MICHAEL & BETH SPOONER v. THE TOWNSHIP OF MILLSTONE, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1786-06T11786-06T1

MICHAEL & BETH SPOONER,

Plaintiffs-Respondents,

v.

THE TOWNSHIP OF MILLSTONE,

AND THE TOWNSHIP COMMITTEE OF

THE TOWNSHIP OF MILLSTONE,

Defendants,

and

THE PLANNING BOARD OF THE

TOWNSHIP OF MILLSTONE,

Defendant-Appellant.

 

Submitted September 25, 2007 - Decided

 
Before Judges Skillman and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-4927-05.

Michael B. Steib, attorney for appellant.

Heilbrunn, Pape & Goldstein, attorneys for respondents (Kenneth L. Pape and Jeffrey Zajac, on the brief).

PER CURIAM

Plaintiffs own a parcel of real property in Millstone Township, Monmouth County. They applied to defendant Millstone Township Planning Board (the Board) to subdivide the property into two lots; the application also sought bulk variances. After public hearings in August and September 2005, the Board denied the application, memorializing its decision in a resolution on October 6, 2005.

Plaintiffs filed a complaint challenging the Board's decision. In their first count, they claimed that the Board's decision was arbitrary, capricious and unreasonable. In the second and third counts, they asked the court to set aside the Board's decision that they did not qualify for relief under the zoning ordinance's grandfather clause. They also sought relief against the Township, asking the court to invalidate portions of the zoning ordinance.

In a written opinion on October 6, 2006, the Law Division concluded that the Board's decision was arbitrary and capricious. The court also found that plaintiffs were entitled to relief under the ordinance's grandfather clause. Consequently, the judge directed the Board to adopt a resolution granting plaintiffs' minor subdivision and bulk variance application. In an order of October 30, 2006, the court dismissed counts two and three of the complaint.

On appeal, the Board claims that the trial judge failed to apply the proper standard of review, failed to give its action a presumption of validity, and instead substituted his own judgment for the Board's. We agree. Accordingly, we reverse and reinstate the Board's decision.

Plaintiffs' property is located in the Township's RU-P Rural Preservation Zone District, which allows only for the development of single family homes on lots with a minimum lot area of ten acres, and minimum lot frontage and width of 250 feet. The frontage of plaintiffs' lot is 400 feet along Agress Road. The property is irregularly shaped and "encumbered with wetland buffer and steep sloped areas." The only structures on the property are "an existing two story residential dwelling with [a] . . . barn, shed, pool and driveway."

The current use is as a single family residence. Plaintiffs proposed to create a new lot for the existing residence and an additional building lot by dividing the single parcel into two lots: lots 27.15 and 27.14. The Board summarized plaintiffs' requests for relief as follows:

The Applicant proposes to subdivide the parcel to create two (2) lots. Proposed lot 27.15 will have a lot area of six (6) acres where ten (10) acres are required in the RU-P Zone and will retain the existing residence. A Variance is required for deficient lot area for this proposed parcel. Proposed lot 27.14 will have a lot area of four (4) acres where ten (10) acres are required in the RU-P Zone and will require a Variance for lot area. That parcel is proposed to be developed with a new single family residence. That lot will also have deficient lot frontage of 146.83 ft. where 250 ft. are required and lot width of 171.56 feet where 250 ft. are required. Variances are required for these non-conformities for proposed lot 27.14. In addition, lot 27.14 is proposed to be developed with a future driveway which will be constructed through steep-slope areas contrary to the Provisions of the Ordinance, Section 9-5.2 and Section 11-24.3a which do not permit disturbance of slopes 15% or greater and require such slops to be placed within a conservation easement.

At the public hearings, plaintiffs presented expert testimony from engineers Lorali Totten and Peter W. Strong, and professional planner Michael Jovishoff. Totten testified that the proposal had been designed to minimize the impact it would have on the environment, saving as many trees on the property as possible. The proposed driveway was to run through a steep slope on the property. Totten testified that she had worked with the Board's staff to minimize the impact the driveway would have on the slope so "that the driveway would [not] have any greater impact than if the slopes were less than the 15 percent slopes."

