PAUL MANTON et al. v. BOROUGH OF ATLANTIC HIGHLANDS UNIFIED PLANNING BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6699-04T26699-04T2

PAUL MANTON and LEE MANTON,

Husband/Wife,

Plaintiffs-Appellants,

v.

BOROUGH OF ATLANTIC HIGHLANDS

UNIFIED PLANNING BOARD,

Defendant-Respondent.

__________________________________

 

Argued November 6, 2006 - Decided December 1, 2006

Before Judges Seltzer and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3816-04.

Martin A. McGann, Jr. argued the cause for appellants (Martin A. McGann, attorney; Marc A. Leckstein, on the brief).

Michael B. Steib argued the cause for respondent.

George D. McGill argued the cause for intervenors Todd Magee and Jackie Jones (Pringle Quinn Anzano, attorneys; Mr. McGill, on the brief).

PER CURIAM

Plaintiffs Paul and Lee Manton (the Mantons) appeal from a judgment of the Law Division affirming a resolution adopted by defendant Borough of Atlantic Highlands Unified Planning Board (the Board) denying their major subdivision application. We affirm.

The Mantons applied to the Board for a variance to divide their existing lot at 2 Keystone Drive into three residential lots. The existing lot is 48,915 square feet and contains a single residential home, which was to remain on one of the three proposed lots. Keystone Drive has a paved neck ending in a gravel circle. The Mantons' property fills the entirety of the circle with the drive to the house coming off the paved neck. The application proposed that two additional residences be constructed on the other lots with frontage only on the gravel portion of Keystone Drive.

Article 7, Section 7.6, of the Development Regulations of the Borough of Atlantic Highlands requires that "[e]very principal building shall be built upon a lot with frontage upon a public street improved to meet the municipal requirements or for which such improvement has been guaranteed by the posting of a performance guarantee." Improvements to meet the municipal requirements were not proposed for the roadway and, as a consequence, a variance was required.

The lots fronting on the outside of the encircling gravel portion of Keystone Drive are graded away from the subject property. Consequently, the subject property drains toward those lots and then down toward the road below. Some of those property owners objected to the subdivision (the objectors) and two intervened (the interveners) in the action in lieu of prerogative writ that followed the denial of the application. The principal bone of contention was the potential impact the proposed subdivision would have on the stability of the slopes on which the objectors' homes were located. Portions of the Atlantic Highlands are known for being susceptible to slope erosion, and the municipality, accordingly, adopted a steep-slope ordinance. In addition, two owners of surrounding property expressed concerns about the increased traffic that would result on the already narrow gravel portion of Keystone Drive, which is not wide enough for two cars to pass each other.

Before the Board, plaintiffs presented a Report on Subsurface Soil and Foundation Investigation by Meredith R. Roessner and Robert B. Simpson, P.E., which concluded that plaintiffs' plans would not result in slope instability. Plaintiffs also relied on a Stormwater Management Report by Daniel W. Busch, P.E., P.P., which concluded plaintiffs' plans would have "de minimus impact" on the subject property and the surrounding properties. The objectors presented an engineering report prepared by Suzanne Macaoay, Senior Project Manager of Sadat Associates, Inc. Macaoay concluded that the proposed development would "endanger the welfare and safety of the surrounding properties and their occupants" based on the slopes in the area. The Board then requested that its own engineer review the data for the Board.

The Board's engineer, Katherine L. Elliott, P.E., P.P., authored a report to the Board opining "that Keystone Drive should remain as a gravel road as the gravel surface is more pervious to stormwater and retains the character of the neighborhood." She also concluded that the proposed plans would produce less runoff than the pre-development conditions.

When the matter came to a vote by the Board, four of the eight Board members voted against approving the subdivision, and the application was accordingly denied. The implementing resolution recited the evidence that had been considered and made various findings of fact. Specifically, the Board found that "[t]he Applicant does not propose any improvements to Keystone Drive, which would remain unimproved and which would not conform to the RSIS or Borough standards." It also found that:

The Applicant's witnesses did not quantify what efforts had been made in order to comply with the RSIS or Borough standards for road improvements so as to demonstrate a practical difficulty or unnecessary hardship upon the property owners, nor did the Applicant's witnesses present any testimony to demonstrate why the proposed structures should not be required to be related to a street. In addition, the Applicant's witnesses did not present any testimony with respect to the adequacy of existing Keystone Drive for the provision of access for fire-fighting equipment, ambulances and other emergency vehicles necessary for the protection of the health and safety of the new residents of the proposed subdivided lots.

As a consequence, the Board concluded that the Mantons had failed to present sufficient evidence to permit construction of dwellings that did not front on an improved street. The Board also reviewed the expert testimony presented by the objectors and the Mantons and concluded that the Manton's expert lacked credibility and agreed with the assessment of the objectors' expert. As a consequence, the Board concluded that it was "not prepared to grant an application in which slope stability is in serious question." Due to the inadequacy of the Mantons' proofs, the application was denied.

In deciding the action in lieu of prerogative writs, the judge noted that the Mantons bore the burden to prove that they were entitled to a variance. In addition, the judge noted:

If the board has denied a variance, then as stated in Medical Realty v. Bd. of Adjustment, 228 N.J. Super. 226, 233 (App. Div. 1988), "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."

The judge concluded that the Mantons had failed to meet this heavy burden and dismissed their action.

The Mantons raise the following issues on appeal

POINT I - THE TRIAL COURT ERRED IN NOT DETERMINING THAT THE FINDINGS AND CONCLUSIONS OF THE DEFENDANT BOARD WERE ARBITRARY, CAPRICIOUS AND UNREASONABLE IN THAT THE BOARD FAILED TO ACKNOWLEDGE THE REPORT AND TESTIMONY OF ITS OWN EXPERT WITNESS.

POINT II - THE WEIGHT OF EVIDENCE SUPPORTING PLAINTIFFS' APPLICATION DEMANDS THAT IT SHOULD HAVE BEEN APPROVED BY THE BOARD.

POINT III - THE ONLY TRUE ISSUE FOR THE BOARD TO DECIDE WAS THE NATURE AND EXTENT OF IMPROVEMENTS TO KEYSTONE DRIVE.

 
After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issues presented by plaintiffs are without sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(1)(A), (E), and we affirm substantially for the reasons expressed by the trial judge in his written opinion dated June 23, 2005. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).

Affirmed.

(continued)

(continued)

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A-6699-04T2

December 1, 2006