VAUXHALL ASSOCIATES v. THE MANALAPAN TOWNSHIP PLANNING BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4130-05T54130-05T5

VAUXHALL ASSOCIATES,

Plaintiff-Respondent,

v.

THE MANALAPAN TOWNSHIP

PLANNING BOARD,

Defendant-Appellant.

__________________________________

 

Submitted March 28, 2007 - Decided July 13, 2007

Before Judges A. A. Rodr guez and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2072-05.

Americo J. DeNoia, Jr., attorney for appellant.

Gibbons, attorneys for respondent (Peter Carton, of counsel; Michael Miceli, on the brief).

PER CURIAM

Plaintiff Vauxhall Associates ("Vauxhall") sought to subdivide a vacant so-called "flag lot" that it owns in Manalapan Township. To proceed with the subdivision, Vauxhall applied to defendant, the Manalapan Planning Board ("the Board"), for site plan approval and certain variances. After the Board rejected Vauxhall's application, plaintiff brought an action in lieu of prerogative writs in the Law Division. On March 3, 2006, the Law Division reversed the Board's decision, finding that the Board had misinterpreted its local ordinance concerning flag lots and had misapplied them to Vauxhall.

The Board now appeals the Law Division's March 3, 2006 order. We affirm the order in part, as it relates to the flag lot ordinance. However, we remand the matter to the Board for a final determination of unsettled issues concerning a cul-de-sac proposed by Vauxhall for one of the two lots to be created by the subdivision.

I.

Vauxhall is a partnership comprised of Michael Sosinski, his brother John Sosinski, and his former business partner and continuing partner in the subject property, Richard Maser. Michael Sosinski is a professional engineer and planner. Since November 1998, Vauxhall has owned the subject property, which is a 7.9 acre parcel in Manalapan designated as Block 82, Lot 7.01.

As Michael Sosinski recounted in his testimony before the Board, the site was originally two narrow parcels 100 feet wide, each fronting on Oakland Mills Road and running back over 2,000 feet to the Manalapan Brook. In 1986, a dwelling on the site and a portion of the surrounding land, now Lot 8.01, was separated into a 150-foot wide, 536-foot deep rectangular parcel fronting on Oakland Mills Road. The remaining land, the property now in question, created a flag lot. The "stem" or "pole" of the flag lot consists of 50 feet of frontage on Oakland Mills Road extending back 536 feet. At that point, the "flag" portion of Lot 7.01 begins, as the parcel widens from 50 feet to nearly 200 feet and then extends back almost 1,600 feet to the Manalapan Brook.

The proposed subdivision would truncate the front of Lot 7.01 adjacent to Oakland Mills Road, creating a 3.3 acre parcel with, in essence, a shorter flag. The front parcel, proposed Lot 7.02, would continue to have access to Oakland Mills Road through the unaltered stem of the flag. The remaining portion, proposed Lot 7.03, would be a rectangular 4.4 acre parcel. That rear parcel would no longer have access to Oakland Mills Road through the flag stem. Instead, Lot 7.03 would be connected to Beagle Drive, a short dead-end street terminating at the property's northern border. Beagle Drive was created through the development of a different subdivision in the late 1980s and early 1990s. Vauxhall's engineer testified that, unless a cul-de-sac were built, Lot 7.03 would have 40.87 feet of frontage along Beagle Drive to the north.

The subject property is currently a wooded and vacant parcel within the township's "R-R" (Rural Residential) zoning district. It is bordered by Oakland Mills Road to the west, by an existing development (and by the present end of Beagle Drive) to the north, by Manalapan Brook to the east and an undeveloped municipally-owned tract to the south. The two lots to be created by the proposed subdivision each comply with the R-R zone's minimum lot size of 80,000 square feet, or 1.84 acres. The property is in an area generally considered as environmentally sensitive, and certain portions of it near the Manalapan Brook are within a conservation easement.

Vauxhall proposed to build one single-family home on each of the subdivided lots. Each home would be serviced by a private well and septic system. The plans also included the construction of dry wells, rather than a detention basin, so as to reduce land disturbance and minimize any increase in storm hazards.

