighbors; that they did not rush to judgment in this application, and they made certain adjustments to the application as it was initially submitted.

The Court [is] satisfied that their attention to detail in this matter is reflective of the fact that, in fact, a great deal of balancing went on in the minds of the [Planning] Board's members; that they needed to satisfy themselves that, before the relief could be granted, that the zone plan, the Master Plan and, essentially, the neighborhood scheme would not be adversely impacted by the grant of this variance.

* * *

They made two separate analyses, had sufficient questions, both of their own professional planner, who was at the meeting, as well as the applicant's engineer and planner, and satisfied themselves that the development of the two lots which were being proposed was a better choice than strict compliance with the zoning requirements of the R-75 Zone.

On January 20, 2009, the court entered an order affirming (with a modification due to a typographical error) the decision of the Board. This appeal followed, which seeks review solely of the January 20, 2009 final judgment.

During the pendency of this appeal, plaintiff also applied to the Law Division for an injunction in an effort to prevent the sale of the subject property and to restore the Notice of Lis Pendens nunc pro tunc. On July 2, 2009, Judge Wellerson denied this application in an order stating, "[d]enied, non-emergent. Matter is now under appeal."

On September 1, 2009, this court similarly denied plaintiff's motion for a stay with restraints; for counsel fees and costs; and for the reinstatement of the Notice of Lis Pendens nunc pro tunc.

We have thoroughly considered all of plaintiff's well-developed arguments, but conclude that they lack merit. We affirm substantially for the same reasons expressed by Judge Wellerson, but add the following observations.

II.

A.

We start with fundamental principles. The touchstone for all certiorari-like appellate review in connection with land use actions in lieu of prerogative writs is the deferential standard. Courts "will give substantial deference to findings of fact, [however,] it is essential that the board's actions be grounded in evidence in the record." Fallone Properties, L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). "We 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, supra, 369 N.J. Super. at 560-62), 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.

Judges are in the least advantageous position to administer the peculiarly native determinations that are critical for a local zoning scheme to operate successfully. We acknowledge such limitations and instead commend to local land use agencies the primary authority in that sphere because their members "are thoroughly familiar with their community's characteristics and are the proper representatives of its people [and] are undoubtedly best equipped to pass initially on such applications." Lang v. Zoning Bd. of Adj. of N. Caldwell, 160 N.J. 41, 58 (1999) (quoting Kramer v. Bd. of Adj. of Sea Girt, 45 N.J. 268, 296 (1965)). Local zoning boards "must be allowed wide latitude in the exercise of delegated discretion." Ibid. (citing Kramer, supra, 45 N.J. at 296-97). Thus, "there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved." Kramer, supra, 45 N.J. at 297 (citing Ward v. Scott, 11 N.J. 117 (1952)); see also Simeone v. Zoning Bd. of Adj. of E. Hanover, 377 N.J. Super. 417, 426 (App. Div. 2005).

B.

Plaintiff argues that the Trust was not entitled to the requested dimensional variances, which were prerequisites to the subdivision approval, pursuant to N.J.S.A. 40:55D-70(c)(2). This provision, allowing the flexible exercise of discretion pursuant to the Municipal Land Use Law (MLUL), places the burden of demonstrating affirmative criteria on the applicant:

where in an application or appeal relating to a specific piece of property the purposes of [the MLUL] . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, [a Board of Adjustment or Planning Board may] grant a variance to allow departure from regulations.

[N.J.S.A. 40:55D-70(c)(2).]

The statute also requires that negative criteria of N.J.S.A. 40:55D-70 must also be met. That is, a (c)(2) variance can be granted only if it is "without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70.

With respect to a (c)(2) application, the Supreme Court has said:

[b]y definition, then, no c(2) variance should be granted when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property. The focus of a c(2) case, then, will be not on the characteristics of the land that, in light of current zoning requirements, create a "hardship" on the owner warranting a relaxation of standards, but on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community.

[Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 563 (1988).]

However, "[a] 'c(2)' variance is not necessarily unavailable because the applicant has created the condition which requires the variance." Green Meadows at Montville, L.L.C. v. Planning Bd. of Montville, 329 N.J. Super. 12, 22 (App. Div. 2000).

