FRANK B. KALLOP v. CITY OF LINWOOD PLANNING BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3240-07T13240-07T1

FRANK B. KALLOP,

Plaintiff-Respondent/

Cross-Appellant,

v.

CITY OF LINWOOD PLANNING

BOARD,

Defendant-Appellant/

Cross-Respondent.

_______________________________________

 

Submitted January 13, 2009 - Decided

Before Judges Wefing and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2143-07.

Ford, Flower & Hasbrouck, attorneys for appellant/cross-respondent (Willis F. Flower and Richard M. King, Jr., on the briefs).

Gemmel, Todd & Merenich, attorneys for respondent/cross-appellant (Charles Gemmel, of counsel and on the brief).

PER CURIAM

Defendant City of Linwood Planning Board (Board) appeals from a provision of an order entered by the Law Division on February 6, 2008, which reversed the Board's decision to deny a variance to plaintiff Frank B. Kallop in connection with his application for the subdivision of property identified as Block 106, Lot 1 on the City's tax map. Plaintiff cross-appeals from the provision of the February 6, 2008 order, which upheld the Board's determination that plaintiff was required to obtain a variance for lot depth for his proposed subdivision. For the reasons that follow, we affirm.

We briefly summarize the relevant facts. The property at issue is essentially triangular in shape, with one of its sides fronting upon Wabash Avenue and the other upon Maple Avenue. Plaintiff proposed to subdivide the property and create two irregularly-shaped lots, one of 10,146 square feet, and the other of 11,094 square feet. Plaintiff asserted that, under the City's zoning ordinance, a variance for lot depth was not required. The pertinent provision of the zoning ordinance is Section 277-18 of the City's Code, which defines "lot depth" as "[t]he mean distance between the front and rear lot lines, measured in the general direction of the side lines of the lot."

At the hearing conducted by the Board on May 21, 2007, plaintiff presented testimony from Paul H. Koelling (Koelling), a licensed planner and surveyor. Koelling stated that the definition of "lot depth" in the City's ordinance did not take into consideration irregularly shaped or triangular lots. Koelling reviewed the ordinances in five nearby municipalities and found that, in two of those municipalities, the zoning ordinances had definitions for "lot depth" of triangular-shaped lots. Koelling said that, applying the methodology for determining "lot depth" in those zoning ordinances, the depths of plaintiff's proposed lots were more than the 100 feet required by the City's ordinance. He therefore maintained that a variance for "lot depth" was not required.

The Board's engineer, Robert A. Bruce (Bruce), responded to Koelling's testimony. He testified that the line of the property along Maple Avenue is the front lot line of the property, and the line of the property on Wabash Avenue is the rear lot line. Bruce asserted that, under the City's ordinance, lot depth is measured by the mean distance from the front to the rear lot line. Bruce noted that there is no side yard where Maple Avenue intersects with Wabash Avenue, and the other side lot line is about 140 feet long. Bruce opined that the lot depth for the two lots was the "mean" of the two side distances, which is 70 feet.

The Board accepted Bruce's testimony and unanimously determined that plaintiff required a variance for his proposed subdivision. Plaintiff then presented testimony in support of the variance application. Koelling stated that both lots have frontage on Maple Avenue and there would be no access over the bike path that presently runs along Wabash Avenue. Koelling noted that there is a structure on the property, which is located about four feet from the right of way on Maple Avenue. Therefore, the property presently does not have a twenty-foot setback, as required by the zoning ordinance.

Koelling described the existing structure as "a large barn" that had been used by a sculptor as a studio. He said that the building was "outdated" and did not "fit within the character of the neighborhood." Koelling asserted that, under the City's zoning ordinance, the property was located in a residential zone and its use as a studio was not permitted.

Koelling also stated that, based on the Board's earlier determination, the only variance required for the subdivision was the variance for lot depth. The proposed lots conformed to all of the other requirements under the zoning ordinance, including lot area, frontage, width and setbacks. He said that single-family homes would be constructed on the lots and they would generally be in keeping with the character of the other homes in the neighborhood.

Koelling further detailed the benefits that would result from granting the variance. Koelling said that the subdivision would eliminate the present non-conforming use with its non-conforming front yard setback. He stated that the two lots would be more "in keeping with the zone plan" than a single lot of more than 21,000 square feet. He said that the subdivision would be "an aesthetic enhancement" to the neighborhood. He also stated that he did not see any detriment from a grant of the variance.

Anne Bullen, a resident of the City, testified that, due to its angle, the intersection of Wabash and Maple Avenues presents visibility problems that make it difficult for motorists and cyclists to turn and cross safely. Bullen said that, if the property is subdivided, an additional driveway would be added "to this little small area right before the bike path[.]" Bullen stated that the new driveway could add four additional cars in the area. She also stated that Maple Avenue is "exceptionally narrow" in this area and she had seen "many close calls on this busy strip of road over the . . . [thirteen] years" she has resided in the neighborhood.

