HOWARD PAYNE v. PLANNING BOARD OF THE TOWNSHIP OF LAKEWOOD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4983-10T3

HOWARD PAYNE and JANET PAYNE,

Plaintiffs-Appellants,

v.

PLANNING BOARD OF THE TOWNSHIP

OF LAKEWOOD and MAJESTIC

CONTRACTING, LLC,

Defendants-Respondents.

______________________________

April 19, 2012

Argued March 27, 2012 - Decided

Before Judges Simonelli and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2920-10.

Cathy S. Gasiorowski argued the cause for appellants (Gasiorowski & Holobinko, attorneys; Ms. Gasiorowski, on the briefs).

John J. Jackson, III, argued the cause for respondent Planning Board of the Township of Lakewood (King, Kitrick & Jackson, LLC, attorneys; Mr. Jackson, on the brief).

Lani M. Lombardi argued the cause for respondent Majestic Contracting, LLC (Cleary Giacobbe Alfieri Jacobs, LLC, attorneys; Ms. Lombardi, on the brief).

PER CURIAM

In this prerogative writs matter, plaintiffs Howard and Janet Payne challenge the decision of defendant Planning Board of the Township of Lakewood (Board) approving the application of defendant Majestic Contracting, LLC (Majestic) for preliminary and final major subdivision and preliminary and final major site plan approvals to construct seventeen townhouse units within three buildings on property adjacent to plaintiffs' property. Plaintiffs primarily contend that the Board erred in granting the application because the landscape buffer area requirements contained in the Township of Lakewood's Unified Development Ordinance (UDO) are zoning requirements, and Majestic's proposed deviations therefrom are subject to variance approval pursuant to N.J.S.A. 40:55D-70c. We disagree, and affirm.

We begin by reviewing the pertinent provisions of the UDO. The UDO's subdivision and site plan ordinances are contained in Articles VI, VII and VIII. Article VI, entitled "Subdivisions and Site Plans," contains rules for the review and approval of major and minor subdivisions and site plans. Section 18-601 permits the Board to grant exemptions and waivers for minor and major subdivision and site plan requirements and standards. Article VII, entitled "Provisions Applicable to Site Plans and Subdivisions," addresses procedural requirements for subdivision and site plan review by the Board.

Article VIII, entitled "Design Standards," contains subdivision and site plan standards. Section 18-803, entitled "Landscaping and Buffers," contains site plan requirements and standards for buffer areas. Section 18-803(A)(1) establishes the design requirements for buffer areas:

Buffer areas shall be developed in an aesthetic manner for the primary purposes of screening views. Buffer widths shall be measured perpendicularly to lot and street lines. No structure, storage of materials or parking of vehicles shall be permitted in a buffer area unless otherwise permitted herein. The standards for the location and design of buffer areas are intended to provide flexibility in order to provide effective buffers. The location and design of buffers shall consider the use of the portion of the property being screened; the distance between the use and the adjoining property line; differences in elevations; the type of buffer such as dense planting, existing woods, a wall or fence; buffer height; buffer width; and other combinations of man-made and natural features.

Section 18-803(B)(1)(c) establishes general standards for buffer areas:

All buffer areas shall consist of either grass or ground cover, together with a screen of live shrubs or scattered planting of live trees, shrubs or other plant material meeting the following requirements:

. . . .

Trees shall be at least six (6) to eight (8) feet in height and two (2) inches in caliper when planted and be of a species common to the area, and listed on the approved plant species list incorporated herein, and be of balled and burlapped nursery stock and be free of insect and disease.

The section at issue here, Section 18-803(E)(2)(b), establishes the footage requirements for buffer areas:

Multi-family or townhouse adjacent to an existing single-family residential development or an area zoned for single-family residential land uses shall provide a buffer area of at least thirty (30) feet in width, as measured from the property line toward the proposed use. The Board may reduce the required buffer to fifteen (15) feet in width if the developer provides a dense landscaping screen. (Emphasis added.)

Article II defines a "buffer" as "[a]n area within a property or site, generally adjacent to and parallel with the property line, either consisting of trees, shrubs or other landscaping and/or berms, designed to continuously limit the view or control other impacts of the site from adjacent site, properties or roadways."