Vauxhall initially applied to the Board for site plan approval in September 2004. The application was first presented for public discussion in October 2004. Additional Board hearings were conducted on January 13 and March 10, 2005.

A major concern discussed at the hearings was access. Vauxhall proposed that access to Lot 7.02, the shortened flag lot, would be through the "stem" of the flag, using an existing access road connecting to Oakland Mills Road. Vauxhall further proposed that access to Lot 7.03 would be from Beagle Drive, which presently terminates by the parcel. In this latter regard, Vauxhall presented plans for a bulb-shaped cul-de-sac located at the end of Beagle Drive, which could connect to new Lot 7.03. Vauxhall contended that such a cul-de-sac would eliminate the need for a variance from Section 95-5.1 of the zoning ordinance, which otherwise requires lot frontage of two hundred feet.

However, Vauxhall's engineer and planning experts, as well as Michael Sosinski, opined to the Board that to build such a cul-de-sac just for one house would not substantially increase the safety of the neighborhood, would cause a significant amount of land disturbance, and would create an ongoing need for drainage maintenance. Accordingly, Vauxhall suggested that the cul-de-sac be shown only on paper and not be constructed. The township engineer agreed that it was not necessary, at least from an engineering perspective, to build such a cul-de-sac. He recommended that the Board approve Vauxhall's application, and determine that the building of the cul-de-sac was unnecessary. In that event, the land upon which a cul-de-sac would have been built could be dedicated to the township for the frontage requirement. However, because the Board did not wish to discuss these access options for Lot 7.03 with Vauxhall without first addressing the viability of the modified flag lot on Lot 7.02, the plans that Vauxhall submitted for site plan approval included the construction of the cul-de-sac.

The Board hearings also considered the site plan's proposed acre-and-a-half conservation easement, connecting the Manalapan Brook to the township's nearby parcel. Michael Sosinski testified that the property dedicated to such an easement would be "walkable," as it has slopes no higher than ten percent. As proposed, however, the easement would not be accessible from the cul-de-sac.

Several objectors from the neighborhood, and counsel for such objectors, spoke out at the Board hearings against the proposed subdivision. The objecting neighbors noted that the parcel is near a watershed, and argued that development near the watershed should be minimal. They further argued that a public reason to allow the development had not been shown. They also raised concerns about the public need to preserve open space, drainage issues, aesthetics, trash pickup and snow removal. After its third and final meeting on March 10, 2005, the Board denied Vauxhall's application. The primary stated reason for the denial was Manalapan's flag lot ordinance, Section 95-7.43B, a provision which, by its general terms, disallows flag lots on more than ten percent of the lots in a subdivision. Because one of the two lots in the proposed new subdivision, Lot 7.02, would be a flag lot, the Board reasoned that the subdivision would violate the ordinance's ten percent cap because fifty percent of its lots would be flag lots.

The Board rejected Vauxhall's argument that Section 95-7.43B is inapplicable because the subdivision would not increase the number of flag lots on the site. The Board further rejected Vauxhall's alternative request for a variance from the strict enforcement of Section 95-7.43B. In the course of its analysis, the Board's March 10, 2005 resolution noted that "[t]he existing flag lot was created by a previous subdivision . . . and is currently a single buildable lot which conforms to all [d]evelopment [r]egulations of [the] Township . . . ." The Board further determined that Vauxhall has failed to establish sufficient hardship under N.J.S.A. 40:55D-70c(1) for a variance, because the property could still accommodate a single family home, and "the only hardship to the applicant would be the economic hardship of not getting an additional building lot." Moreover, the Board determined that Vauxhall had not proven the requisite positive criteria for a variance under N.J.S.A. 40:55D-70c(2), because the subdivision "is of no benefit to neighbors, the community at large, or any other party other than to the applicant."

To some extent, the resolution also addressed the proposed cul-de-sac, summarizing the strong opposition from neighbors about its environmental impact. However, because the Board's denial of a variance from the flag-lot provision, Section 95-7.43B, nullified Vauxhall's application, the Board ultimately did not reach the question of whether a cul-de-sac would satisfy the frontage requirements of Section 95-5.1 and, if so, whether the cul-de-sac should be built or instead should remain as an un-constructed "paper cul-de-sac." As the Board's resolution stated:

The Board finds that [as to Lot 7.03] Section 95-5.1 . . . requires lot frontage of 200 [feet] where 50.01 [feet] exists. The Board finds that Beagle [Drive] currently has insufficient frontage to meet this requirement and the applicant would require either an additional variance or the applicant would have to increase frontage on Beagle Drive. The applicant proposed to eliminate the deficient frontage by the construction of a cul-de-sac on Beagle Drive.

