SANDPIPER HOMEOWNERS ASSOCIATION, INC v. PLANNING BOARD OF THE BOROUGH OF KEYPORT and CHERYL HILL -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3722-07T33722-07T3

SANDPIPER HOMEOWNERS'

ASSOCIATION, INC.,

Plaintiff-Appellant,

v.

PLANNING BOARD OF THE

BOROUGH OF KEYPORT and

CHERYL HILL,

Defendants-Respondents.

____________________________

 

Argued January 6, 2009 - Decided

Before Judges Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-494-07.

Kenneth W. Biedzynski argued the cause for appellant (Goldzweig, Green, Eiger & Biedzynski, LLC, attorneys; Mr. Biedzynski, of counsel and on the brief).

Lawrence D. Kantor argued the cause for respondent Cheryl Hill (Kantor & Linderoth, attorneys; Mr. Kantor, of counsel and on the brief).

Menna Supko & Nelson LLC, attorneys for respondent Planning Board of the Borough of Keyport, join in the brief of respondent Cheryl Hill.

PER CURIAM

Plaintiff, the Sandpiper Homeowners' Association, Inc., appeals from the March 25, 2008 order of the Law Division that affirmed the defendant Planning Board of the Borough of Keyport's (Board) grant of a use variance for property known as Block 39, Lots 4 and 5, in Keyport (the property). For reasons that follow, we reverse.

I.

Defendant Cheryl Hill is the owner of the property. The property is located on the northeast corner of the intersection of Short Street and Beers Street and contains 12,725 square feet. Lot 4 fronts Short Street, is occupied by a two-story single-family residence, and is in the Borough's Residential A (RA) zone. Lot 5 fronts Beers Street, is a vacant parcel, and is located in the Residential C (RC) zone. The existing dividing line separating the two lots is also the dividing line for the RA and RC zones. Single-family residences are permitted in both zones; two-family residences are permitted in the RC zone, but prohibited in the RA zone.

The property is surrounded by a mixture of single and multi-family residences. One and two-family homes are located on Short Street and on neighboring Elizabeth and Kearny Streets. Within 200 feet on Beers Street is a row of fifteen attached apartment units. Directly across from the property on Beers Street is the Keyport Legion apartment complex which contains 208 units. Also across from the property on Beers Street is the Sandpiper Condominium as well as the Oyster Creek Condominium.

In October 2004, Hill submitted an application to the Borough seeking a zoning permit allowing her to build a two-family dwelling on the vacant portion of the property. On November 9, 2004, the Borough denied the application, determining that a minor subdivision of the property, together with use and bulk variances, was required. On January 3, 2005, Hill filed a land use application with the Board seeking approval to re-subdivide the property and to construct the two-family structure (the Hill I application). On January 26, 2006, the Board denied the application; on February 23, 2006, the Board adopted a memorializing resolution.

On September 20, 2006, Hill filed a second application seeking to re-subdivide the property into three lots, retain the existing single-family dwelling on one lot, and construct a two-unit townhouse structure on the remaining two lots, with the common wall dividing the townhouses serving as the dividing line between the second and third lots. That line would also conform with the Borough's boundary line dividing the RA and RC zones. In addition to the minor subdivision, Hill sought necessary use and bulk variances (the Hill II application). On November 9, 2006, the Board approved the use variance; on December 21, 2006, the Board adopted a memorializing resolution.

On January 29, 2007, plaintiff filed a complaint in lieu of prerogative writs, seeking to reverse the Board's decision. On January 28, 2008, the court conducted a trial in the matter. On March 25, 2008, the court entered an order, supported by a written opinion of March 5, 2008, affirming the Board's decision.

II-A

The Hill I application.

The first application sought to re-subdivide existing Lots 4 and 5 into proposed new lots 4.01 and 5.01, by relocating the dividing lot line forty feet south of its present location, bringing the common lot line closer to Short Street. Proposed southern Lot 4.01 would contain 5,801 square feet, whereas 7,500 square feet was required under the zoning ordinance at the time of the Board's decision for properties in the RA zone. The existing single-family residence would continue to remain on this lot. Proposed northern Lot 5.01 would contain 6,924 square feet, whereas 7,500 square feet was required under the zoning ordinance for properties in the RC zone.

Hill proposed constructing a two-story, two-family structure on proposed new Lot 5.01 with the zone boundary line cutting through its center. One half of the proposed two-family structure would be in the RC zone, where two-family residences are permitted, and the other half of the structure would be in the RA zone, where two-family residences are prohibited. In addition to a use variance and a variance from the minimum lot area requirements, other bulk variances were required. At the conclusion of the hearing on the application, Hill failed to receive the necessary five affirmative votes for the grant of the use variance, and as such, the Board denied the application. On February 23, 2006, the Board adopted a memorializing resolution.