Totten also testified that although the wetland boundary crosses the rear portion of the property, the required fifty-foot buffer had been met. The soil had been tested and found suitable for a septic system, and satisfied Township requirements for storm water management. Finally, Totten testified that all surrounding lots were similarly, if not more severely, developed.

Strong testified that none of the trees to be removed were "within the wetlands buffer and the Township's 100 foot stream corridor buffer."

Jovishoff asserted that "the proposed subdivision better reflects the character of the neighborhood in which it's located than the existing property does" for a number of reasons. Namely, adjacent and nearby properties are "considerably smaller and . . . have considerably less frontage and width than the subject property." He asserted that the current lot is much larger than the median size lot in the area, and nearly double the largest lot. Even after the subdivision, the "proposed lots [would] remain larger in size than the properties in the vicinity of the subject property," and at the same time "will be closer in the character [of] the prevailing and adjacent properties."

Jovishoff also reviewed the Township's Master Plan. He opined that the subdivision would be consistent with its goal of "[p]romoting the establishment of appropriate rural populations and densities in concentrations that will contribute to the well-being of persons and neighborhoods," and that residential development should be encouraged where it is "compatible with development patterns."

In terms of the negative criteria, Jovishoff asserted that the proposed subdivision

would have no substantial detriment . . . on the adjoining properties or the public good in general. The subdivided lots will be more consistent with the size and configuration of the properties in the area [and] will not detract but only enhance the existing character of the area. Further, the future addition of one home in the area that is almost fully developed would have no noticeable impact.

As to the project's effects on the environment, he testified that "[t]he proposed subdivision and ultimately any proposed development on the site will meet all of the requirements, all the buffering distance and setback requirements from environmentally sensitive area[s]." He said no environmentally sensitive areas, which constitute approximately one acre of the ten-acre lot, would be disturbed.

The Board voted unanimously to deny the application. In its resolution, it discussed the testimony of plaintiffs' experts, and set forth in detail its reasons for disagreeing with a number of their conclusions.

The Board recognized that the "Master Plan and Zoning Ordinance were designed in part to protect fragile environmental conditions within the Township including those relating to wetlands, wetland buffers and steep slopes." The zoning of the parcel in question was "intended to prevent more intense development of the subject parcel and property similarly situated." Thus, the Board concluded that the requested variances "to permit lot sizes of only 40% and 60% of that required in the Zone constitute a substantial departure from the Master Plan, Zone Plan and Zoning Ordinance and that the grant of the requested variance would be substantially inconsistent with those documents."

In addressing the c(2) variance criteria, the Board found that granting a c(2) variance would not "advance the purpose[s] of the Municipal Land Use Law." It based its decision on a lack of testimony "as to how the grant of variances to provide substantially deficient lot sizes would advance the purpose of the Municipal Land Use Law other than to create more intense development in an area which has been recognized . . . as being environmentally sensitive and appropriate for larger lot zoning." It further found that granting the variance would "result in a substantial detriment to the public good and substantial impairment of the intent and purpose of the Zone Plan and Zoning Ordinance." Specifically, the Board noted that granting the variances would "permit grossly smaller lot sizes than that required along with the disturbance of steep-slope areas," which would be "substantially inconsistent with the goals for preservation of the environment within this area."

In his written decision reversing the Board, the trial judge found that the Board's action was arbitrary, unreasonable and capricious. The judge's opinion says, in part:

The court accepts as credible, the testimony of Mr. Jovishoff and finds that the benefits of the deviation would substantially outweigh any detriment. The proposed subdivision of the property mirrors the character of the surrounding property. In addition, the proposed development respects and preserves the adjacent environmentally sensitive areas. The court also finds the proposed subdivision will create two residential lots commensurate with the surrounding properties and provide the community with a consistent residential development of the area.

The court is also clearly convinced from the unrefuted testimony that the variance relief can be granted without substantial detriment to the public good and without substantial impairment of the zone plan. The court accepts Mr. Jovishoff's in-depth testimony regarding the characteristics of the development within the area of the property. The dimensions of the property and its frontage and width are clearly in keeping with the surrounding lots. The proposed Lots 27.14 and 27.15 will be consistent with the size and configuration of the lots in the area of the property.