. . . .

The applicant presented considerable testimony with respect to both the actual construction of a [c]ul-de-sac on Beagle Drive vis- -vis a paper cul-de-sac which would not be constructed but would provide credit for deficient frontage to eliminate the variance on Beagle Drive.

The Board finds that unless a variance is granted with respect to Section 95-7.43B [concerning] "Flag Lots"[,] the issue of how to deal with the additional bulk variances [including the cul-de-sac] is of no moment.

[Emphasis added.]

Following the Board's denial, Vauxhall brought an action in lieu of prerogative writs in the Law Division. After considering the record, the parties' written and oral arguments, and the applicable law, the judge granted summary judgment to Vauxhall on March 3, 2006. In his oral ruling, the judge found that the Board had misread and misapplied the flag lot ordinance, Section 95-7.43B, to these particular circumstances, in which the applicant was reducing the size of an existing flag lot rather than creating any more flag lots. The judge reasoned:

[Section 95-7.43B] sets forth the circumstances under which new flaglots would be permitted or prohibited. The frequent use of the terms permitted and prohibited throughout the ordinance clearly indicates that the ordinance has no [applicability] to the proposed subdivision of an existing flaglot and that results in two conforming lots and no new flaglot.

The clear purpose of the ordinance is to regulate the creation of a number of new flaglots in a subdivision. Nothing in the language of the ordinance indicates a suggestion much less an intent to prohibit the creation of two conforming lots from an existing previously approved flaglot with one lot retaining the existing flaglot configuration and the other one completely conforming to all provisions of the ordinance.

Otherwise the [Planning] Board['s] construction of the ordinance would be to prohibit subdivisions of existing flaglots unless the lot is of such a size to permit the creation of 10 conforming lots with one lot retaining the flaglot configuration set at one of the 10 or 10 percent of the lots are flaglots.

This is an interpretation that is not supported by the language and the context of the ordinance. The governing body could easily have included terms in the ordinance addressing proposed subdivisions of existing flaglots but it did not include any such terms . . . .

[Emphasis added.]

Consequently, the judge reached the following conclusion:

The [c]ourt holds that the Board's interpretation and application of the ordinance is not warranted by the language and intent of the ordinance and leads to [the] unreasonable and [il]logical result of effectively prohibiting a subdivision of existing flaglots to create two conforming lots.

The judge entered a corresponding order that day, declaring Vauxhall's site plan application to subdivide the subject property, in its revised form as of December 13, 2004, approved. Neither the order nor the judge's oral decision specifically addressed whether the cul-de-sac should or should not be built on Lot 7.03 in connection with the approval.

The Board appealed. During the course of briefing on the appeal, which had been extended at the Board's request, the Manalapan Township Committee adopted a new flag lot ordinance, No. 2006-18, on November 8, 2006. The new ordinance specifically provides that "[f]lag lots shall not be further subdivided." The ordinance further provides that it "shall control retrospectively to all matters pending affected flag lots before any forum."

On appeal, the Board raises the following points:

POINT I

THE LOWER COURT ERRED IN FINDING THAT THE DEFENDANT PLANNING BOARD IMPROPERLY APPLIED THE MANALAPAN FLAG LOT ORDINANCE AS THE LANGUAGE OF THE ORDINANCE WAS UNAMBIGUOUS.

POINT II

THE LOWER COURT ERRED IN ITS DE NOVO REVIEW OF THE MANALAPAN FLAG LOT ORDINANCE BY NOT LIBERALLY CONSTRUING THE ORDINANCE IN FAVOR OF THE MUNICIPALITY.

POINT III

UNDER THE TIME OF DECISION RULE THE FLAG LOT ORDINANCE IN EFFECT AT THE TIME OF APPELLATE REVIEW PROHIBITING THE FURTHER SUBDIVISION OF AN EXISTING FLAG LOT SHOULD CONTROL.