II-B

The Hill II application.

In September 2006, Hill filed a second land use application, seeking to re-subdivide the property into three lots, instead of two. Specifically, Hill proposed relocating the existing lot line forty feet south, closer to Short Street, and further subdividing the original proposed new Lot 4.02 into two lots, proposed new Lot 4.02 containing 2,984 square feet; proposed Lot 5 containing 3,940 square feet. The existing single-family residence would remain on proposed new Lot 4.01, containing 5,801 square feet. Hill again proposed constructing a two-unit residential structure on proposed new Lot 4.02 and Lot 5, with the RA/RC zone dividing line again running through the middle of the building. However, under this second application, Hill designated the structure as a two-story townhouse divided by a common wall on the proposed new dividing line between proposed new Lot 4.02 and Lot 5, which dividing line would follow the existing zone boundary line.

In addition to the use variance for that portion of the two-unit structure located in the RA zone, Hill sought the following bulk variances: 1) Lot 4.01: for the minimum lot area, where 7,500 square feet is required and 5,801 square feet was provided; for the rear yard setback, where 15 feet is required and 6.8 feet was provided; 2) Lot 4.02: for the minimum lot area, where 7,500 square feet is required and 2,984 square feet was provided; for the minimum lot width where 50 feet is required, and 40 feet was provided; for the side yard setbacks, where a minimum of 6 feet on one side and a combined area of 16 feet on both sides is required, and 0 feet on one side and 15 combined feet on both sides was provided; and from the maximum lot coverage where 30% is permitted, and 31.8% was requested; and 3) Lot 5: for the minimum lot area where 7,500 square feet is required and 3,940 square feet was provided; for the minimum lot width where 75 feet is required and 35 feet was provided; and for the side yard setbacks where 6 feet on one side and a combined 16 feet on both sides is required, and 0 feet on one side and 10 feet combined was provided.

In November 2006, the Board considered the second application. Plaintiff objected on the grounds that the Board was prohibited from considering the application by the doctrine of res judicata, the Board having previously denied Hill I, a similar application. Hill countered that the Hill II application differed from the Hill I application in that under Hill II, she sought to construct three residences on three separate lots. The Board accepted Hill's argument, determining that the Hill II application differed significantly from Hill I, and proceeded to consider the application on its merits.

Mark Teichman, a licensed professional planner and architect, testified on behalf of Hill. He testified that the proposal fulfilled the positive and negative criteria of N.J.S.A. 40:55D-70d. As to the positive criteria, he opined that the property "presents somewhat of a hardship to [Hill]" in that part of it is zoned for multi-family use, and part is limited to single-family structures. Moreover, he believed it would "advance[] the purpose and the intent of zoning in that the proposed project is definitely conjectural with the surrounding area"; and the "site is particularly suited for this use because it can act as a transition between a very massive apartment building and a neighborhood that's one and two[-]family homes."

Concerning the negative criteria, he opined that the proposal would not have a negative impact on the surrounding area, that is, the proposed use would be "very compatible . . . with the character of the neighborhood." In particular, "[t]here will not be any substantial decrease in light, air and open space in the area" and "no dramatic generation of noise or harsh lighting that would be expected from housing of this type."

Plaintiff also called James Daley, a licensed architect, as a witness. Daley testified that if the subdivision was approved, the end result would be a single-family residence on each of the three lots. According to Daley, the proposed new structure "is a two[-]family unit but it has a party wall in the middle . . . . [t]hereby resulting in one residence on each lot." Daley acknowledged, however, that under the Borough's zoning ordinance's definition of "townhouse," the designation on the proposed subdivision map for the new two-unit structure was not correct. In opposition to the application, plaintiff presented Richard Gatto, its business manager. He asserted that Hill had failed to establish the positive and negative criteria required for the relief sought. In particular, he explained that the application "take[s] one conforming lot and creat[es] three non-conforming lots[;]" and that the proposal would cause more of a detriment than a benefit to the community, in that "the property could be developed as another single[-]family home instead of the intense purpose that [Hill] propose[d]."

The Board approved the use variance portion of the application and adopted a confirming resolution accordingly. The resolution provides that the Board considered the testimony of Teichman, Daley and Gatto in reaching its conclusion that the proposal would not negatively impact zoning or the neighborhood, and that "the positive aspects of the plan to provide for housing which is permitted in part of the zone can be accomplished by the grant of the [u]se [v]ariance . . . ."