Based upon the above, the court finds the proposed subdivision will enhance the existing character of the area, not impair it. Also, the proposed dwelling will have no impact on environmentally sensitive areas. From the testimony, the court finds the development of the property will preserve environmentally sensitive areas through Plaintiffs' voluntary placement of conservation easements. The court finds the proposed subdivision is consistent with the Master Plan's goal of providing sensible, consistent development of the immediate area.

In addition, the court finds the conditions for the Application of the Grandfather Clause of the RU-P Ordinance have been met. The court finds that the lot to be subdivided is an isolated lot that conformed to the requirements of the zone in effect immediately prior to enactment of the RU-P zone, and there is no other contiguous lot in the same ownership, nor was there at the time of the effective date of the amendment establishing the RU-P zone.

The court also finds that each of the two lots to be created by the minor subdivision will conform to and can be developed in accordance with the area, yard and bulk requirements of the zone district in effect immediately prior to the effective date of the amendment establishing the RU-P zone, except the de minimis violation of the frontage along Agress Road and the width of the lot at the setback line.

A decision of a municipal planning board is entitled to deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 383 (1995). "Courts give greater deference to variance denials than to grants of variances, since variances tend to impair sound zoning." Med. Ctr. at Princeton v. Princeton Zoning Bd. of Adj., 343 N.J. Super. 177, 199 (App. Div. 2001). A court should sustain a municipal board's zoning decision if it "comports with the statutory criteria and is founded on adequate evidence." Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990). A court's job is to determine whether the board followed the statutory guidelines, and properly exercised its discretion. Ibid. Consequently, a court's review of a planning board decision pertaining to a variance application is limited to "determining whether the board's decision was arbitrary, unreasonable, or capricious." Med. Ctr. at Princeton, supra, 343 N.J. Super. at 198. A court's scope of review "is not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record." Jock v. Zoning Bd. of Adj. of Twp. of Wall, 184 N.J. 562, 597 (2005).

Plaintiff sought variance relief pursuant to N.J.S.A. 40:55D-70c(2). That provision provides that

where in an application or appeal relating to a specific piece of property the purposes of this act would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, [the board of adjustment may] grant a variance to allow departure from regulations pursuant to article 8 of this act.

[N.J.S.A. 40:55D-70c(2).]

A c(2) variance should not be granted when only the purposes of the owner are advanced; rather, "[t]he grant of approval must actually benefit the community in that it represents a better zoning alternative for the property." Kaufmann v. Planning Bd. Twp. of Warren, 110 N.J. 551, 563 (1988). To obtain a c(2) variance, the applicant must also satisfy the negative criteria:

No 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.

[N.J.S.A. 40:55D-70(d).]

Applying these criteria here, we conclude that the Board's decision to deny plaintiffs' subdivision application with variance requests was not arbitrary, capricious or an abuse of discretion. The record supports the Board's conclusion that only the purposes of the owners of the property would be advanced by granting the requested variances, and that an approval would not benefit the community by representing a better zoning alternative for the property. The record also supports the Board's conclusion that the variance could not be granted without substantial detriment to the public good and that plaintiffs failed to establish that the variances would not substantially impair the intent and purpose of the zone plan and zoning ordinance. For example, as the Board pointed out, recent zoning changes had been made with the intent of protecting the fragile environmental conditions within the Township, including those on the subject parcel. Plaintiffs' property exhibited many of those environmental characteristics that the rezoning of the property was intended to protect.

The Board indicated that to grant the requested variances would be "to permit grossly smaller lot sizes than that required" by the extant ordinance. It would disturb the "steep slope areas" on the property, which the Board found would be a substantial detriment to the public good and inconsistent with the preservation goals in the zone. The Board reasoned that the subdivision would create gross deviations, of forty percent for one lot and sixty percent for the other, from the required lot coverage; and that these deviations were a "substantial departure from the zoning requirements which cannot be harmonized with the goals of the Municipal Land Use Law, the Township Master Plan or the Township Zoning Ordinance."

The Board found that "the allowance of substantial disturbance of steep-sloped areas to access a new residence on this environmentally sensitive property" was not de minimis as argued by plaintiffs' experts, and as the judge ultimately concluded. As the Board succinctly stated in its resolution, "[t]he simple fact is that the property is only ten (10) acres in size which supports one residential home under the current zoning and the Applicant wants to increase that density by 100%." Those findings by the Board could reasonably have been reached based on the evidence in the record and are entitled to the court's deference.

