MARK HENDERSON v. PLANNING BOARD OF THE TOWNSHIP OF SOUTHAMPTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2783-97T22783-07T2

MARK HENDERSON and

TERESA HENDERSON,

Plaintiffs-Respondents,

v.

PLANNING BOARD OF THE

TOWNSHIP OF SOUTHAMPTON,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 22, 2008 - Decided

Before Judges Cuff and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2033-07.

Peter C. Lange, Jr., attorney for appellant.

Ballard Spahr Andrews & Ingersoll, LLP, attorneys for respondents (Tracy A. Siebold, of counsel and on the brief).

PER CURIAM

Defendant, Southampton Township Planning Board (Board), appeals from a December 26, 2007 Law Division order that reversed the Board's denial of plaintiffs' application for an agricultural subdivision. On appeal, the Board argues that the trial court improperly concluded that the Board's decision was arbitrary, capricious and unreasonable. We disagree and affirm substantially for the reasons expressed by Judge Sweeney in his comprehensive and well-reasoned oral opinion of December 17, 2007.

I.

Plaintiffs, Mark and Teresa Henderson, are the owners of thirty-three acres of land located on Eayrestown Road in Southampton Township (the property), which they purchased in 2002. They have been using the land ever since as a working farm dedicated to raising horses and growing hay. The property is in a rural residential zone, known as the RR district, which authorizes farm operations and single-family dwellings on the property. The property has been assessed as farmland for property tax purposes since 1995.

In an effort to combat rising costs, plaintiffs submitted an application for minor subdivision approval to the Board in the spring of 2004. Plaintiffs sought to create two additional farming lots with one dwelling unit on each lot. Plaintiffs currently reside in the one residential structure located on the thirty-three acre tract. Although the record is not entirely clear, we gather that the 2004 application was the subject of a number of hearings; however, before any decision was reached on the 2004 application, plaintiffs withdrew it. On December 19, 2006, the same day plaintiffs withdrew the 2004 application, they submitted the agricultural subdivision application that is the subject of this appeal.

Plaintiffs' application for an agricultural subdivision was heard by the Board on May 8, 2007. Plaintiff testified that the purpose of his agricultural subdivision request was "to add two more farms to [the existing property] and bring more horse people into the community." He explained that he might "eventually . . . get to a point where [he did not] want to farm them anymore," and at that point he would sell the lots.

In response to a question from the Board solicitor, plaintiff explained that there was no difference between the 2004 application and the instant application because "we originally filed the application to create three farms in the normal course. So we have not changed the use or the intent from the very beginning." When asked whether he contemplated adding a residence to the two new lots, plaintiff answered, "When I do that, if I do that, it might be twenty years from now when I retire, it . . . might be giving it to my children. That determination . . . [is] long range . . . ." He explained that if a residence were ultimately to be added to the two new lots, such residential use would be "subordinate or incidental to the agricultural activity." Through his attorney, plaintiff offered to deed-restrict the three parcels to agricultural use provided that the option of erecting one house on each lot was preserved. He explained if the agricultural subdivision were approved, each lot would be a minimum of five acres and no new roads would be built.

Addressing plaintiff, the Board solicitor commented "there's no secret, the Board is going to be concerned, Mr. Henderson, that you're trying to get through the back door what you can't get through the front door. I mean, it's as simple as that." He continued, "the obstacles that you were confronted with in the subdivision ordinance have caused you to process this as an agricultural subdivision, when your real intention is to create buildable lots. Which I think you essentially indicated is your intention, although when that development will occur is undetermined." In response to a Board member's question, the solicitor advised the members that in deciding whether to approve the requested agricultural subdivision, "you should be on guard for a sham, something being submitted to you as a way to circumvent a subdivision ordinance."

The only witness before the Board was plaintiff himself. There was no opposition from any member of the public. During the discussion period, one member commented that "the intent here is not for agricultural." Another member opined that approval of the application would "essentially pave the path for non-conforming lots at a later date." A third member observed that "now we're finding out that it may not just be barns and it might not just be for horses but also a residence. And I'm just very, very uncomfortable with that."

At the end of the hearing, a member moved to deny plaintiffs' agricultural subdivision request. None of the members added any comments to the reasons we have already described, other than one member who urged the Board not to "disregard [plaintiffs'] earlier plans as if they never existed." The motion to deny plaintiffs' request passed by a vote of seven to zero. The June 7, 2007 resolution memorializing that decision provided in relevant part:

Based upon the foregoing, the [Board] finds that the application does not meet all of the requirements necessary to approve an "agricultural subdivision" and, therefore, [the Board] denies approval of the application as an agricultural subdivision. Specifically, the Board finds that the overall intent and purpose of the application is for proposed future development and not for agricultural purposes.