In contrast, the zoning ordinance is contained in Article IX, entitled "Zoning Districts and Regulations." Article IX establishes zoning districts in the Township and lists each zone's permitted, conditional and accessory uses and design regulations, such as lot area, lot width, building setbacks, building coverage and building height. Article III, Section 18-304(G)(1) permits the Board to grant variances from lot area, lot dimension, setback and yard requirements. Unlike Article VIII, Article IX does not contain buffer requirements or standards or a waiver provision for them.

Majestic's property consists of over two acres of primarily vacant, wooded land adjoined by plaintiffs' property and a property used for commercial purposes. Plaintiffs' property consists of five acres, with their home located approximately two hundred and forty feet from Majestic's property line. Both properties are located in the residential multi-family (RM) zone.

Townhouses are a permitted conditional use in the RM zone under Article IX, Section 18-902(G)(1)(d). Article X, entitled "Conditional Use Requirements," contains the specific zoning standards for the permitted conditional uses. Section 18-1010 establishes the zoning conditions for townhouse development. Section 18-1010(A) sets the minimum tract size, tract boundaries, maximum density, minimum tract width and depth, and maximum building coverage for the entire tract. Section 18-1010(B)(7) requires that "[a]ll residential development shall provide a useable rear yard depth of at least twenty (20) feet, including the rear yard setback. Decks shall be permitted within the useable yard area, but detention/retention facilities, drainage swales, or any easements which would inhibit the use of the rear yard are prohibited." The UDO does not define "useable rear yard."

According to Majestic's original application, submitted in February 2006, the proposed townhouses will be located thirty feet from the property line dividing Majestic's property from plaintiffs' property. The application proposed a retaining wall but no landscape buffer between the properties. Plaintiffs opposed the application. In a resolution dated December 19, 2006, the Board denied the application based on concerns about the lack of an adequate landscape buffer, among other things.

Majestic filed a complaint in lieu of prerogative writs challenging the Board's decision. Judge Grasso remanded the matter to permit Majestic to amend its application to address the Board's concerns. Following Majestic's submission of an amended application, the Board held additional hearings. Plaintiffs continued to object, primarily as to the revised proposed buffer area.

Majestic's amended application proposed a ten-foot wide landscape buffer with a shallow retaining wall along the northerly edge of the buffer. As such, it requested a design waiver from the footage requirement in Section 18-803(E)(2)(b). The Board's expert engineer, Terence Vogt (Vogt), and the Board's attorney determined that because the buffer requirement is contained in the design standards of Article VIII, "relief from [the footage] requirement, if necessary, should be treated as a design waiver, and not a bulk variance."

Majestic subsequently proposed a fifteen-foot wide landscape buffer. Based on this revision, Vogt recommended, in part, that

[i]f the Board is satisfied that the proposed landscape buffer design is adequate and meets the definition of a "dense landscape screen" as referenced in Section 18-803(E)(2)(b) of the UDO, the application could be considered without the need for a design waiver for full compliance with the landscape buffer standard.

Majestic proposed to plant a total of one hundred and sixty-five trees in the landscape buffer area, with evergreen trees planted in two rows seven feet on center in the ten-foot area closest to the property line. Deciduous trees would be planted in a third row fifteen feet on center in the remaining five-foot area, which overlapped with the twenty-foot-wide useable rear yard area required by Section 18-1010(B)(7). Majestic also proposed to re-grade the rear yard area to bring it level with other properties in the rear of the townhouses, and install vinyl fencing along the property line.1 Vogt testified that the revised proposed landscape buffer was an "aggressive landscaping concept," which complied with the UDO and was within the Board's discretion to approve or disapprove.

On April 27, 2010, the Board issued a resolution granting the application with a waiver for the landscape buffer area. The Board found that the site was fully conforming with regard to the bulk requirements of the RM zone, and was of sufficient size to support the proposed use. With respect to the proposed landscape buffer area, the Board found as follows:

[Majestic's] original design provided for a retaining wall with no buffer which the [B]oard found was not sufficient buffering to the adjoining property owner and the construction of the retaining wall may cause damage to existing historic trees on the adjoining property. After many plan revisions, [Majestic] now provides for a design that will regrade the rear to bring it level with other properties into the back of the [town]houses. The masonry on the proposed buildings would be used to an extent as a retaining wall and eliminate the need for construction of the retaining wall ten feet off the property line. [Majestic] proposes the provision of 165 trees in the rear 15 feet. First row and second row of plantings would consist of mostly evergreens planted seven feet on center. A third row of plantings would consist of deciduous trees and would be planted fifteen feet on center. In addition, there will be vinyl fencing along the property line.