For the reasons that follow, we affirm the Law Division's decision, with one modification.

II.

We begin by recognizing that "public [land use] bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion." Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005) (citing Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965) and upholding the grant of a hardship variance). Hence, the ordinary standard of judicial review applied to a decision by such bodies is to determine whether the decision was "arbitrary, capricious, or in manifest abuse of its discretionary authority . . . ." Ibid.

However, questions of law determined by a township planning board do not warrant the same level of judicial deference. "Although a municipality's informal interpretation of an ordinance is entitled to deference, that deference is not limitless. As with other legislative provisions, the meaning of an ordinance's language is a question of law that we review de novo." Bubis v. Kassin, 184 N.J. 612, 627 (2005) (citations omitted) (overruling the municipality's determination that a berm topped with bushes and trees was not a "fence" as defined in the township ordinance). The de novo standard of review of such legal decisions continues on appeal after a trial court has made its own ruling. Ientile, Inc. v. Zoning Bd. of Adjustment, 271 N.J. Super. 326, 329 (App. Div. 1994) (citing Cherney v. Zoning Bd. of Adjustment, 221 N.J. Super. 141, 144-45 (App. Div. 1987) and noting that "interpretation is a judicial function and the conclusions of the Board of Adjustment and the trial court are not, in consequence, entitled to any special deference")).

The de novo standard on legal issues applies even more appropriately to planning board decisions, as opposed to the decisions of boards of adjustment that usually receive more discretion. N.J.S.A. 40:55D-48 provides that once an application for a subdivision is submitted to a planning board, "the planning board shall grant or deny preliminary approval . . . ." N.J.S.A. 40:55D-48(c) (emphasis added). This wording has been interpreted by the Supreme Court to signal that all considerations of the general welfare should be effectuated solely through the municipal ordinances, and that planning boards may only deny a subdivision application where it fails to meet those stated criteria. Pizzo Mantin Group v. Township of Randolph, 137 N.J. 216, 229 (1994). "The functions of a municipal Planning Board are enumerated and legislatively limited. They do not include the resolution of a challenge to the interpretation of an ordinance . . . ." DePetro v. Planning Bd., 367 N.J. Super. 161, 169 (App. Div.), certif. denied, 181 N.J. 544 (2004) (citations omitted).

In this case, the pivotal issue before the Law Division court was the applicability of Manalapan's extant flag lot ordinance, Section 95-7.43B, to Vauxhall's proposal to subdivide a pre-existing flag lot. As the Board's attorney acknowledged to the trial court, the proposed subdivided lots conformed in all other respects with the governing ordinances for the R-R zone. No evidence was presented as to the ordinance's prior administrative interpretation, if any, within the township. Therefore, the trial judge's de novo review of the law's interpretation was appropriate.

Judicial interpretation of an ordinance should be carried out in the same manner as that of a statute. AMN, Inc. of New Jersey v. South Brunswick Rent Leveling Bd., 93 N.J. 518, 524-525 (1983). When interpreting a statute, the first step is to look to the plain meaning of the language. Bergen Commercial Bank v. Sisler, 157 N.J. 188, 202 (1999). "A statute's meaning is not self-evident, however, where varying interpretations of the statute are plausible." Ibid. See also Bubis, supra, 184 N.J. at 626. In those situations, the court should look to "judicial interpretation, rules of construction, or extrinsic matters." Bergen Commercial Bank, supra, 157 N.J. at 202. The purpose of such interpretation is to "effectuate the legislative intent in light of the language used and the objects sought to be achieved." Township of Pennsauken v. Schad, 160 N.J. 156, 170 (1999). If it appears that the drafters did not foresee the situation at hand, the court should interpret the statute "consonant with the probable intent of the draftsman had he anticipated the situation at hand." AMN, Inc., supra, 93 N.J. at 525. Finally, "a statute will not be construed to lead to absurd results." State v. Provenzano, 34 N.J. 318, 322 (1961).

