TEN STARY DOM PARTNERSHIP v. T. BRENT MAURO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1083-10T2

TEN STARY DOM PARTNERSHIP,

Plaintiff-Appellant/

Cross-Respondent,

v.

T. BRENT MAURO,

Defendant-Respondent/

Cross-Appellant,

and

THE BOROUGH OF BAY HEAD

PLANNING BOARD,

Defendant-Respondent.

________________________________________________________________

Argued June 1, 2011 Decided August 5, 2011

 

Before Judges Wefing, Baxter and Koblitz.

 

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-451-08-PW.

 

Joseph Michelini argued the cause for appellant/cross-respondent (O'Malley, Surman & Michelini, attorneys; Mr. Michelini, on the briefs).

 

Richard H. Woods argued the cause for respondent/cross-appellant T. Brent Mauro.

 

Christian E. Schlegel argued the cause for respondent The Borough of Bay Head Planning Board (Citta, Holzapfel & Zabarsky, attorneys; Mr. Schlegel and Steven A. Zabarsky, on the brief).

PER CURIAM

Plaintiff Ten Stary Dom Partnership (Dom), seeking finality, appeals the "without prejudice" portion of the trial court's July 13, 2010 order affirming the Borough of Bay Head Planning Board's (Board) denial of a bulk variance to defendant T. Brent Mauro. Dom also appeals the September 15, 2010 order denying reconsideration. Mauro cross-appeals from the court's entire decision. The Board maintains that the trial court orders should be affirmed in all respects, including the "without prejudice" provision. We reverse the trial court's determination and remand for the grant of the bulk variance, concluding that the Board's reasons for denial were insufficient.

This matter involves defendant Mauro's extended efforts to build a home on a rectangular 5019 square foot inherited property, Block 12, Lot 46 (Property), situated with only slightly more than a 10-foot frontage on Willow Drive, a 500-foot-long alley. The Property, located in an R-50 (single-family residential) zone, originally consisted of two lots, which defendant combined into one. Six houses surround the Property, which is designated as wetlands. It is located at the bottom of a slope where runoff water from Willow Drive and adjoining properties accumulates.1 The Property has three easements, which run over the adjoining properties behind it; one for emergency access and two for utilities.

In September 2002, after receiving "an interpretation from the Borough Attorney that Willow Drive is an alley and not an approved or dedicated street," Mauro submitted an unsuccessful application to the Board to build on the Property. Mauro appealed the denial of this application, and on January 3, 2006, a Law Division "order adjourning trial"2 allowed the governing body to consider "certifying Willow Drive as a municipal street," after improvements were made to the alley at Mauro's "sole cost and expense," so that Mauro could obtain a building permit after obtaining a "frontage variance [from fifty to ten feet] and any other variance, if required by the Planning Board." On January 17, 2006, the Borough Council of Bay Head passed a resolution certifying Willow Drive as a public street, pursuant to N.J.S.A. 40:55D-35, subject to Mauro widening Willow Drive to a width of twenty feet at his sole expense.

On August 29, 2006, Mauro filed an application to construct a single-family residence on the Property, requesting a bulk variance, pursuant to N.J.S.A. 40:55D-70c, due to the insufficient street frontage of slightly more than ten feet rather than the required fifty feet. The Board conducted a hearing on August 15, September 19, and November 28, 2007. Mauro testified and presented testimony from an engineering expert regarding drainage, fire safety and the positive and negative effects of use of the Property.

The Board asked two representatives from the Bay Head Fire Department to testify regarding fire safety as well. The overarching concerns of the Board were the drainage problems, the limited access for emergency personnel, and its view that the design of the proposed structure would not fit into the aesthetics of the surrounding homes. During the approval process, Mauro adjusted his plans at the suggestion of the Board members to reduce the size of the proposed structure from two and one-half stories to two stories, a vertical reduction of two and one-half feet, and a lot coverage reduction of three hundred twenty square feet. The Board members had sought a greater size reduction. According to the testimony of neighbors, the house would still be larger than the neighboring homes.