. . . .

[Majestic's] request for preliminary and final major subdivision and preliminary and final major site plan approval is in general conformance with the requirements of the Lakewood Township Zoning Ordinance. Further, [Majestic] has sufficiently addressed all issues that concerned the [B]oard in the prior application. The parking is adequate to accommodate [Majestic's] proposed use, and the proposed cul-de-sac fully complies with residential site improvement standards. With regard to the waiver for the proposed residential buffer of 15 feet, the [B]oard finds that the ordinance requires 30 feet which can be reduced at the Board's discretion to fifteen feet if it is a heavily landscaped buffer. The [B]oard finds that the proposed buffer is sufficiently dense in plantings and adequate to shield the adjoining properties from any noise, glaring lights and/or any other deleterious condition and, accordingly grants that waiver.

. . . .

[Majestic] has provided a buffer area of reasonable width and sufficient landscape density to shield adjoining properties from any noise, glare or light caused by the townhouse development. Further, the applicant's design provides for an appropriate transition between the applicant's proposed townhouse use and the adjoining residential uses with little or no disturbance to existing trees and plantings on adjoining properties thereby furthering N.J.S.A. 40:55D-2(g)[.]

Plaintiffs filed a complaint in lieu of prerogative writs challenging the Board's decision. Judge Grasso dismissed the complaint with prejudice, finding that the Board reasonably interpreted the UDO to grant waiver relief from the landscape buffer requirements rather than requiring a variance because the landscape buffer requirement is a design standard contained in Article VIII of the subdivision and site plan ordinances. The judge also found that the record supported the Board's finding that the proposed landscaping will provide a "dense landscaping screen" that satisfies the landscape buffer design standard.

Judge Grasso found that the UDO does not define "useable rear yard," and the five-foot overlap of the landscape buffer and useable rear yard areas provided no basis to reverse the Board's decision. The judge noted the Board had reached its decision over several hearings, and carefully evaluated the design of the proposed development in the context of applicable dimensional requirements. He concluded that the Board's findings were supported by credible and competent evidence in the record, and the Board did not act arbitrarily, capriciously, or unreasonably. This appeal followed.

I.

Plaintiffs contend that notwithstanding its appearance in the UDO's Article VIII "Design Standards," the landscape buffer requirements are zoning requirements. Thus, because five feet of the proposed buffer area will overlap with the useable rear yard area, the proposed buffer area is only ten feet wide and a bulk variance pursuant to N.J.S.A. 40:55D-70c is required. We disagree.

We use the same standard as the trial court in reviewing a planning board's decision. 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 Adjustment, Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004)). 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. 309, 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 Adjustment 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. However, where the issue on appeal involves a purely legal question, we owe no special deference to the trial court's or the planning board's decisions, and must determine if they understood and applied the law correctly. D. Lobi Enters., Inc. v. Planning/Zoning Bd. of the Borough of Sea Bright, 408 N.J. Super. 345, 351-52 (App. Div. 2009). Applying these standards, we discern no reason to disturb Judge Grasso's or the Board's decisions.

A municipal governing body has the exclusive power to adopt a land use ordinance "subject to the strictures imposed by enabling legislation." Wawa Food Mkt. v. Planning Bd. of the Borough of Ship Bottom, 227 N.J. Super. 29, 34 (App. Div.), certif. denied, 114 N.J. 299 (1988); see also N.J.S.A. 40:55D-62. "Once the governing body exercises its zoning power and places standards in its zoning ordinance, its action enjoys a 'strong presumption in favor of validity which continues unless overcome by clear showing that it is arbitrary and unreasonable.'" Wawa, supra, 227 N.J. Super. at 34-35 (quoting Zilinsky, supra, 105 N.J. at 368). Where the governing body places a standard within its land use ordinance will generally determine whether it considers the standard a zoning requirement or a subdivision and site plan requirement. See id. at 35-36.

Under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, subdivision and/or site plan ordinances must include standards for preliminary and final approval, including "the standards for grading, improvement and construction of streets or drives and for any required walkways, curbs, gutters, streetlights, shade trees, fire hydrants and water, and drainage and sewerage facilities and other improvements as shall be found necessary." N.J.S.A. 40:55D-38a and c. A site plan ordinance must include standards and requirements for "screening, landscaping and location of structures[.]" N.J.S.A. 40:55D-41c. A planning board has the authority to grant exceptions from the requirements and standards of subdivision and site plan ordinances "as may be reasonable and within the general purpose and intent" of the provisions for subdivision and site plan review and approval. N.J.S.A. 40:55D-51a and b. A planning board has no such authority with respect to the requirements and standards of a zoning ordinance. Wawa, supra, 227 N.J. Super. at 34.