Because a planning board's determination is presumed to be correct, a challenger to its decision bears a heavy burden of proving otherwise. Ardolino v. Florham Park Bd. of Adj., 24 N.J. 94, 105 (1957). Where the board has denied a variance, that burden is even heavier, and a plaintiff must show that the Board's action was arbitrary and capricious. Med. Ctr. at Princeton, supra, 343 N.J. Super. at 199; Kenwood Assocs. v. Bd. of Adj. of City of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976). Here, plaintiffs simply have not met that test. The Board was not convinced by plaintiffs' experts, and specifically found that plaintiffs

failed to present any testimony as to how the grant of variances to provide substantially deficient lot sizes would advance the purpose of the Municipal Land Use Law other than to create more intense development in an area which has been recognized by the State Plan, the Master Plan of the Municipality and the Ordinance as being environmentally sensitive and appropriate for larger lot zoning.

The record supports that conclusion.

In his opinion, the trial judge made credibility findings. He accepted Jovishoff's testimony as credible, and, in effect, substituted his own judgment for that of the Board in concluding that he was "clearly convinced" that the variance relief could be granted without substantial detriment to the public good and without substantial impairment of the zoning plan. The judge failed to apply the proper standard of review.

Finally, we address the Board's argument that the Law Division judge erred when he concluded that plaintiffs qualified for a subdivision pursuant to the grandfather clause in section 5-6A.4(b) of the zoning ordinance. That provision permits a minor subdivision of existing lots that are less than twenty acres in area under certain conditions. The clause states:

Minor Subdivision of Existing Lots Less than Twenty Acres in Area. A single lot in the RU-P zone which is more than ten (10) acres but less than twenty (20) acres in area shall be permitted a minor subdivision for the creation of not more than two (2) lots (one (1) new lot plus the remainder of the original lot) provided that:

1. The lot to be subdivided is an isolated lot that conformed to the requirements of the zone in effect immediately prior to enactment of the RU-P zone, and there is no other contiguous lot in the same ownership; and

2. No other contiguous land in the same ownership adjoined to the lot at the time of the effective date of the amendment establishing the RU-P zone; and

3. Each of the two (2) lots to be created by the minor subdivision will conform to and can be developed in accordance with the area, yard and bulk requirements of the zone district in effect immediately prior to the effective date of the amendment establishing the RU-P zone; and

4. Each of the two (2) lots will adhere to use requirements of the RU-P zone district.

The Board submits that plaintiffs do not qualify under this grandfather clause because they have not met the requirements of subsection 3, in that the property does not have sufficient frontage or width to permit a minor subdivision under the zoning provisions previously in effect prior to adoption of the amendment establishing the RU-P zone. Proposed Lot 27.14 would be deficient in both the minimum frontage and width requirements of 250 feet, having a frontage of 146.83 feet and a width of 171.56 feet. The trial court acknowledged that the property did not comply with the prior zoning requirements, but found that the frontage and width deficiencies were "de minimis," and not a bar to application of the grandfather clause. The trial court again substituted its judgment for that of the Board.

We agree with the Board that the failure to comply with subsection 3 of the grandfather clause makes it inapplicable to plaintiffs' property. Application of a grandfather clause requires satisfaction of the applicable criteria. See, e.g., George F. Barnes Land Corp. v. Bd. of Adj. Twp. of Wyckoff, 174 N.J. Super. 301, 303-04 (App. Div. 1980) (nonconforming parcel did not qualify under grandfather clause). Indeed, the frontage and width requirements of proposed Lot 27.14 fall short by approximately 100 feet each. The Board's determination that this deficiency was not de minimis was neither arbitrary nor capricious.

The decision of the Law Division is reversed. We reinstate the Board's decision denying plaintiffs' subdivision application with variances. We also reinstate counts two and three of plaintiffs' complaint to the extent that they seek relief against the Township concerning the validity of ordinance 03-24.

Reversed and remanded for further proceedings consistent with this opinion.

(continued)

(continued)

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A-1786-06T1

October 16, 2007