CHRISTOPHER WILCOX v. TOWNSHIP OF WALL PLANNING BOARD and THE TOWNSHIP OF WALL -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3711-08T23711-08T2

CHRISTOPHER WILCOX,

Plaintiff-Appellant,

v.

TOWNSHIP OF WALL PLANNING

BOARD and THE TOWNSHIP OF

WALL,

Defendants-Respondents.

______________________________________________________

 

Submitted May 18, 2010 - Decided

Before Judges Wefing, Grall and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-793-08.

Cleary, Alfieri & Jones, attorneys for appellant (Linda Grasso Jones, of counsel and on the brief).

Thomas J. Hirsch, attorney for respondent Township of Wall Planning Board.

Respondent Township of Wall has not filed a brief.

PER CURIAM

Plaintiff Christopher Wilcox appeals from the judgment of the Law Division dismissing his complaint in lieu of prerogative writs, and affirming the denial of his development application by defendant, Township of Wall Planning Board (the Board). Plaintiff is the owner of property located near the intersection of Route 34 and Paynters Road, designated as Block 813 Lots 1 and 2 (the property or the site). The property is located in the OB-20 Zone that permits office buildings. It is triangular in shape, fronting on Route 34, backing on to Paynters Road, and consisting of 47,553.01 square feet. Lot 1 contains "two small one story buildings," described in the record as "dilapidated shacks." Lot 2 is vacant.

Plaintiff filed a development application with the Board seeking the demolition of the existing buildings, merger of both lots, and construction of a single-story, 5300 square foot office building with "appurtenant parking, landscaping, lighting, water and sewage." He requested "C-1" bulk variances, minor subdivision approval, and site plan approval, as well as a tree removal permit. The bulk variances sought were as follows: minimum lot depth in the zone was 150 feet, and the proposed lot depth was 88.2 feet; the ordinance required a 50-foot front yard setback, and the application proposed twenty-foot setbacks from both Route 34 and Paynters Road. Plaintiff proposed a widening of Paynters Road permitting entry into the property from both thoroughfares. The Board's engineer described the vehicular access plan as "right-in/right-out to Route 34 and [a] full movement driveway to Paynters Road."

The Board heard testimony on plaintiff's application over five separate evenings during which plaintiff presented the testimony of his various experts. It is fair to say that the hearings reflected the Board's recognition of the need for variance relief based upon the irregular shape of the property and its narrow depth. However, members of the Board and residents of the bordering Orchard Crest residential development, expressed concerns over the plan for dual vehicular access from Paynters Road, and the proposed clearing of mature trees along that street which, it was claimed, served as a sound and visual buffer from the Route 34 highway. Plaintiff sought to address those issues by recalling its expert engineer who presented a modified landscaping plan.

Regarding the setback variances, the Board members quizzed plaintiff's experts about the possibility of constructing a narrower building, or making it two stories instead of one. Plaintiff's experts conceded that in either case, the building would come closer to conformity, but the need for a variance would not be eliminated. Plaintiff's architect indicated that a one-story building was proposed to "keep it low in stature because of its proximity to" the neighboring Orchard Crest development. The Board asked if "there was any reason" the building could not be narrower. The architect responded that the proposed design was adopted "for marketability purposes." Board members also expressed concerns about the location of the building on the site and suggested that it be moved southward to increase the front yard area along Paynters Road. They also expressed concern about the need for access from both streets. Plaintiff's traffic engineer, however, opined that dual access would "operate safely and efficiently on both . . . Paynters Road and Route 34 . . . ." He further believed that the low volume of traffic using the office would not adversely impact traffic patterns. Despite the low volume of traffic, the engineer nevertheless contended that two access points to the site were preferred. He conceded that the site "would work" with one, "but not as well as . . . currently designed."

The Board unanimously denied plaintiff's application. In its January 7, 2008 memorializing resolution, the Board took note of the testimony of plaintiff's traffic engineer that "there w[ould] be less than 6-8 trips to the site during peak business hours." It rejected the expert's opinion that access from Paynters Road was "necessary," instead noting that vehicles could access the site from Route 34 by driving an additional mile and making a u-turn. The Board found "this inconvenience . . . minor compared with the negative impact to the neighbors . . . as a result of the development and driveway."