The question in this case is whether the landscape buffer requirements are zoning requirements or subdivision and site plan requirements. Plaintiffs mischaracterize Morris County Fair Housing Council v. Boonton Twp., 230 N.J. Super. 345 (App. Div. 1989), in arguing that they are zoning requirements. In Morris County, the Township had adopted a separate and distinct zoning ordinance related solely to the development of Mt. Laurel housing. Id. at 349. Section 95-79 contained engineering and construction zoning requirements, including standards for drainage, lighting, sewers, streets and water supply. Id. at 353. Section 95-80A contained a specific waiver provision limited to the engineering and construction design zoning requirements contained in Section 95-79. Ibid. Buffer requirements were contained separately in the zoning ordinance, Section 95-72, and were excluded from the Section 95-80A waiver provision. Thus, we concluded that the buffer requirement was a zoning standard governed by N.J.S.A. 40:55D-70. Id. at 354.

Here, the Township adopted a land use ordinance that contains separate zoning, and subdivision and site plan ordinances. Unlike in Morris County, the zoning ordinance here does not contain landscape buffer requirements or standards, and landscape buffer requirements are not on the list of zoning requirements and standards from which the Board may grant variance relief. Rather, the landscape buffer requirements, and the Board's authority to grant waivers therefrom, are contained in the subdivision and site plan ordinances.

In addition, a buffer is not a setback. As defined by the UDO, a buffer is a screening "consisting of trees, shrubs or other landscaping and/or berms, designed to continuously limit the view or control other impacts of the site from adjacent site, properties or roadways." As such, the Township properly placed the landscape buffer requirements in the subdivision and site plan ordinances, where they belong as per N.J.S.A. 40:55D-41c. Accordingly, the Board properly interpreted the UDO to conclude that the buffer requirements were subdivision and site plan requirements subject to waiver relief. The Board's interpretation of the UDO is entitled to our deference. Fallone Props. LLC v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004).

The UDO granted the Board the authority to grant a waiver from the ten-foot-wide buffer area Majestic had originally proposed. Thus, the Board did not act arbitrarily, capriciously or unreasonably in considering a waiver for the initially proposed ten-foot area. However, the waiver became unnecessary when Majestic revised the proposed buffer area to fifteen feet wide. The UDO permits a fifteen-foot buffer area without a waiver as long as the Board determines that the developer will provide a dense landscaping screen. The Board determined, based on competent, credible evidence presented at the hearings, that Majestic will provide a sufficient dense landscaping screen. Accordingly, we are satisfied that the Board acted properly with respect to the buffer requirement.

II.

Plaintiffs contend, alternatively, that the proposed buffer and useable rear yard areas cannot overlap. Thus, if the proposed buffer area is fifteen feet wide, then a variance is required for the proposed useable rear yard because it will only be fifteen feet wide, not twenty feet as required by Section 18-1010(B)(7). We reject this contention.

Plaintiffs cite no authority, nor is there any UDO provision, that prohibits or restricts an overlap of buffer and useable rear yard areas. To the contrary, the UDO's definition of "buffer" suggests that an overlap is permitted: a "buffer" is as "[a]n area within a property or site, generally adjacent to and parallel with the property line, either consisting of trees, shrubs or other landscaping and/or berms, designed to continuously limit the view or control other impacts of the site from adjacent site, properties or roadways." There is nothing in this definition that requires a buffer to be beyond a useable rear yard area, or prohibits a buffer area from simultaneously serving as a rear yard area. The only limitations are that buffer width shall be measured perpendicularly to lot and street lines and that no structures, storage of materials or parking of vehicles shall be permitted in the buffer area. In addition, there is no evidence that the trees in five-foot overlap will render the rear yard unusable. Accordingly, there was no need for a variance for the proposed rear yard area.

1 In order to further minimize any adverse effect on neighboring property, Majestic decreased the height of the proposed buildings by lowering the height of the attic ceiling, and revised the proposed attic so that it could not be used as living quarters.