Also, when analyzing a (c)(2) variance application, land use agencies and courts alike must consider the request in light of the totality of the circumstances, not "in isolation, but

. . . in the context of its effect on the development proposal, the neighborhood, and the zoning plan." Pullen v. Twp. of S. Plainfield Planning Bd., 291 N.J. Super. 1, 9 (App. Div. 1996). This organic approach to land use determinations ensures that the public interest fostered by the MLUL is encouraged, without necessarily diluting the collateral advantage that might be enjoyed by the applicant if the proposed deviation from zoning regulations were allowed.

A (c)(2) variance is not based upon hardship but instead "requires a balancing of the benefits and detriments from the grant of the variance." Bressman v. Gash, 131 N.J. 517, 523 (1993) (citing Kaufmann, supra, 110 N.J. at 558-60). The analysis focuses on advancing both the purposes of the MLUL and the benefits to the community.

The necessary elements for a (c)(2) variance include:

(1) [that it] relates to a specific piece of property; (2) that the purposes of the Municipal Land Use Law would be advanced by a deviation from the zoning ordinance requirement; (3) that the variance can be granted without substantial detriment to the public good; (4) that the benefits of the deviation would substantially outweigh any detriment and (5) that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance.

[William M. Cox, New Jersey Zoning and Land Use Administration, 6-3.3 at 160 (Gann 2010) (citing Wilson v. Brick Twp. Zoning Bd., 405 N.J. Super. 189, 198 (App. Div. 2009); Green Meadows, supra, 329 N.J. Super. at 22; Ketcherick v. Boro. of Mountain Lakes Bd. of Adj., 256 N.J. Super. 647, 657 (App. Div. 1992)).]

A land use agency that grants a (c)(2) variance ordinarily must set forth what purposes of the MLUL will be advanced by granting the requested variance. Plaintiff argues that because the Board did not expressly identify a specific purpose of the MLUL, the instant application therefore furthers none of its goals, and is designed only to fatten the Trust's bank account. As inferentially noted by the trial court, however, the application does in fact plainly advance the following three purposes of the MLUL:

a. To encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare;

* * *

e. To promote the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, communities and regions and preservation of the environment;

* * *

g. To provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space, both public and private, according to their respective environmental requirements in order to meet the needs of all New Jersey citizens.

[N.J.S.A. 40:55D-2(a), (e) and (g).]

In Kaufmann, the New Jersey Supreme Court held that there was sufficient public benefit to warrant a (c)(2) variance, as it "effectuate[d] the goals of the community as expressed through its zoning and planning ordinances." Kaufmann, supra, 110 N.J. at 564. The decision was based in part upon the conformity of a partitioned lot in relation to other similarly configured properties in the neighborhood, and to the municipality's goal of "discouraging large lot zoning in [that] area of town." Ibid. Moreover, the court said, "[a] c(2) variance stands if, after adequate proofs are presented, the board without arbitrariness concludes that the harms, if any, are substantially outweighed by the benefits." Id. at 565.

Given our narrow scope of review, we agree with defendants and the trial court that the criteria for the (c)(2) variances were adequately demonstrated in this case. Kaufmann is clear that the grant of approval must "actually benefit the community in that it represents a better zoning alternative for the property." Id. at 563. In this case, based upon the proofs submitted, the Board concluded that the application would foster an already-extant zoning pattern. Given those proofs and the findings of the Board in this case, we find sufficient support in the record that the purposes of the MLUL set out in sub-sections (a), (e), and (g) of N.J.S.A. 40:55D-2 would be advanced by the Trust's subdivision and improvements. Plaintiff's arguments to the contrary are entitled to respectful consideration, but not to conclusive effect.

We note that plaintiff's argument concerning the effect of Loechner v. Campoli, 49 N.J. 504, 512 (1967), and its recent progeny, Jock v. Zoning Bd. of Adj. Of Wall, 184 N.J. 562, 578, 581 (2005), is misplaced. In Loechner and Jock, the by-now unremarkable doctrine of merger was thoroughly analyzed. However, in the instant appeal, there is no dispute as to whether a merger of lots 8 and 9 occurred. That circumstance neither prohibits a subdivision application nor stifles the ability of an applicant to demonstrate an entitlement to (c)(2) variances. Indeed, one of the historical points of Loechner was its recognition that if merger occurred, the subject lots could be re-conveyed separately only if a subdivision application were thereafter approved. The doctrine was never intended to prohibit subdivision applications in the first instance; rather it was intended to encourage such reviews as a necessary predicate to re-conveyances.