The Board also rejected the architect's testimony that the proposed building width of 65 feet was the "best way to deal with the site . . . ." Instead, the Board concluded a narrower building "would lessen the impact of the setback" on both roads and be "more appropriate for this unusual shaped lot."

While "recogniz[ing] its responsibility to work with an applicant on difficult[-]shaped property," the Board could find no reason to justify a 20 foot setback, the "destr[uction] [of] all or most of the existing trees along Paynters Road," or the need for a second access point. The Board concluded that "granting [the] relief requested would have a substantial negative impact on both fronts," and denied the application.

Plaintiff sought review by the Law Division. Citing relevant case law, the judge acknowledged the deference accorded to the Board's denial of a variance application. In his written opinion that accompanied the order under review, the judge concluded that plaintiff had failed to satisfy the "negative" criteria for a (c)(1) or (c)(2) variance.

On appeal before us, plaintiff argues that he "was entitled to approval of the site plan as a matter of law"; that the Board's denial of "variance relief of the front yard setback requirement . . . constituted error as a matter of law"; and that the Board's denial of his development application was "arbitrary, capricious, and unreasonable . . . as [he] was entitled to relief under both N.J.S.A. 40:55D-70 (c)(1) and (2) . . . ." We have considered these arguments in light of the record and applicable legal standards. We affirm.

We apply "[t]he same standard of review to" the Board's decision as does the trial court. N.Y. SMSA, L.P. v. Bd. of Adjustment of Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004); Fallone Props. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). A reviewing court can "set aside" a municipal board's decision "when it is 'arbitrary, capricious or unreasonable.'" Cell S. of N.J., Inc., v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)). We may "not substitute [our] judgment for that of [the] [B]oard even when [we are] doubtful about the wisdom of the action." Cell S. of N.J., supra, 172 N.J. at 81 (quotation omitted). "[B]ecause of [its] 'peculiar knowledge of local conditions,'" the Board's factual findings are entitled to substantial deference and are presumed to be valid. Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990) (quoting Medici, supra, 107 N.J. at 23); see also Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965). The Board's conclusions of law are subject to de novo review. See Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993).

Specifically regarding variance requests, we accord substantial deference to the Board's decision to deny a variance, "since variances tend to impair sound zoning." Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001) (citations omitted). "Where a board . . . has denied a variance, the plaintiff has the heavy burden of proving that the evidence presented to the board was so overwhelmingly in favor of the applicant that the board's action can be said to be arbitrary, capricious or unreasonable." Med. Realty Assocs. v. Bd. of Adjustment of Summit, 228 N.J. Super. 226, 233 (App. Div. 1988) (citation omitted). "That heavier burden requires the proponent of the denied variance to prove that the evidence before the board was overwhelmingly in favor of the applicant." Nextel of N.Y., Inc., v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 38 (App. Div. 2003) (quotation omitted).

Plaintiff first contends that the Board erred as a matter of law in denying site plan approval based upon its concern over "off-site traffic issues," the proposed access driveway on Paynters Road, and the removal of trees along that road to accommodate the driveway and other improvements. While we acknowledge much of the precedent cited by plaintiff, we believe it is irrelevant because in this case, plaintiff sought variances that were inextricably related to the site plan application, never sought bifurcation of the application, and never specifically sought approval of his site plan separately from approval of the variances.

"A planning board's authority in reviewing an application for site plan approval is limited to determining whether the development plan conforms with the zoning ordinance and the applicable provisions of the site plan ordinance." Cox, New Jersey Zoning & Land Use Administration, 15-10(a) at 393 (2010); see also Sartoga v. Borough of W. Paterson, 346 N.J. Super. 569, 581 (App. Div.), certif. denied, 172 N.J. 357 (2002). A denial of an application is considered "'drastic action' when the pertinent ordinance standards are met." Shim v. Wash. Twp. Planning Bd., 298 N.J. Super. 395, 411 (App. Div. 1997).