Plaintiff appealed to the Law Division, alleging that the Board had acted in an arbitrary, capricious and unreasonable manner in approving the application. Plaintiff contended that the Board erred in determining that: 1) the application was not barred by the principle of res judicata; and 2) Hill had established the necessary positive and negative criteria for the grant of the use variance.

On January 28, 2008, the trial court conducted a trial de novo on the appeal. On March 5, 2008, the court issued a written opinion, affirming the Board's decision. In doing so, the court reasoned: "there is sufficient dissimilarity in the relief requested and the proposed application . . . from [Hill I] such that res judicata simply does not apply"; "the granting of the [bulk] variance was particularly within the discretion of the Board specifically due to their peculiar knowledge of the local conditions"; and Hill satisfied the positive and negative criteria "by showing that the proposed development advances a general purpose of zoning." As to the positive criteria, it explained:

The application provide[d] for a lower density use that transitions the high density RC zone and the lower density RA zone. The property itself is located adjacent to a 208 unit [s]enior [c]itizen [a]partment complex and other high density uses in the neighborhood including the objector. Here[,] the proposed application furthers the Master Plan by maintaining, but at the same time lessening, the density in a residential neighborhood. Additionally, the lot as it stands without subdivision is not particularly well[-]suited for a single[-] family home, based primarily on the specific density of the surrounding neighborhood. A multi[-]unit use is the more practical alternative.

Thus, the court held that the Board's actions were not arbitrary, capricious or unreasonable. The court entered a confirming order on March 25, 2008.

On appeal, plaintiff argues: 1) the Board should have barred Hill from proceeding on the application pursuant to the principle of res judicata; 2) the Board's action in granting the application usurped the governing body's zoning authority; and 3) Hill failed to establish the positive and negative criteria for the grant of the variance.

III.

On appeal from a decision of a municipal board on zoning and planning matters, the trial court is limited to determining whether the Board's decision was arbitrary, capricious or unreasonable. Cell South v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002); Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965). A local board's decision is presumed valid and the party challenging the decision has the burden proving otherwise. Cell South, supra, 172 N.J. at 81. In reviewing a local decision, the court must determine whether the board followed the statutory guidelines and properly exercised its discretion. Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990).

The rationale of limited appellate review is that local officials are generally more familiar with their municipality's interests and as "the proper representatives of its people are undoubtedly the best equipped to pass initially on such applications for variance." Kramer, supra, 45 N.J. at 296 (quotations and citation omitted). Yet, "a court is not bound by an agency's determination on a question of law . . . and the court's construction of an ordinance under review is de novo." Fallone Prop., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004) (citations omitted).

Because of the strong legislative policy favoring land use planning by ordinance rather than by variance, the grant of a use variance will always be the exception rather than the rule. Sica v. Bd. of Adjustment, 127 N.J. 152, 156 (1992). This policy is reflected in the statutory language that authorizes the grant of a use variance only in particular cases and for special reasons. Ibid. Consistent with this policy, greater judicial deference is ordinarily given to a zoning board's denial of a variance than to a grant. Med. Ctr. at Princeton v. Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001). Lastly, the standard of review is the same for both the Law Division and the appellate tribunal. Bressman v. Gash, 131 N.J. 517, 528-29 (1993); Fallone Prop., supra, 369 N.J. Super. at 562.

IV.

In Point I, plaintiff argues that the Board "acted arbitrarily, capriciously and unreasonably" in not denying the application pursuant to the doctrine of res judicata. Contrary to the decisions of the Board and trial court, plaintiff contends that Hill I and Hill II were substantially similar, and thus barred by the doctrine. We disagree.

The doctrine of res judicata is applicable to decisions of municipal boards. Stop & Shop Supermarket Co. v. Bd. of Adjustment of Springfield, 162 N.J. 418, 435 (2000). The doctrine "bar[s] a party 'from relitigating a second time that which was previously fairly litigated and finally determined.'" Allied Realty, Ltd. v. Borough of Upper Saddle River, 221 N.J. Super. 407, 415 (App. Div. 1987) (quoting Charlie Brown of Chatham v. Bd. of Adjustment, 202 N.J. Super. 312, 327 (App. Div. 1985)), certif. denied, 110 N.J. 304 (1988). "The general requirements for the invocation of the principle are a final judgment by a court or tribunal of competent jurisdiction, identity of issues, parties [and] cause of action." Charlie Brown, supra, 202 N.J. Super. at 327.