The Board finds that the lots are proposed and understood by the applicant to be created for the development of "horse farms." The Board further finds that the proposed horse farms, as detailed by the applicant, are primarily single family residences where any agricultural purpose would be incidental and subordinate to the proposed residential use of the property. As such, the Board finds that it is appropriate for the proposed subdivision to be reviewed under the minor subdivision regulations of the Southampton Township Development Ordinances.

On July 20, 2007, plaintiffs filed a complaint in lieu of prerogative writs challenging the Board's denial of their application. A few months later, they moved for summary judgment. At the beginning of his oral ruling, Judge Sweeney observed that a court reviewing a planning board decision is obliged to uphold Board action unless such action was arbitrary, capricious or unreasonable. He also recognized that the Board's grant or denial of an application is presumed to be valid and the burden of proving otherwise is upon the party challenging the Board's action. The judge then made the following findings:

I specifically [have] highlighted that factual determinations are presumed to be valid. In this case, there are no facts in evidence in the record to support the Board's conclusion. No facts.

The prior application was a valid application but it was withdrawn and for whatever reasons it was withdrawn, it was withdrawn. This application stands or falls on its own merits and the Board is bound by . . . [the] clear and unambiguous standard set forth in the legislation . . . .

. . . .

It is totally unfair on the part of the Board to assume that because a house might be built and I use the word, might, because there is no proposal, might be built to accommodate the owners in their pursuit of horse farming which the owner of the property, the applicant, says is and has been his intention for the entire time and I think that's further buttressed by the fact that he did not hesitate through his counsel to offer to deed restrict this property to agricultural purposes.

. . . .

No Board is permitted to simply speculate what a person might do if that person makes a proposal that complies with the law in every respect . . . .

Here, the Board found that the proposed horse farms as detailed by the applicant are primarily single-family residences where any agricultural purposes would be simply incidental or subordinate to the proposed residential use of the property. That conclusion . . . is not based on any evidence in the record and the resolution and the decision of the Board must be based upon substantial, credible evidence in the record.

. . . [W]hat the Board did was get into the mind of the applicant and found that . . . what he said was simply not true. . . .

. . . .

This property has been farmland assessed for 12 years and . . . it's undisputed that presently over two-thirds of the land is currently used for agricultural purposes. . . .

Even though the plaintiff testified that he may one day choose to sell off these additional two lots or distribute them to family members, the fact that residential units might be placed on them, is not enough for the Board to simply grab hold of and use to negate what otherwise is the clear and dominant agricultural purpose intended by the proposed subdivision.

. . . .

Not based on any evidence in the record . . . the Board members here chose simply to speculate about what this man testified he was going to do and believed that he was going to do something else.

I'm satisfied that it's arbitrary, capricious, and unreasonable. . . . [T]he agricultural subdivision will be allowed.

Judge Sweeney then entered a final order on December 26, 2007, reversing the Board's denial of plaintiffs' application and granting plaintiff's request for an agricultural subdivision. The Board appealed.

II.

When presented with a challenge to a decision of a planning board, we apply the same standard as the trial court. We give deference to the Board's broad discretion and reverse only if the Board's action was arbitrary, capricious or unreasonable. Cell S. of N.J., Inc. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81 (2002). "The law presumes that boards . . . will act fairly and with proper motives and for valid reasons. . . ." Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296 (1968).

A subdivision is "the division of a lot, tract or parcel of land into two or more lands, tracts, parcels or other division of land for sale or development." N.J.S.A. 40:55D-7. However, a proposal is not considered a subdivision under the relevant portion of the Municipal Land Use Law, and an applicant is not required to satisfy site plan requirements applicable to minor subdivision requests if: (1) no new streets are created; (2) the lots created are five acres or larger in size; and (3) the proposed new lots are found by the Board to be for agricultural purposes. N.J.S.A. 40:55D-7. The relevant portion of N.J.S.A. 40:55D-7 provides:

The following shall not be considered subdivisions within the meaning of this act, if no new streets are created: (1) divisions of land found by the planning board or subdivision committee thereof appointed by the chairman to be for agricultural purposes where all resulting parcels are 5 acres or larger in size . . . .

Once those three criteria are satisfied, a Board lacks authority to deny the request for an agricultural subdivision. Dilts v. Franklin Twp. Planning Bd., 272 N.J. Super. 234, 237 (App. Div. 1994).

