BRIAR ROSE GROUP, INC v. PLANNING BOARD OF THE TOWNSHIP OF DENVILLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3052-10T1

BRIAR ROSE GROUP, INC.,

Plaintiff-Appellant,

v.

PLANNING BOARD OF THE TOWNSHIP

OF DENVILLE,

Defendant-Respondent,

and

ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF DENVILLE,

Defendant.

_____________________________________________________________

November 18, 2011

Argued October 26, 2011 - Decided

Before Judges Graves, Harris and Koblitz.

On appeal from the Superior Court of New Jersey,

Law Division, Morris County, Docket No.

L-2578-09.

Allen Hantman argued the cause for appellant

(Morris & Hantman, attorneys; Mr. Hantman, on

the brief).

Tiena M. Cofoni argued the cause for respondent

(The Buzak Law Group, LLC, attorneys; Ms. Cofoni

and Susan L. Crawford, on the brief).

PER CURIAM

Plaintiff Briar Rose Group, Inc. (Briar Rose) appeals from a January 18, 2011 Law Division order that affirmed a June 24, 2009 resolution of the Denville Township Planning Board (the Board). The resolution denied Briar Rose's application for a minor subdivision with associated variances including hardship variances under N.J.S.A. 40:55D-70(c)(1) from Denville's steep slope ordinance in order to construct two single-family houses on the proposed lots. Briar Rose argues on appeal, as it did in the Law Division, that the Board's decision was arbitrary, capricious, and unreasonable. For the reasons that follow, we affirm the Law Division's order.

Briar Rose's application, initially submitted on March 31, 2006, sought the division of Lot 1700 an approximately 36,000 square-foot parcel located at 109 Highland Trail into proposed Lots 1700.01 and 1700.02. Lot 1700.01 would have had an area of approximately 20,000 square feet, and Lot 1700.02 would have consisted of approximately 16,000 square feet. The property is located in Denville's R-3 residential district, which requires a minimum lot area of 7,500 square feet. The property slopes downward from the roadway creating an approximate fifty-foot drop in elevation from the front of the property to the rear. The proposed houses on Lots 1700.01 and 1700.02 had 2,527 and 2,678 square feet of living area (excluding garages and basements), respectively.

Denville's steep slope ordinance sets forth the maximum permitted disturbance of steeply and excessively sloped areas. According to section 19-5.729(f)(1) of the Revised General Ordinances, ground disturbance on slopes of 20% to 24.9% is limited to 25% of the sloped area; and ground disturbance on slopes of 25% to 29.9% is limited to 10% of the sloped area, with the only permitted development activity being transitional grading. No ground disturbance is permitted on slopes of 30% or more.

Briar Rose requested variances from the steep slope ordinance because its proposed development on Lot 1700.01 would have disturbed 30.8% of the area on a 20% to 24.9% slope (5.8% over the maximum), and 24.3% of the area on a 25% to 29.9% slope (14.3% over the maximum). Also, the proposed development on Lot 1700.01 would have disturbed 46.6% of the area on a 30% slope or greater, and the proposed development on Lot 1700.02 would have disturbed 80.8% of the area on a 30% slope or greater. In addition, Briar Rose's proposal for both lots would have violated section 19-5.729(f)(10) of the ordinance, which prohibits the construction of any structure on a slope exceeding 25%.

Briar Rose's application was considered by the Board at public hearings held on six dates between January 23, 2008 and April 22, 2009. In support of its application, Briar Rose presented testimony from Alfred A. Stewart, Jr., an engineer and surveyor, and Louis Barbieri, an architect and professional planner. Seven homeowners living in the vicinity of the property spoke in opposition to Briar Rose's proposal.