Mauro's expert, engineer Robert Burdick, testified that the two access areas provided by the easements, coupled with the 10-foot street frontage, "should mitigate the impact of the lack of 50 foot frontage" and provide sufficient ingress and egress. Burdick had not yet designed the drainage system. He acknowledged that pipes would need to be put into the street and storm drains installed. The problem of water running off onto neighboring properties would also need to be addressed. He indicated that the wetlands area would need to be filled to prevent a water runoff onto neighboring properties, and he suggested putting "walls in behind off of the properties such that the adjacent properties water goes to [the] site." Burdick admitted that he did not have specific data regarding the construction of a drainage system, but said that "[b]ased on 25 years of engineering experience I believe I can design something that will work on this site."

As to fire safety, Chief Vander Noot of the Bay Head Fire Department emphasized that fighting a fire on the Property was possible but difficult, although he did not believe the location was any more dangerous than some other places in Bay Head. He believed that the only significant limitation would be that only one fire truck could get down Willow Drive. He also noted that when a car is parked in the street, the truck is unable to go all the way down the street to the base of the Property. In the event of a fire, however, mutual aid companies would come in and station trucks on other streets, increasing the number of trucks available to fight the fire.

Assistant Chief William Boyle concurred with Vander Noot and noted that if Willow Drive is improved, the fire department could probably maneuver more than one fire engine on the road. He pointed out that the easement over the adjoining lots allows emergency personnel to cross the lots to access a fire hydrant that is approximately fifty feet away, as well as a second hydrant directly across the street from the easement. He said, however, that the "house behind another house" construction would present particular difficulties for fire-fighting. The limited frontage would somewhat impede their ability to fight a fire. Burdick admitted that if a fire truck were called to the Property, it would not be able to turn around to exit, but would instead have to back out of Willow Drive.

Speaking to the positive and negative effects of the land use, Burdick asserted that the impact from traffic, noise, lighting and odors would be minimal and that two goals of municipal land use law would be advanced: (1) promoting the establishment of appropriate population densities; and (2) promoting a desirable visual environment. An additional "major advantage" of the project, according to Burdick, would be the improvement to Willow Drive, which Mauro testified he was willing to accomplish by paving the street and adding curbs, as well as broadening the street.3

After the town engineer recommended that the "Resolution of Approval" require Mauro to ensure an adequate drainage plan, the Board approved the bulk variance by a five-to-four vote and passed a memorializing resolution incorporating the engineer's recommendations on December 19, 2007. The resolution contained the following language: "The Applicant shall be obligated to provide specifications for a storm water management plan to be approved by the Board Engineer which will provide that there shall be no storm water runoff from the subject property onto adjacent properties."

The Board also noted in its resolution that the building conformed to all other requirements, stating:

2. The application for development does not block the light, air or space of any adjacent property owners based upon the dimensions of the house as provided for in the elevation and architectural plans as well as the placement of the house, and, therefore, providing for the setbacks as established during testimony.

3. The property in question has an exceptional and unique configuration in that it only has 10 feet of frontage on Willow Drive which is a preexisting, non-conforming condition and also constitutes an extraordinary and exceptional situation uniquely affecting the specific piece of property which results in peculiar and exceptional practical difficulties and undue hardship to the Applicant.

4. The Applicant has tried to sell the property to adjacent property owners which was unsuccessful.

5. The application for development and the lot itself completely conforms to all the zoning requirements of the Borough of Bay Head except for lot frontage.

6. There is testimony that there are adequate provisions for emergency services to be provided to the subject property based on the improvement to be performed on Willow Drive pursuant to the Borough of Bay Head Resolution No. 2006-21, the recorded easement, and the testimony of the Chief and Deputy Chief of the Bay Head Fire Company.

7. The proposed application for development will contribute to the desirable visual environment of the neighborhood as the aesthetics of the house proposed are consistent with those houses in the Borough of Bay Head and the surrounding neighborhood.

 

Dom, owner of real property adjacent to the Property, filed a complaint in lieu of prerogative writs. At a pre-trial conference, the parties determined that one of the Board members had not attended one of the three hearing dates nor read the transcript of that hearing. The parties consented to a remand to the Board, for deliberation and a re-vote, with all of the present members certifying that they had either attended in person, read the transcripts of or listened to the tapes of all three hearing dates. No additional testimony, public comment or argument of counsel was permitted. The trial court retained jurisdiction.