At the time Vauxhall presented its site plan application to the Board, the flag lot ordinance in question, Section 95-7.43B, read:

Flag lots shall be permitted in the R-AG and R-R Zoning Districts only and shall be subject to the following requirements:

A. Flag lots shall only be permitted where the flat lot makes it possible to better utilize irregularly shaped properties or areas with resource limitations, such as wetlands, or to eliminate access to collector or arterial roads.

B. No more than 10% of the lots in a subdivision may be flag lots.

C. Flag lots shall not be permitted whenever their effect is to increase the number of lots taking access to a collector or arterial road.

D. Flag lots shall not be permitted on culs-de-sac except to eliminate access to a collector or arterial road.

E. The access strip to a flag lot shall be at least 25 feet wide and provide a street frontage of at least 25 feet.

F. Each flag lot shall have its own access strip.

G. The area of the access strip shall not be included as part of the lot area for the purpose of meeting minimum lot area requirements.

H. Access strips shall not be more than 600 feet in length and shall be improved in accordance with the requirements of the Township Engineer.

I. Adjoining flag lots shall be prohibited.

[Emphasis added.]

The parties' legal dispute concerns whether the ordinance only covered the creation of new flag lots, or if it also was intended to apply to the subdivision of existing flag lots. The literal terms of the ordinance, as written, do not explicitly address that question.

To aid in the interpretive process, some pertinent history of the flag lot ordinance was presented to the Board. Richard Crammer, the township planner, testified that the flag lot ordinance had been enacted in the 1990s "in response to subdivision application[s] [creating] flag lots on major subdivisions." As Crammer explained, the ten percent limitation "limits flag lot subdivisions to large development trac[t]s." The trial court found that the ordinance

is intended to apply only to subdivisions that propose newly created flaglots. The Board's construction in the application of the ordinance to effectively prohibit the subdivision of an existing flaglot which does not create a new flaglot is[,] in my opinion[,] arbitrary, unreasonable and capricious and not the result intended by the ordinance.

[Emphasis added.]

Even though the word "new" does not appear in the ordinance, from its context and history, we concur with the Law Division judge that this interpretation makes the most sense, and that the gloss on the ordinance advanced by the Board was unreasonable.

First, as has been noted, the proposed subdivision does not result in any new flag lots, but just reduces the size of an existing flag lot. Second, the standards expressed in the ordinance explain what can be done to achieve a flag lot, but do not discuss changes to existing flag lots. Third, none of the identified problems sought to be cured by the ordinance are affected by the subdivision here, as no new traffic will be put onto a "collector or arterial road[]," and the access strip has already been adequately created.

Accordingly, we sustain the trial judge's interpretation of Section 95-7.43B and his reversal of the Board's determination of this legal issue. Vauxhall's application was conforming as a matter of law, and did not require a variance from Section 95-7.43B.

We next address the effect of the township's adoption of a revised flag lot ordinance in November 2006. We reject the Board's contention that the new ordinance must apply to Vauxhall retroactively.

To be sure, a municipality may change its zoning ordinances while an application is pending. "This is so even if the ordinance is amended in direct response to a particular application." Manalapan Realty, L.P. v. Township Committee, 140 N.J. 366, 378-79 (1995). Moreover, under the "time of the decision rule," courts will generally "apply the statute in effect at the time of its decision, at least when the legislature intended that its modification be retroactive to pending cases." Kruvant v. Mayor and Council of Cedar Grove, 82 N.J. 435, 440 (1980).

However, the application of the "time of decision rule" is not unlimited. The rule should not be applied where the municipality has "ignore[d] a court order and interfere[d] with the judicial process." Id. at 442. Further, "[a]pplication of the time-of-decision rule, a rule of retroactivity, is not automatic; a court must take into account equitable considerations, and the outcome depends upon a balance of the equities between the developer on the one hand and the public interest on the other." Eastampton Center, LLC v. Planning Bd., 354 N.J. Super. 171, 197 (App. Div. 2002). See also Pizzo Mantin, supra, 137 N.J. at 235 (finding that "[a] court must balance the municipality's zoning interest against the developer's degree of reliance on the old statute and its entitlements of right").