A "site plan" is defined as "a development plan of one or more lots on which is shown (1) the existing and proposed conditions of the lot . . . , (2) the location of all existing and proposed buildings, drives, parking spaces, walkways, means of ingress and egress . . . , and (3) any other information" required by ordinance. N.J.S.A. 40:55D-7 (emphasis added). N.J.S.A. 40:55D-60 permits a planning board to grant subsection (c) variances, "in lieu of [the] board of adjustment, [w]henever the proposed development requires approval . . . of a . . . site plan . . . ." That statute further provides:

The developer may elect to submit a separate application requesting approval of the variance . . . and a subsequent application for any required approval of a . . . site plan . . . . The separate approval of the variance . . . shall be conditioned upon grant of all required subsequent approvals by the planning board. No such subsequent approval shall be granted unless the approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and zoning ordinance.

[Emphasis added.]

Similarly, bifurcated applications are permitted before the zoning board of adjustment whenever subsection (d) variances are implicated. See N.J.S.A. 40:55D-76(b); Puleio v. N. Brunswick Twp. Bd. of Adjustment, 375 N.J. Super. 613, 622-23 (App. Div.), certif. denied, 184 N.J. 212 (2005).

In this case, plaintiff did not submit a bifurcated application. Indeed, because the variances sought were inextricably related to the "location of all . . . proposed buildings, drives . . . [and] means of ingress and egress," the Board properly considered the approval of the site plan as contingent upon the approval of the variances, and plaintiff never argued otherwise. Moreover, as N.J.S.A. 40:55D-60(c) makes clear, even if variances are granted pursuant to a bifurcated application, the applicant must still demonstrate that the "subsequent approval," i.e., the site plan, "can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and zoning ordinance." We reject, therefore, plaintiff's argument that he was entitled to approval of his site plan as a matter of law simply because it complied with the conditions of the municipality's site plan ordinance.

Plaintiff next contends that he was entitled to a c(1) variance "as a matter of law." As we gather from his brief, plaintiff argues that he "met the 'positive' criteria of N.J.S.A. 40:55D-70(c)(1) having demonstrated a hardship based on the property's shape. The Board, he contends, erred in concluding he failed to meet the "negative criteria" by focusing upon the shape and size of the proposed office building and the access sought from Paynters Road. The size of his proposed structure was in fact significantly less than what was permitted in the zone, and, but for the unusual shape of the property, would not have required any variance relief. As to the access from Paynters Road, plaintiff contends that no variance was required, and that access from both Route 34 and Paynters Road existed for adjacent property owners.

In his final point on appeal, plaintiff contends that even if he was not entitled to relief as a matter of law, the Board's denial was arbitrary, capricious, and unreasonable because the grant of the variances "would not result in a substantial detriment to the public good or the zoning plan . . . ." Plaintiff posits that argument in relation both to a c(1) and a c(2) variance.

An applicant seeking a (c) variance must satisfy the "'positive' and 'negative' criteria . . . ." Cell S. of N.J., supra, 172 N.J. at 82. N.J.S.A. 40:55D-70(c) provides in pertinent part that a variance may be granted,

(1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting 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 . . . ; (2) where in an application . . . 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 . . . .

However, regardless of the reasons for seeking the variance, "[n]o variance . . . may be granted . . . without a showing that such variance . . . can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance[,]" the so-called negative criteria. N.J.S.A. 40:55D-70(d).

Regarding a (c)(1) variance, "the 'positive criteria[]' . . . are predicated on 'exceptional and undue hardship' because of the exceptional shape and size of the lot." Lang v. Zoning Bd. of Adjustment of Borough of N. Caldwell, 160 N.J. 41, 55 (1999) (quoting Bressman v. Gash, 131 N.J. 517, 531 (1993)). "[T]he focus of the board's inquiry should be on whether the unique property condition relied on by the applicant constitutes the primary reason why the proposed structure does not conform to the ordinance." Lang, supra, 160 N.J. at 56.

A board may grant a (c)(2) variance "when the purposes of [the Municipal Land Use Law] would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment . . . ." N.J.S.A. 40:55D-78(c)(2). This subsection addresses "a very narrow band of cases in which the standard would fall somewhere between the traditional standards of 'hardship,' on the one hand, and 'special reasons,' on the other." Kaufmann v. Planning Bd. for Twp. of Warren, 110 N.J. 551, 560 (1988). The grant of the more flexible (c)(2) variance "must be rooted in the purposes of zoning and planning itself and must advance the purposes of the [Municipal Land Use Law,]" id. at 562; therefore, "no (c)(2) variance should be granted when merely the purposes of the owner will be advanced." Id. at 563.