The second Board vote was held two years later, on December 16, 2009, and this time the Board voted five-to-four to deny Mauro's bulk variance application.4 The Board passed a resolution denying the variance because of concerns with the difficulty in fighting a fire on the Property, "providing sufficient space for a residential use," "[p]romot[ing] a desirable visual environment" and "[p]rovid[ing] adequate light, air and space." The resolution also discussed in detail the drainage issue, stating in part,

[t]here have been no calculations provided to the Board as to how a recharge system would actually be designed and/or work successfully with regard to the subject property. There having been no calculations provided to the Planning Board with regard to the amount of fill which will be necessary, nor topographic surveys or soil investigations performed to determine the exact elevation which will result from the filling of the wetland on the property, as well as the design of a recharge system so that all storm water which runs onto the property or is on the property shall be recharged into the ground and not further run off to any adjacent property owners or onto Willow Drive.

 

The trial court affirmed the Board's decision to deny the variance finding that although Mauro's "purported single-family dwelling met the requirements of the R-50 Zone [and] Chief Vander [N]oot and Assistant Chief Boyle both testified that Willow Drive could support a fire truck and that the proposed variance would not endanger the public safety in terms of fire access[,] . . . no such affirmative testimony was forthcoming by any competent expert . . . on how the applicant would address the well known drainage issues which plagued the proposed lot and more assuredly concerned the adjoining property owners." The court concluded that one of the substantial reasons for the denial was properly based upon the failure to offer competent testimony demonstrating defendant s ability to eliminate the extremely poor drainage. The court further held that the Board s denial was without prejudice, entitling Mauro to file another similar application with the Board in the future.

Dom raises the following issue on appeal:

 

THE LAW DIVISION ERRED BY AMENDING THE BOARD'S DENIAL OF THE APPLICATION TO BE WITHOUT PREJUDICE, EFFECTIVELY REMANDING THE APPLICATION AND PROVIDING APPLICANT WITH A SECOND OPPORTUNITY TO PRESENT EVIDENCE HE PREVIOUSLY CHOSE TO OMIT.

 

Defendant Mauro raises the following issues on cross-appeal:

I. DEFENDANT MAURO MET ALL OF THE CRITERIA FOR THE GRANT OF A VARIANCE FOR FRONTAGE ON AN ISOLATED LOT PURSUANT TO N.J.S.A. 40:55D-70(c)(1) AND (2).

 

II. THE DEFENDANT BOARD FAILED TO MEET ITS OBLIGATIONS IN REVIEWING AN APPLICATION FOR A FRONTAGE VARIANCE ON AN ISOLATED LOT.

 

III. THE COURT'S RULING WITH REGARD TO DEFENDANT'S FAILURE TO SATISFY THE NEGATIVE CRITERIA WITH REGARD TO DRAINAGE ISSUES WAS BASED ON CASES NOT APPLICABLE TO A VARIANCE PURSUANT TO N.J.S.A. 40:33D-70(c).

 

IV. THE DEFENDANT'S AGREEMENT TO MEET THE CONDITIONS WITH REGARD TO DRAINAGE RECOMMENDED BY THE BOARD ENGINEER IS SUFFICIENT TO MEET THE REQUIREMENT OF THE NEGATIVE CRITERIA IN AN APPLICATION PURSUANT TO N.J.S.A. 40:55D-70(c). i

 

V. THE ULTIMATE RELIEF DIRECTED BY THE COURT GOES BEYOND THE COURT'S STATUTORY JURISDICTION AND SHOULD BE RECONSIDERED AND MODIFIED BY THIS COURT.

 

VI. IF THE COURT SHOULD UPHOLD THE DENIAL OF THE APPLICATION BY THE DEFENDANT BOARD, AND THE AFFIRMANCE OF THAT DENIAL BY THE TRIAL COURT, A TAKING OF THE APPLICANT'S PROPERTY HAS OCCURRED AND THIS COURT SHOULD ORDER THAT THE BOROUGH OF BAY HEAD IMMEDIATELY COMMENCE CONDEMNATION PROCEEDINGS PURSUANT TO THE EMINENT DOMAIN ACT.