The Board voted to deny the variance. In its resolution memorializing that determination, the Board found that plaintiff did not establish that granting the variance would "advance proper zoning purposes, or that the negative criteria will be met." The Board stated that the property was already irregular in shape and granting the variance would "increase that irregularity." The Board found that, instead of one irregularly-shaped lot, there would be two irregularly-shaped lots, "with the constraints on development associated therewith."

The Board added that, in making its decision, it had taken the narrowness of Maple Avenue and the problems associated with the intersection of Maple and Wabash Avenues into account. The Board noted that plaintiff had agreed to construct a ten-foot radius where the bike path on Wabash Avenue joins Maple Avenue in order to "create an appropriate sight triangle to improve traffic circulation." The Board found, however, that the creation of the additional lot with the additional driveway would create a "detriment [that] is not substantially outweighed by any advantages associated with the plan."

The Board also found that removing the existing structure and eliminating the non-conforming use were advantages but stated that the non-conforming setback had not created a substantial problem or difficulty, and the existing non-conforming use would "probably be phased out in due course[.]" The Board found that the advantages from granting the variance were "substantially outweighed" by the creation of the additional lot and construction of another residence "in this congested area[.]"

In addition, the Board found that the proposed subdivision would not bring the lot into conformity with other lots in the immediate area. The Board stated that the lot sizes in the area vary and the lot as presently configured is in keeping with the character of the surrounding area. The Board concluded that plaintiff had not shown that the variance could be granted "without substantial detriment to the public good[.]"

On June 27, 2007, plaintiff filed this action in lieu of prerogative writs in the Law Division, seeking reversal of the Board's decision. Plaintiff argued that the Board erred by finding that a variance for lot depth was required. Plaintiff alternatively maintained that, if a variance was required, the Board acted arbitrarily and unreasonably in denying the variance. The trial court considered the matter on February 5, 2008, and after hearing argument by counsel, placed its decision on the record.

The court upheld the Board's determination that a lot depth variance was required in these circumstances. The court noted that zoning boards are authorized to interpret ordinances when exercising their delegated jurisdiction. The court rejected plaintiff's assertion that the definition of "lot depth" in the City's ordinance was invalid because it lacked sufficient standards to avoid inconsistent or arbitrary interpretations and applications. The court stated that:

plaintiff has not carried the heavy burden of overcoming the presumption of validity that is afforded to Section 277-18. First it is important to note that no legislation accounts perfectly for every conceivable scenario in which it will be applied. Indeed even by plaintiff's account only two of the five ordinances discussed by plaintiff specifically address irregularly shaped lots. Bruce's interpretation of lot depth . . . and his method of calculating lot depth which were accepted by the [B]oard are reasonable and consistent with the ordinance. Although plaintiff presents some unsupported conjecture there is no evidence in the record that the ordinance has been applied arbitrarily or inconsistently in the past.

The court determined, however, that the Board had acted arbitrarily, capriciously and unreasonably by denying plaintiff's variance request. The court found that the Board erred by finding that the detriments from granting the variance outweighed the benefits therefrom.

The court noted that the proposed subdivision would eliminate the non-conforming use and the non-conforming front-yard setback. The court also noted that both lots created by the subdivision would conform to the ordinance's lot size requirement. The court found that single-family residences would replace the single structure on the site and "would be more consistent with other structures in the neighborhood."
The court additionally observed that the Board had "focused heavily" on the effects the subdivision would have on traffic in the area, but failed to consider the fact that

plaintiff [had] proposed to make improvements that would address the very concerns of the board and . . . the one public participant at the hearing. Plaintiff offered to create a [ten] foot radius at the intersection of Maple and Wabash Avenues to improve visibility, one of the principal concerns of those opposed to the application. Plaintiff also offered to extend sidewalks and curbing to improve conditions on Maple Avenue. Thus, plaintiff's application would help address already existing problems around Block 106 and the relief plaintiff seeks, a lot depth variance, has no bearing on traffic and density. Minimum lot area requirements address density and traffic that would result and plaintiff's proposed subdivision complies with the ordinance's area requirements.

The court therefore reversed the Board's denial of the variance request. The judge ordered that the application be granted subject to the traffic improvements that were proposed by plaintiff. The court entered an order dated February 6, 2008, which memorialized its decisions. The Township's appeal and plaintiff's cross-appeal followed.