In this case, the Board recognized that plaintiff had demonstrated the need for the variance, i.e., plaintiff proved the positive criteria of subsection (c)(1). The narrowness of the property did not permit conformance with the minimum lot width, and any structure built would result in a footprint that did not comply with the minimum setbacks from Route 34 and Paynters Road.

The question is whether plaintiff proved the negative criteria under the specific facts of this case. In this regard, it has been said that

a board or court does not and cannot determine whether the negative criteria are met without reference to the positive criteria. [Since] . . . every variance constitutes, by definition, a departure from and impairment of the zone plan[,] [t]he negative criteria asks whether such departure is 'substantial.'. . . The greater the . . . hardship . . . the greater the detriments must be to achieve the quality of being substantial. The negative criteria determination always involves a balancing of the benefits and detriments, the positive and negative effects, of a given variance proposal.

[Cox, supra, 8-2.1 at 248.]

The Board has the discretionary authority to impose reasonable conditions upon the grant of a variance and is under no obligation to grant only the variance requested. See Home Builders Ass'n of N. N.J. v. N.J. Borough of Paramus, 7 N.J. 335, 342 (1951) (recognizing the Board's ability to "grant[] a lesser variance" than that requested by the applicant); see also Cox, supra, 6-2.6 at 150 ("The board is not required to either grant or deny the exact variance requested."); Simeone v. Zoning Bd. of Adjustment of Twp. of E. Hanover, 377 N.J. Super. 417, 426-27 (App. Div. 2005) (approving the board's denial of a variance, but recognizing that the negative criteria might be established if a smaller house was proposed).

In this case, the Board recognized that given the narrowness of plaintiff's lot, a variance would be required. However, it also noted that if plaintiff had designed a narrower or two-story building, or if plaintiff had forgone the need to have two access points to the property, he may have reduced the application's relative deviation from the setback requirements of the zone.

Plaintiff's experts did not assert that the proposed design was necessary to reasonably develop the property. Indeed, they acknowledged that a narrower building envelope was rejected because of "marketability" factors. A second driveway was deemed to be a better design, even though the vehicular traffic in the first instance was of very low volume, and the inconvenience caused by having only one driveway on Route 34 was minimal. Based upon this evidence, combined with the Board's findings of specific detriment caused by the proposed development, we cannot conclude that its decision denying the specific variances requested -- but leaving open the possibility of variances that represented a less "substantial" departure from the ordinance -- was arbitrary, capricious or unreasonable.

Specifically considering plaintiff's variance request as one addressed to subsection (c)(2), we agree with the Board that there was essentially no proof adduced below as to what particular zoning purpose, N.J.S.A. 40:55D-2, was served by granting the variances sought. Kaufman, supra, 110 N.J. at 563 (noting that a successful c(2) applicant must demonstrate the variance served one of the statutory purposes). Moreover, as the Kaufman court noted, "The Legislature undoubtedly intended through the (c)(2) variance to vest a larger measure of discretion in local boards in a limited area of cases. Courts are obliged to respect that grant of power." Id. at 566.

In short, we cannot conclude that the Board acted in an arbitrary, capricious, or unreasonable manner in denying plaintiff the specific variance relief he sought in his development application.

 
Affirmed.

The Township of Wall is also a named defendant in the order for judgment. The appellate record does not contain a copy of the complaint, and we cannot discern what plaintiff's claim against the municipality might have been. In any event, plaintiff raises no issue regarding the municipality in this appeal.

Plaintiff's development application indicated that he was seeking only a "c(1)" variance, and, indeed, that was the focus of the testimony before the Board. The Law Division judge addressed both subsections, and, on appeal, the parties have briefed the issue of whether plaintiff qualified for a c(2) variance; we therefore address the question.

At oral argument before the Law Division, plaintiff did not separately seek to reverse the denial of his site plan from the denial of his variance requests. Therefore, we are not certain the issue was ever raised before the trial judge. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("Our Appellate Courts will decline to consider questions or issues not properly presented to the trial court."). The Board has not objected, however, to our consideration of the issue on that ground.

We recognize, but need not consider, the Board's position that plaintiff's application did not comply with the site plan ordinance.

(continued)

(continued)

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A-3711-08T2

July 28, 2010