 

VII. THE PLANNING BOARD RESOLUTION OF JANUARY 20, 2010 IS ARBITRARY, CAPRICIOUS AND UNREASONABLE AND IS NOT SUPPORTED BY THE RECORD.

 

I

 

Mauro argues that the Board's denial of the variance was arbitrary, capricious and unreasonable. The findings adopted in the initial resolution, albeit by a deficiently constituted Board, support Mauro's contention. We agree with Mauro that the Board's subsequent denial of his bulk variance application was arbitrary and unreasonable in light of the Board's emphasis on deficiencies in Mauro's drainage plan.

We begin by recognizing that "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 Adjustment, 184 N.J. 562, 597 (2005) (citing Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965), and upholding the grant of a hardship variance). "Even if we have some doubt about the wisdom of a board's action or some part of it, we may not overturn its decision absent an abuse of discretion." D. Lobi Enters., Inc. v. Planning/Zoning Bd. of Borough of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009).

New Jersey Municipal Land Use Law (MLUL) sets out both positive and negative criteria, which the applicant seeking a variance has the burden of proving. N.J.S.A. 40:55D-70c and d. 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, 160 N.J. 41, 55 (1999). Generally, an applicant alleging "undue hardship" is claiming that "the strict enforcement of the zoning ordinance, in view of that property's unique characteristics, imposes a hardship that may inhibit the extent to which the property can be used." Ibid. (emphasis omitted) (quoting Kaufmann v. Planning Bd. of Warren, 110 N.J. 551, 562 (1988)). N.J.S.A. 40:55D-70c provides, in relevant part:

(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 . . . 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 . . . exceptional and undue hardship upon[] the developer of such property, [the board of adjustment shall have the power to grant] . . . a variance from such strict application of such regulation so as to relieve such . . . hardship.

 

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

 

The applicant has the burden of showing "positive criteria," that he would suffer an "exceptional and undue hardship" if the variance is denied and "negative criteria," that if granted, the variance would not result in "substantial detriment" to the public good. See N.J.S.A. 40:55D-70c and d. In determining whether hardship exists, a board should consider: (1) whether the hardship was self-created; (2) whether the property owner bought his land knowing either in fact or constructively, of the disablement; and (3) the salability of the land. See Chirichello v. Zoning Bd. of Adjustment of Borough of Monmouth Beach, 78 N.J. 544, 553-55 (1979). "The efforts the property owner has made to bring the property into compliance with the zoning ordinance either by sale of the property to an adjacent owner or by acquisition of property from an adjacent owner should be considered when evaluating undue hardship." Dallmeyer v. Lacey Twp. Bd. of Adjustment, 219 N.J. Super. 134, 146 (Law Div. 1987).

The Board "determined that failure to grant the relief requested will not result in undue hardship on the applicant." The trial court, however, found that "[t]estimony before the Board demonstrated that the property had an exceptional and unique configuration presenting a peculiar and undue hardship to the applicant. The applicant before the Board testified that absent approval of the application the property would be rendered useless." The trial court noted that Mauro "substantially met" his obligation to "demonstrate that the efforts were made to bring the property into conformance with the Zoning Ordinance by attempting to acquire adjacent property or by offering to sell the nonconforming property to adjacent owners." The Board did not explain in its second resolution, nor on appeal, why it found that Mauro failed to demonstrate the positive criteria. If Mauro is unable to build on the Property, it will remain a vacant wetland situated on an alley serving as a drainage area for the surrounding houses. The Board's view that "failure to grant the relief requested will not result in undue hardship on the Applicant" is unreasonable and not supported by the record.

Before obtaining a variance under N.J.S.A. 40:55D-70c(1), the applicant must satisfy the negative criteria set forth in N.J.S.A. 40:55D-70d, which provides that "[n]o variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief 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." In evaluating the negative criteria, a board is to perform a balancing test, weighing the function of the zoning benefits of the variance against the harms. See Medici v. BPR Co., 107 N.J. 1, 22 (1987). "Review of the decision of a board of adjustment denying . . . a variance because of the failure to satisfy the negative criteria, like the review of decisions of local land use agencies generally, begins with the recognition that the board's decision is presumptively valid, and is reversible only if arbitrary, capricious and unreasonable." Sica v. Bd. of Adjustment, Sea Girt, 127 N.J. 152, 166-67 (1992); Burbidge v. The Governing Body of the Twp. of Mine Hill, 117 N.J. 376, 385 (1990).