On June 24, 2009, the Board adopted a resolution denying Briar Rose's application. In its resolution, the Board "acknowledged that the proposed lots exceed the minimum required lot size, however a majority of the property is encumbered by steep slopes that [are] prohibited from being disturbed." The Board also "noted that the proposal provides for the disturbance of 17,741.20 square feet of steep and excessive slopes of which 17,027.27 square feet is not permitted under the ordinance." Additionally, the Board found that Briar Rose failed to adequately provide for (1) "excessive erosion or other unstable conditions"; (2) "the proper disposition of surface water runoff, both during and after construction"; (3) "appropriate storm drainage facilities"; and (4) "adequate protective measures . . . for downstream properties." The Board also determined that Briar Rose's application presented "problems associated with soil erosion control, drainage, limited useable outdoor living space, and the creation of impractical and un-maintainable slope areas."

On August 27, 2009, Briar Rose filed a complaint in lieu of prerogative writs alleging the Board's decision was "arbitrary, capricious, and unreasonable" and could not "be sustained by the record created." After hearing oral argument on January 6, 2011, the trial court determined that Briar Rose's application required "significant slope variances" and concluded that the Board's decision was adequately supported by evidence in the record. Citing the deferential standard with which it reviews the decisions of local planning boards, the court affirmed the Board's decision.

"[C]ourts must recognize that local officials[,] 'who are thoroughly familiar with their community's characteristics and interests and are the proper representatives of its people[,] are undoubtedly the best equipped to pass initially on . . . applications for variance.'" Kramer v. Bd. of Adj. of Sea Girt, 45 N.J. 268, 296 (1965) (quoting Ward v. Scott, 16 N.J. 16, 23 (1954)). The law presumes that local planning boards "act fairly and with the proper motives and for valid reasons." Ibid. Thus, 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." Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 560 (App. Div. 2004). Moreover, when we review a trial court's order, we apply the same standard. Id. at 592; accord N.Y. SMSA, L.P. v. Bd. of Adj. of Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004)

"Because variances should be granted sparingly and with great caution, courts must give greater deference to a variance denial than to a grant." N.Y. SMSA, L.P., supra, 370 N.J. Super. at 331 (citing Nynex Mobile Commc'ns Co. v. Hazlet Twp. Zoning Bd. of Adj., 276 N.J. Super. 598, 609 (App. Div. 1994)). If a planning board denies a variance application, "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 Adj. of the City of Summit, 228 N.J. Super. 226, 233 (App. Div. 1988).

The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, grants local planning boards the exclusive authority to exercise power with regard to subdivision control. N.J.S.A. 40:55D-20, -25(a)(2). Planning boards also have ancillary power to grant a hardship variance under N.J.S.A. 40:55D-70(c)(1) when presented in connection with an application for subdivision approval. N.J.S.A. 40:55D-25(a)(6), -60(a). Thus, "[t]he [MLUL] gives jurisdiction to grant a joint subdivision and N.J.S.A. 40:55D-70(c)-type-variance only to the local planning board." Bridge v. Neptune Twp. Zoning Bd. of Adj., 233 N.J. Super. 587, 596 (App. Div. 1989).

The MLUL authorizes the grant of a hardship variance if the applicant meets both the positive and negative criteria. See Lang v. Zoning Bd. of Adj. of the Borough of N. Caldwell, 160 N.J. 41 (1999); Kaufmann v. Planning Bd. for the Twp. of Warren, 110 N.J. 551, 558 (1988). To establish the positive criteria, an applicant may show undue hardship "by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property." Menlo Park Plaza Assocs. v. Planning Bd. of the Twp. of Woodbridge, 316 N.J. Super. 451, 460 (App. Div. 1998) (quoting N.J.S.A. 40:55D-70(c)(1)(b)). To establish the negative criteria, an applicant must show that the requested relief "can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zoning plan and zoning ordinance." Lang, supra, 160 N.J. at 57 (quoting N.J.S.A. 40:55D-70(d)).

In this case, the trial court determined that the Board's decision was neither arbitrary nor unreasonable because Briar Rose failed to sustain its burden of proof before the Board. Based on our independent review of the record, we have reached the same conclusion.

A