The Board argues that the trial court failed to adhere to the applicable standard of review and improperly substituted its judgment for that of the Board. In its cross-appeal, plaintiff argues that the trial court erred by determining that a variance was required because the definition of "lot depth" in the ordinance is void for vagueness or, as "reasonably interpreted," does not require a variance.

Based upon our thorough review of the record, we conclude that the Board properly determined that plaintiff required a variance for lot depth but had acted arbitrarily, capriciously and unreasonably in denying that variance. We therefore affirm the trial court's February 6, 2008 order substantially for the reasons stated by the court in the decision that it placed on the record. R. 2:11-3(e)(1)(E). We add the following brief comments.

Like the trial court, we find no merit in plaintiff's contention that the Board erred by finding that plaintiff required a variance for lot depth. A municipal zoning ordinance is entitled to a presumption of validity and the party challenging the ordinance has the burden of overcoming that presumption. Damurjian v. Bd. of Adj. of Twp. of Colts Neck, 299 N.J. Super. 84, 93 (App. Div. 1997) (citing Riggs v. Long Beach Twp., 109 N.J. 601, 610-11 (1988)). Among other things, the ordinance "must meet the 'test of certainty and definiteness.'" Id. at 95 (quoting Morristown Road Assocs. v. Mayor of Bernardsville, 163 N.J. Super. 58, 67 (Law Div. 1978)). The ordinance must provide sufficiently clear standards "to prevent arbitrary and indiscriminate interpretation or application by local officials[.]" Ibid. (quoting Lionshead Woods Corp. v. Kaplan Bros., 250 N.J. Super. 545, 548-51 (Law Div. 1991)).

In our judgment, the definition of "lot depth" in the City's ordinance is sufficiently certain and definite to guide the City's officials in its interpretation and application. The ordinance states that "lot depth" is the "[t]he mean distance between the front and rear lot lines, measured in the general direction of the side lines of the lot." The ordinance does not detail the manner in which this definition is to be applied to irregularly-shaped lots; however, Bruce's explanation and application of the definition of "lot depth" to the lots at issue in this matter were reasonable. Moreover, there is no evidence indicating that the City has in the past inconsistently or arbitrarily applied this definition.

We also find no merit in the Board's argument that the court erred by reversing its decision to deny plaintiff's variance request. "When we consider an appeal of a trial court's review of a municipal board's action, we are bound by the same standard as the trial court." Cohen v. Borough of Rumson, 396 N.J. Super. 608, 614-15 (App. Div. 2007) (citing New York SMSA, Ltd. P'ship v. Bd. of Adj., Twp of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004)). "We give deference to a municipal board's decision, and such decisions should be overturned only when proven arbitrary, capricious or unreasonable." Id. at 615 (citing New York SMSA, supra, 370 N.J. Super. at 331). Furthermore, "'[b]ecause variances should be granted sparingly and with great caution, courts must give greater deference to a variance denial than to a grant.'" Ibid. (quoting New York SMSA, supra, 370 N.J. Super. at 331). In reviewing a decision to grant or deny a variance, we must determine whether the municipal board "'could reasonably have reached its decision on the record.'" Ibid. (quoting Jock v. Zoning Bd. of Adj., Twp. of Wall, 184 N.J. 562, 597 (2005)).

Here, plaintiff sought the lot depth variance pursuant to N.J.S.A. 40:55D-70(c)(1), which requires plaintiff to show that, due to the unique shape of the property, strict application of the zoning ordinance will "result in peculiar and exceptional practical difficulties" or "exceptional and undue hardship." Ibid. Plaintiff also must establish the so-called "negative criteria," specifically that the variance "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).

As the trial court observed, the Board believed that plaintiff's proposed subdivision will be substantially detrimental to the public good and the City's zone plan because of the narrowness of Maple Avenue and the visibility problems for pedestrians and motorists at the intersection of Maple and Wabash Avenues. However, the trial court noted that plaintiff had proposed several improvements to address those concerns. The trial court also observed that the Board erred by failing to give sufficient weight to the many advantages of the subdivision, including the elimination of the non-conforming use, the non-conforming setback, and the creation of single-family dwellings that are in keeping with the character of the community. In short, instead of establishing that the detriments of the variance outweighed the advantages from granting that relief, the record established the opposite.

Thus, contrary to the Board's arguments, this is not a case where the trial court improperly substituted its judgment for the Board. Rather, this is a case where the trial court correctly determined that the Board made a decision that could not reasonably be reached on the evidence. Cohen, supra, 396 N.J. Super. at 615 (citing Jock, supra, 184 N.J. at 597).

We therefore are satisfied that the trial court correctly applied the applicable standard of review and the record supports its determination that the Board's denial of the variance was arbitrary, capricious and unreasonable.

Affirmed.

 

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A-3240-07T1

February 10, 2009