The Board concluded that Mauro did not satisfy the negative criteria. We disagree. Drainage is generally an issue relevant to obtaining site plan approval rather than a zoning variance, N.J.S.A. 40:55D-38b(3). Mauro's expert testified that "he will make something work" and that he believed he "can design something that will work" to solve the drainage problem. The town engineer recommended granting the bulk variance conditioned on Mauro obtaining approval for a proper drainage plan. Mauro had no obligation to convince the Board that such a plan existed at the time of the bulk variance approval. While N.J.S.A. 40:55D-38b(3), governing site plan or subdivision approvals, requires that the applicant provide adequate drainage supply systems, N.J.S.A. 40:55D-70, governing bulk variances, does not contain such a provision.

Mauro might be unable to devise an appropriate drainage plan. If so, he will not obtain site plan approval to build on the Property.

Although basing its decision to uphold the denial of the variance on Mauro's lack of drainage plan, the court acknowledged that "[t]he Board expressed concerns about the aesthetics of the proposed structure[,]" including "the fact that the orientation of the house was a little bit different from the typical house because it would be facing the side yard of a neighboring home." See Dallmeyer, supra, 219 N.J. Super. at 145 ("If the size and layout of the house would adversely affect the character of the neighborhood, both with respect to a 'desirable visual environment,' N.J.S.A. 40:55D-2(i), and the value of the neighborhood properties, a board may justly conclude that a variance should not be granted for the structure as proposed.").

In Dallmeyer, supra, Judge Serpentelli specified a planning board's obligations in reviewing an application for a frontage variance on an isolated lot. Judge Serpentelli noted that "[i]t must be recognized that the appearance of a house and its relationship to the neighborhood from an aesthetic and economic viewpoint are proper zoning purposes, since the appearance of a house may be related to the character of the district." Id. at 145. In its original resolution, the Board specifically found the aesthetics of the home consistent with Bay Head and the neighborhood. Here, the Board expressed concerns about the negative effect on the visual environment the proposed structure would have, including the size, configuration and sideways placement of the house on the lot, as well as the likely need to construct walls around portions of the Property to prevent water run-off onto adjacent properties.

The proposed home, however, complies with all zoning regulations as was determined in the earlier resolution approving the bulk variance. If walls need to be constructed to accomplish proper drainage and those walls do not fit within the appropriate aesthetic standards of the community, the Board may choose to deny the building permit. It is unreasonably speculative to consider a possible component of Mauro's future drainage plan when denying his requested variance.

II

Both Dom and Mauro agree that the court erred in designating its decision as "without prejudice." As Mauro himself argues, he had sufficient opportunity to address the concerns of the Board. Because we conclude that the variance should be approved, we need not decide the propriety of the trial court entering its decision "without prejudice."

Here, Mauro presented sufficient evidence to support a variance, and the Board's denial of his application was unreasonable.

Reversed and remanded.

1 On April 24, 2007, the New Jersey Department of Environmental Protection granted Mauro a Freshwater Wetlands Statewide General Permit, pursuant to N.J.A.C. 7:7A for the Property. The "permit allows for the filling of 0.115 acres (5,019 SF) of freshwater wetlands for the proposed single family home and associated structures, pursuant to the standards at N.J.A.C. 7:7A-5.6 of the Freshwater Wetlands Protection Act."

2 Estate of Darolene Mauro, by and through T. Brent Mauro, Executor, and T. Brent Mauro, individually v. Planning Board of the Borough of Bay Head and the Borough of Bay Head, Docket No. OCN-L-575-03.

3 Mauro testified that he "wouldn't want to finish the road until [his] house is done, but certainly [he] would cut, make the rough cut simultaneously with getting [his] building permit."

4 Two of the members who had previously voted for approval of the variance changed their vote. One member, who became an alternate without voting privileges, had voted against the variance. Another member, who was no longer on the Board, had voted in favor of the variance. The two new members voted in favor of the variance. The net result was that the variance was denied by one vote.