Municipal boards may consider a second application for a variance "if the application contains changes that are 'sufficient.'" Bressman, supra, 131 N.J. at 527 (quoting Russell v. Bd. of Adjustment of Tenafly, 31 N.J. 58, 66 (1959)). Simply put, the burden is on the objector to "show that the second application is substantially similar to the first, both as to the application itself and the circumstances of the property involved." Russell, supra, 31 N.J. at 65. The board has the power "to determine initially the sufficiency of a change[,]" ibid., and its decision "is presumptively valid, and is reversible only if arbitrary, capricious, and unreasonable." In re Convery, 166 N.J. 298, 306 (2001). "Thus, the question is not whether a reviewing court would have reached a different conclusion if it had initially decided the matter, but whether the [p]lanning [b]oard was arbitrary, capricious, or unreasonable in concluding that [the applicant's] second application was sufficiently different to justify considering it on the merits." Bressman, supra, 131 N.J. at 527 (internal citation omitted).

We conclude that the Board and trial court correctly determined that res judicata did not serve as a bar to the Board considering the second application. Hill I sought to relocate the dividing line between Lots 4 and 5 to create two new lots; Hill II proposed a three-lot subdivision. Because the Board's decision in determining the sufficiency of the change must "be liberally construed in favor of the applicant[,]" Russell, supra, 31 N.J. at 66, the Board did not act arbitrary, capricious or unreasonable in considering Hill II on the merits. See id. at 67 (holding a 20% increase in the proposed setback and a 6% decrease in the total area to be occupied on the property from the first to second application sufficient to defeat the doctrine).

V.

In Points II and III, respectively, plaintiff argues that the Board's decision should be reversed because it "usurped the power of the governing body to legislate zoning requirements"; and Hill "failed to establish the positive and negative criteria" to justify variance relief. While we disagree with plaintiff's contention in Point II, we agree that Hill failed to adequately demonstrate the necessary criteria to warrant the grant of the use variance.

Initially, Hill counters that a use variance was not required because the second application was for three single-family residences on three separate lots. We reject that argument for several reasons.

First, the Board determined that a use variance was required, and the trial court affirmed that decision. Because Hill did not cross-appeal from the trial court's order affirming the Board's decision, she is barred from arguing to the contrary as the issue is not properly before us. State v. Elkwisni, 190 N.J. 169, 175 (2007); Walrond v. County of Somerset, 382 N.J. Super. 227, 231 n. 2 (App. Div. 2006).

Second, pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129, "municipalities are authorized to adopt zoning ordinances within the context of their master plans." Cell South, supra, 172 N.J. at 82. Section 25:1-5 of the Borough's zoning ordinance prohibits multi-family structures in the RA zone. As such, the Board found that "the proposed use is not an approved use thereby requiring a [u]se [v]ariance as part of the [a]pplication."

Regardless of whether the entire proposed two-family structure would lie within that portion of the property in the RA zone, or whether only one unit of the structure would physically be in that zone, the building is a two-family structure, and a portion of it would be in a zone where multi-family structures are prohibited. Therefore, the Board did not act arbitrarily, capriciously or unreasonably in determining that a use or "d" variance was required. See Funeral Home Mgmt. v. Basralian, 319 N.J. Super. 200, 207-15 (App. Div. 1999) (discussing the general standard of review to be applied by a local land use board in considering a split-lot use variance application). We now turn to the substantive issue of whether Hill satisfied the necessary criteria for the grant of the use variance.

Use variances are considered under N.J.S.A. 40:55D-70d. Subsection d(1) provides that the Board may, "[i]n particular cases for special reasons, grant a variance to allow departure from regulations . . . to permit . . . a use or principal structure in a district restricted against such use or principal structure . . . ." Section d further provides:

No variance or other relief may be granted under the terms of this section . . . 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.

Thus, "[a]n applicant satisfies the requirements of subsection d when both the 'positive' and 'negative' criteria are met." Cell South, supra, 172 N.J. at 82.

Generally speaking, to satisfy the positive criteria, an applicant must prove that the use promotes the general welfare because the proposed site is particularly suitable to the proposed use. . . . Further, to satisfy the negative criteria, in addition to proving that the variance can be granted without substantial detriment to the public good, an applicant must demonstrate through an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance.

[Ibid. (quoting New Brunswick Cellular Tel. Co. v. Borough of South Plainfield Bd. of Adjustment, 160 N.J. 1, 6 (1999)) (emphasis omitted).]

The standard for establishing special reasons "is contingent on the type of variance at issue." Id. at 83; Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 76 (App. Div. 2006).

Our case law recognizes three categories of circumstances in which the "special reasons" required for a use variance may be found: (1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility . . . ; (2) where the property owner would suffer "undue hardship" if compelled to use the property in conformity with the permitted uses in the zone . . . ; and (3) where the use would serve the general welfare because the proposed site is particularly suitable for the proposed use.

