WILLIAM L. MUELLER et al. v. MOORESTOWN TOWNSHIP ZONING BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0604-06T50604-06T5

WILLIAM L. MUELLER and

JOSEPH BENARDELLA,

Plaintiffs-Respondents,

v.

MOORESTOWN TOWNSHIP

ZONING BOARD,

Defendant-Respondent,

and

A. LEIGH POWELL,

Defendant/Intervenor-

Appellant.

____________________________________________________________

 

Submitted May 1, 2007 - Decided July 5, 2007

Before Judges Weissbard and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, Docket

No. L-000190-06.

Alfred O. Powell, attorney for appellant.

Duane Morris, attorneys for respondents

Mueller and Benardella (George J.

Kroculick, of counsel; Mr. Kroculick

and Michael J. McCalley, on the brief).

Ryan and Thorndike, attorneys for respondent Moorestown Tp. Zoning Bd. (Peter R. Thorndike,

relying on the briefs of appellant and respondents

Mueller and Benardella).

PER CURIAM

In their complaint in lieu of prerogative writs, plaintiffs William Mueller and Joseph Benardella alleged the Moorestown Township Zoning Board (Board) acted arbitrarily, capriciously, and unreasonably when it denied their application for a lot-width variance of 3.20 feet at the setback line. On August 23, 2006, the Law Division reversed the Board's decision and entered judgment in favor of plaintiffs and against defendants A. Leigh Powell and the Board. We have been advised by the Board's attorney that the Board "does not appeal from the decision of the trial court and accepts said decision granting variance relief to applicants," but Powell, a neighbor, has appealed. We affirm.

Plaintiffs are the contract purchasers of two acres of residentially zoned property commonly known as 615 New Albany Road, and identified as Block 3801, Lot 32, on the Moorestown Township tax maps. The property is located in the R-1A district of Moorestown Township, which requires a minimum lot width of 150 feet at the fifty-foot front-yard setback line. But the lot's width at the setback line is only 146.80. Thus, to construct a single-family residential dwelling, plaintiffs must obtain a 3.2 foot variance.

Plaintiffs' application was initially heard, and denied, by the Board. After plaintiffs appealed, however, the Law Division remanded the matter to the Board for submission of "additional relevant evidence including, but not limited to, the establishment of the location of the proposed single family residence on the subject lot."

James Miller, a licensed professional planner since 1971, who testified at both Board hearings, was the only expert witness to testify regarding plaintiffs' application. According to Mr. Miller, plaintiffs' need for a variance was a "classic hardship" case because "the shape of the lot" (slightly less than the 150 feet required by the Township ordinance) "triggers the need for the variance":

[I]t's a classic hardship . . . and there isn't any reasonable way for the lot owner to cure the hardship because they don't own any property that adjoins the lot that they could look to to obtain some additional acreage. Moreover, there's also established uses in all the properties around the perimeter of the property, so that any effort to acquire additional property would cause some disruption to the improvements on those adjoining properties. . . . In terms of the negative criteria, . . . the relief requested would not impair the intent or purpose of the Zone Plan and in this case . . . actually the relief would in . . . some ways advance the purposes rather than impair the purposes of the Zoning Ordinance in that the relief requested would enable the . . . property to be used as it's currently zoned to be used.

Following the remand hearing, the Board once again denied plaintiffs' application. Plaintiffs returned to the Superior Court and, on August 9, 2006, after hearing oral argument in connection with plaintiffs' summary judgment motion, the court determined plaintiffs were entitled to the variance they sought. The court's findings and conclusions included the following:

It's not enough to have the neighbors simply rise and testify at a hearing that they don't want to [have] a house built in one spot or another, or that they would rather see the lot preserved as open space, or any other of these personal complaints that we see so often.

. . . .

Here, in this case, we have the undisputed testimony of a New Jersey licensed professional planner, certified by the American Institute of Planners. And no place in the record, either initially or back in November of 2005 or on remand in March of this year, does any voting member of the Board . . . challenge, or in any way, question the credibility of Mr. Miller or his expertise.