The subdivision application that plaintiffs submitted to the Board proposed sub-dividing their property into three lots, which were 6.13 acres, 18.05 acres, and 8.75 acres. Therefore, all three proposed lots exceeded five acres. In addition, the unrefuted testimony established that the subdivision would not create any new streets or roads. Accordingly, plaintiffs' agricultural subdivision application satisfied all of the requirements of N.J.S.A. 40:55D-7 as long as plaintiffs were able to demonstrate that the land would be used for agricultural purposes. It is that element the Board disputes.

The Board points to plaintiffs' 2004 application for a minor subdivision and asserts that "the applicant informed the [B]oard that his [2006] application for development should now be viewed as an agricultural subdivision because of his naked assertion to that affect." The Board also argues, as its solicitor intimated during the May 7, 2007 hearing, that the application was a sham, and the agricultural purpose a ruse; designed to circumvent the more demanding requirements applicable to minor subdivisions. Under this reasoning, the Board argues that its conclusion to deny plaintiffs' application was sustained by the record, was entitled to deference, and Judge Sweeney's decision should be reversed. We disagree.

The undisputed evidence in the record demonstrates that plaintiffs currently use all of their land, with the exception of the wetlands portion, for agricultural purposes. First, for almost six years, plaintiffs have been operating a horse farm where they have four horses and grow and sell hay. Second, the property has been tax-assessed as farmland since 1995. Third, plaintiff testified that once the property is subdivided, he intends to farm the property for the same agricultural purposes for which he has been using it for nearly six years. Fourth, even though plaintiff acknowledged that at some point in the future he might sell some or all of the lots, he intends to preserve the agricultural use of the land. His sincerity on this latter point is demonstrated by his willingness to accept a deed restriction that would preserve the land for agricultural purposes in perpetuity.

Notwithstanding that undisputed testimony, the Board focused almost entirely on plaintiff's testimony that he and his wife contemplated, at some point, the possibility of erecting a home one each of the two proposed new lots. We conclude that such concern is woefully inadequate to support the Board's conclusion that plaintiffs' proposed subdivision was not for agricultural purposes. That a farmer may choose to live on his farm does not convert what is an otherwise agricultural purpose into a residential use.

Moreover, nothing in N.J.S.A. 40:55D-7 or the Southampton zoning ordinance authorizes the Board to deny an agricultural subdivision application merely because a residence might be erected. N.J.S.A. 40:55D-7 requires only that the subdivision be for agricultural purposes. Nothing in the record before the Board supported its conclusion that the primary purpose of the requested agricultural subdivision was anything other than that. We agree with Judge Sweeney's conclusion that "the fact that residential units might be placed on [the proposed sub-divided lots] is not enough for the Board . . . to negate what otherwise is the clear and dominant agricultural purpose intended by the proposed subdivision." The Board's conclusion that possible construction of residences on the lots at some point in the distant future justifies the denial of the application constitutes an arbitrary, capricious and unreasonable action because it shows "'willful and unreasoning action, without consideration and in disregard of [plaintiffs' actual agricultural] circumstances.'" Avalon Manor Improvement Ass'n, Inc. v. Twp. of Middle, 370 N.J. Super. 73, 91 (App. Div.), (citation omitted) certif. denied, 182 N.J. 143 (2004). Under those circumstances, the Board's action is not entitled to our deference. Ibid.

 
Plaintiffs have overcome the presumption of validity that the Court held is due to local boards. See Kramer, supra, 45 N.J. at 296. Where, as here, "the evidence 'is so one-sided that must party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (internal citation omitted). Where there is only one "unavoidable resolution of the alleged disputed issue of fact," the moving party is entitled to judgment as a matter of law. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 440 (2007). That is the case here.

Affirmed.

All references to plaintiff in this opinion shall signify Mark Henderson unless specified otherwise.

Plaintiffs farm all but ten acres, which are wetlands not suitable for farming.

Plaintiffs were not required to advertise their application for an agricultural subdivision in the same fashion they would have been required had they been seeking minor subdivision approval.

Although the Board member did not elaborate upon why the proposed lots would be "non-conforming," we surmise the member was referring to N.J.S.A. 40:55D-35, which requires all buildings to be erected on lots that abut a public street. The Board never discussed this issue further or included it in its resolution.

Persons applying for minor subdivision approval must submit minor subdivision plots, N.J.S.A. 40:55D-37, and obtain a variety of municipal engineering and other approvals before minor subdivision approval is granted. See Southampton Township Land Development Ordinance, Ch. 12 4.8(b) and 10.2(b).

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A-2783-07T2

November 17, 2008