By way of illustration, we specifically declined to follow the time-of-decision rule in S.T.C. Corp. v. Planning Bd., 194 N.J. Super. 333 (App. Div. 1984). In that case, a zoning amendment was adopted ten months after the applicant's preliminary site plan was denied. The trial judge determined, however, that at the time of the application, the site plan should have been approved. Id. at 335-36. In upholding that determination and applying the New Jersey statutory protections to approved site plans, we specifically declined to apply the new amendment to the zoning ordinance in effect at the time of the court's decision. Ibid. See also Britwood Urban Renewal, L.L.C. v. City of Asbury Park, 376 N.J. Super. 552, 570 (App. Div. 2005) (finding that "once the final site plan application was approved, plaintiff's rights were vested and the [c]ity could not thereafter impose further conditions on that approval").

Here, the Law Division's grant of summary judgment "deem[ed] the applicants' . . . final major subdivision application approved." Nine months later, the township committee passed a new flag lot ordinance, containing a provision that "[f]lag lots shall not be further subdivided," and purporting to make that prohibition retroactive to all matters pending affecting flag lots "before any forum." Thus, the new ordinance was clearly intended to apply to this case.

Under the qualifying principles we have already noted, we decline to impose the new flag lot ordinance on Vauxhall. When the trial judge granted plaintiff "final major subdivision" approval on March 3, 2006, the rights of Vauxhall vested. If the Board had correctly applied the ordinance on the original record, Vauxhall's subdivision would have been approved. Thus, Vauxhall's rights were properly vested under N.J.S.A. 40:55D-52 and could not be affected by changes to the zoning ordinance for two years. It would be fundamentally unfair to have the subsequently-enacted November 2006 ordinance deprive Vauxhall of the fruits of its success in the litigation.

Even so, we do modify the Law Division's ruling in one respect. The Board never passed, in its discretion, upon whether the proposed cul-de-sac should or should not be constructed. The Board reserved decision on that question because it disposed of Vauxhall's application under the flag-lot ordinance. The record reflects that this was a controversial issue, and one on which there are significant environmental and community concerns. Consequently, we remand the matter to the Board on this unresolved issue.

The March 6, 2006 order is affirmed, as modified, and remanded to the Manalapan Planning Board for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

The survey maps presented as exhibits before the Board, as well as the testimony of the township engineer, indicate that the existing frontage onto Beagle Drive is 40.87 feet, not 50.01 feet. We are unsure of the reasons for this discrepancy, but deem it inconsequential.

There is a .02 foot shortfall between the 200 feet in lot width required in the RR zone, and the measured 199.98 foot width of Lot 7.03 and the "flag" portion of Lot 7.02. We regard this deviation as de minimis, and the Board's counsel does not make this an issue.

The March 3, 2006 transcript refers to a "flaglot" as one word instead of two. We leave the transcript's stylistic choice unaltered, even though most authorities tend to refer to a "flat lot" with two words.

We do not treat counsel's statement, however, as a waiver of the Board's function in deciding, if necessary, whether the proposed cul-de-sac should be built or instead should only remain "on paper."

From the context of the record, it seems apparent that Oakland Mills Road, which fronts existing Lot 7.01 and would front proposed Lot 7.02 after subdivision, is a "collector road."

We also note that, pursuant to N.J.S.A. 40:55D-49, "[p]reliminary approval of a major subdivision confers upon the applicant the following rights for a three-year period from the date on which the resolution of preliminary approval is adopted:

a. That the general terms and conditions on which preliminary approval was granted shall not be changed, including but not limited to use requirements; layout and design standards for streets, curbs and sidewalks; lot size; yard dimensions and off-tract improvements; and, in the case of a site plan, any requirements peculiar to site plan approval pursuant to [N.J.S.A.] 40:55D-41; except that nothing herein shall be construed to prevent the municipality from modifying by ordinance such general terms and conditions of preliminary approval as relate to public health and safety[.]" N.J.S.A. 40:55D-49(emphasis added).

Further, "[t]he zoning requirements applicable to the preliminary approval first granted . . . shall not be changed for a period of two years after the date on which the resolution of final approval is adopted[.]" N.J.S.A. 40:55D-52 (emphasis added).

We assume this issue is not moot, notwithstanding the absence in the record of any indication of a stay pending appeal.

(continued)

(continued)

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