He testified and no one disagreed, that the positive criteria has [sic] been satisfied because this is, in his terms, "A classic hardship variance situation["] . . . and that the, "Imposition of the 150 foot width requirement at the building line would basically eliminate any opportunity to put a structure on the property." And, "Would, in effect, zone the property into inutility."

. . . .

Then he testified that in terms of the negative criteria, the relief requested would not impair the intent and purpose of the zone plan, and in this case, actually the relief would, in some ways, advance the purpose rather than impair the purposes of the zoning ordinance in that the relief requested would enable the property to be used as it's currently zoned to be used.

Furthermore, he said that the relief requested is essentially de minimis. And I concur with that. In this case, the relief sought is de minimis because if, indeed, there were 150 feet at the setback line on this lot, rather than 146.85, we wouldn't be here.

And I already pointed out, the use that is sought is permitted. But we wouldn't be having this discussion if there were three more feet.

This lot is . . . larger by several thousand . . . square feet than the neighboring properties.

. . . [T]he house proposed is -- as I see it and from the testimony, consistent with those around it in both size and style. And consequently, in my opinion, can't be logically argued that it could, in any way or any respect, impair the intent or purposes of the zone plan.

. . . .

This site is a tapered trapezoidal in shape lot. Moorestown's ordinance is silent on whether or not the set back width of 150 feet continues beyond the setback line. The only requirements beyond the setback line are side and rearyard bulk standards with which this property can comply easily.

. . . .

. . . [A]gain, the undisputed testimony of the plaintiffs' expert at both hearings was clear and I think unequivocal, as well as undisputed on the negative criteria.

For all of those reasons, the action of the Board is reversed and the variance is allowed.

"Judicial review of the decision of a . . . Board of Adjustment ordinarily is limited. A board's decision 'is presumptively valid, and is reversible only if arbitrary, capricious, and unreasonable.'" Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998) (quoting Sica v. Bd. of Adj. of Wall, 127 N.J. 152, 166-67 (1992)).

In these highly controversial and oftentimes debatable zoning cases the courts 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 such applications for variance. Therefore, the law presumes that boards of adjustment . . . will act fairly and with proper motives and for valid reasons. . . .

Such public bodies, because of their peculiar knowledge of local conditions must be allowed wide latitude in the exercise of delegated discretion. . . . A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable.

[Lang v. Zoning Bd. of Adj. of N. Caldwell, 160 N.J. 41, 58 (1999) (quoting Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965)) (internal quotation marks omitted).]

The actions of such boards, however, are not immune from judicial scrutiny and, where appropriate, judicial intervention. "The deference to local boards contemplated by Kramer is not intended to be applied rigidly or categorically, and is predicated on the existence of adequate evidence in the record supporting the board's determination either to grant or deny variance relief." Ibid.

N.J.S.A. 40:55D-70(c) authorizes a board of adjustment to grant bulk variances. Subsection (c) is further subdivided into two categories, a variance under (c)(1) and a variance under (c)(2). N.J.S.A. 40:55D-70(c)(1) permits such a variance

[w]here: (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 pursuant to article 8 of this act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property . . . .

Based on the clear and uncontradicted testimony of plaintiffs' expert, the trial court determined that plaintiffs were entitled to a variance pursuant to N.J.S.A. 40:55D-70(c)(1). See New York SMSA v. Bd. of Adj. of Twp. of Weehawken, 370 N.J. Super. 319, 338 (App. Div. 2004) ("While a board may reject expert testimony, it may not do so unreasonably, based only upon bare allegations or unsubstantiated beliefs.") (citing Cell S. of New Jersey v. Zoning Bd. of Adj. of W. Windsor, 172 N.J. 75, 87 (2002)). We are satisfied the court carefully reviewed the proceedings before the Board, and the record fully supports the court's findings and conclusions. We therefore affirm substantially for the reasons stated by Judge Sweeney in his comprehensive oral decision on August 9, 2006.

Affirmed.

 

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A-0604-06T5

July 5, 2007