Under the doctrine of merger, contiguous, undersized, or substandard lots that come into common legal title theoretically merge and therefore cannot be individually sold or developed without subdivision approval. Jock, supra, 184 N.J. at 578, 581. A (c)(1) variance may be precluded because the individual lot owner cannot demonstrate undue hardship that was not self-created. Ibid. Because the Trust instead was seeking (c)(2) variances, the Board was permitted although not required to grant such relief upon proper proofs.

We also consider plaintiff's multi-faceted arguments concerning the putative usurpation of zoning authority by the Board, allegedly at the expense of the governing body and the public. We can only note that there is nothing inherently evil or misguided about the grant of a variance where it is supported by proper proofs. A variance is a legislatively-mandated safety valve from the strict application of a zoning regulation. A variance must be earned by the presentation of appropriate evidence, and requires the exercise of principled discretion by a land use agency. Indubitably, "variances should be granted sparingly and with great caution, [and] courts must give greater deference to a variance denial than to a grant." New York SMSA, Ltd. P'ship v. Bd. of Adj. of Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). Nevertheless, "[a] (c)(2) variance stands if, after adequate proofs are presented, the board without arbitrariness concludes that the harms, if any, are substantially outweighed by the benefits." Kaufmann, supra, 110 N.J. at 565. As in Kaufmann, "[t]he Planning Board made that finding here, and the record contained expert proof from a planner that no detriment would ensue." Ibid.

In our own review, we apply the same standard as the trial court, Bd. of Educ. of City of Clifton v. Zoning Bd. of Adj., 409 N.J. Super. 389, 433 (2009), and must "determine whether or not the board acted within the statutory guidelines and properly exercised its discretion" and may not substitute our judgment for that of the board. Fallone, supra, 369 N.J. Super. at 561. Our role is not to determine if the Board could have reached a better decision, but rather is to discern whether it "could reasonably have reached its decision." Ibid. (quoting Davis Enters. v. Karpf, 105 N.J. 476, 485 (1987)). We will reverse the Board's determination only if that decision is found to be arbitrary, capricious, and unreasonable. Ocean County Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adj., 352 N.J. Super. 514, 521 (App. Div.), certif. denied, 175 N.J. 75 (2002).

 
We will not depart from the optimistic assumption that the law presumes that local land use agencies will act fairly, with proper motives, and for valid reasons. Kramer, supra, 45 N.J. at 296. Agreeing with Judge Wellerson that the Board fulfilled its discretionary role in the administration of Toms River's zoning regulations, we will not tamper with the sound judgment of the Law Division.

Affirmed.

Section 348-10.13(E)(5) required front yard setbacks on each of the intersecting streets of at least twenty-five feet. The dwelling was located only 7.94 feet from Second Avenue and 24.55 feet from George Road, thereby encroaching in the corner lot's two front yards.

Contrary to plaintiff's assertion, the Trust's application did not involve a nonconforming use, which would have implicated a variance pursuant to N.J.S.A. 40:55D-70(d)(2), solely within the jurisdiction of the Board of Adjustment. See Razberry's, Inc. v. Kingwood Twp. Planning Bd., 250 N.J. Super. 324 (App. Div. 1991).

In an effort to thwart a sale to a third party, plaintiff recorded a Notice of Lis Pendens on August 11, 2008. On October 10, 2008, Judge Frank A. Buczynski, Jr. entered an order discharging the Notice of Lis Pendens.

Plaintiff never filed an amended notice of appeal indicating that she now seeks review of either the October 10, 2008 or the July 2, 2009 orders, both of which relate to the Notice of Lis Pendens. Only those orders or parts thereof that are designated in the notice of appeal are subject to the appeal process and review. See, e.g. Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994); Campagna v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2001).

N.J.S.A. 40:55D-1 to -163.

(continued)

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June 17, 2010