[Ibid. (citations and quotations omitted).]

Particular suitability may be deemed a special reason where three criteria are met: "[w]here . . . the use is one that would fill a need in the general community, where there is no other viable location, and where the property itself is particularly well[-]fitted for the use either in terms of its location, topography or shape." Funeral Home, supra, 319 N.J. Super. at 210 (emphasis added). The test is whether the public benefits because of the community's need for the use itself. Ibid. In a non-inherently beneficial use d(1) case where the applicant seeks the variance based on hardship, he or she "must show that the property has been zoned into inutility, or, at the very least, that it is not reasonably adaptable to a conforming use." Grasso v. Borough of Spring Lake Heights, 375 N.J. Super. 41, 51 (App. Div. 2004).

In addition, in a non-inherently beneficial use case, the applicant must prove the negative criteria by an "enhanced quality of proof." Medici v. BPR Co., 107 N.J. 1, 21 (1987). That is, the applicant must show "that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Ibid. "The applicant's proofs and the Board's findings that the variance will not 'substantially impair the intent and purpose of the zone plan and zoning ordinance,' . . . must reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Ibid.

We conclude that Hill failed to meet the positive criteria under the statute. It is undisputed that the proposed structure is not an inherently beneficial use; therefore, the issue is whether Hill can prove "undue hardship" or that the property is "particularly suitable for the proposed use." Saddle Brook Realty, supra, 388 N.J. Super. at 76.

Because the property is "reasonably adaptable to a conforming use," Hill cannot satisfy the "undue hardship" prong. Grasso, supra, 375 N.J. Super. at 51. Simply put, rather than constructing a two-family dwelling, Hill can construct a second single-family residence on the property. That doing so may be less economical or otherwise beneficial to Hill is of no consequence. Charlie Brown, supra, 202 N.J. Super. at 329 ("Special circumstances are not established by a showing that the proposed use would be more profitable to the owner than the permitted uses.").

Moreover, notwithstanding Teichman's testimony to the contrary, no evidence exists that the property is "particularly suitable" for the proposed two-family structure as that term has been construed by case law. "[A]lthough property may be thought to be particularly suitable for a proposed use because the use fits well with the surrounding area (such as the Board's 'buffer' or transition notion here), that does not equate to special reasons." Funeral Home, supra, 319 N.J. Super. at 209. Rather, for a property to be deemed "particularly suitable," the applicant must meet the aforementioned three-prong test of Funeral Home, including proving that the proposed "use is one that would fill a need in the general community." Id. at 210. Here, the record is devoid of such proofs.

In addition, the Board's conclusion on the suitability of a particular site "must be based on competent expert testimony." Nextel of New York, Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 42 (App. Div. 2003) (citation omitted). "An expert opinion that is not factually supported is a net opinion or mere hypothesis to which no weight need be accorded." See id. at 43 ("Opinions that lack a foundation are worthless. However, if an expert provides the whys and wherefores rather than bare conclusions it is not considered a net opinion.") (citation omitted).

Because Teichman provided mere conclusions as to the property not being well-suited for single-family use, the Board should have rejected his opinion. In light of the lack of evidence of the property's suitability for a two-unit structure and use, we conclude that the Board's decision to grant the use variance because of the property's particular suitability for multi-family use was arbitrary, capricious and unreasonable. Bressman, supra, 131 N.J. at 527; see also Kohl v. Mayor & Council of Fair Lawn, 50 N.J. 268, 275 (1967) ("Variances to allow new nonconforming uses should be granted only sparingly and with great caution since they tend to impair sound zoning.").

Because we conclude that Hill did not prove the positive criteria for the grant of the use variance, we need not address whether she proved the negative criteria by the enhanced burden of proof with the Borough's governing body having only recently increased the minimum lot size for the RA zone.

 
Reversed.

In April 2005, the Borough's Governing Body adopted an amendment to the zoning ordinance increasing the minimum lot size for properties in the RA zone from 5,000 square feet to 7,500 square feet, making the minimum lot size in both the RA and RC zones uniform.

Contrary to Hill's designation on the subdivision plan of the proposed two-unit structure as a "townhouse." the Borough's zoning ordinance defines that term as a structure containing three or more dwelling units, each separated by a vertical on pierced common walls.

The Board's approval was subject to the Board later adopting a resolution approving the minor subdivision and granting site plan approval. We were advised at oral argument that those later approvals were subsequently granted by the Board.

(continued)

(continued)

22

A-3722-07T3

August 17, 2009