FRANK MONTEFORTE v. PLANNING BOARD OF THE BOROUGH OF OCEANPORT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5623-07T15623-07T1

FRANK MONTEFORTE,

Plaintiff-Appellant,

v.

PLANNING BOARD OF THE

BOROUGH OF OCEANPORT,

Defendant-Respondent.

______________________________

 

Argued July 7, 2009 - Decided

Before Judges Grall and Gilroy.

On appeal from the Superior Court of New Jersey, Monmouth County, Law Division, Docket No. L-926-07.

Michael R. Leckstein argued the cause for appellant (Leckstein & Leckstein, LLC, attorneys; Marc A. Leckstein, on the brief).

Pasquale Menna argued the cause for respondent (Menna Supko & Nelson, LLC, attorneys; Mr. Menna, on the brief).

PER CURIAM

Plaintiff Frank Monteforte appeals from the June 13, 2008 order of the Law Division that affirmed the decision of the Planning Board of the Borough of Oceanport (Board) denying an application for a minor subdivision of property known as Block 18, Lots 8, 9 and 10 (the property), Oceanport. We affirm.

Plaintiff is the contract purchaser of Lot 8 and a portion of Lots 9 and 10 designated as new Lot 8.02 on a proposed subdivision drawing prepared by A.J. Gordedo, P.E., of Two River Engineering, dated February 1, 2006. Thomas and Theresa Wenner are the owners of the property. The property is located on the northeast corner of the intersection of Algonquin Avenue and Mohawk Avenue. Lot 10 fronts Algonquin Avenue; Lot 9, located on the corner of the intersection immediately to the west of Lot 10, fronts both Algonquin and Mohawk Avenues; and Lot 8, lying to the rear of Lots 9 and 10, fronts Mohawk Avenue. Additionally, located immediately to the north of Lot 8 is a paper street identified on the tax map as Wyandotte Avenue. Located to the east of Lot 8 is Lot 7, owned by the Borough of Oceanport (Borough). That lot is wooded, unimproved and contains wetlands.

The Wenners purchased Lot 10 in 1982; on that lot is their single-family residence. They purchased Lot 9 in 1984; on that lot is a swimming pool, which services the residence on Lot 10. The Wenners purchased Lot 8 in 1985; although this lot is maintained along with Lots 9 and 10, it is vacant.

The property contains 25,043.92 square feet and is located in the Borough's R-3 residential zone. The R-3 zone requires a minimum lot area of 12,000 square feet for the construction of a single-family dwelling.

In April 2006, plaintiff filed an application for a minor subdivision of the property, together with six bulk variances. Plaintiff proposed to re-subdivide the property into two lots, new Lot 8.01 and new Lot 8.02. The development plan proposed to remove the lot line between Lots 9 and 10; and convey a 5.13 foot-wide strip of land along the northerly portion of Lots 9 and 10 to Lot 8. The remaining portions of Lots 9 and 10 are designated as proposed new Lot 8.01; and the vacant new lot is designated as proposed new Lot 8.02.

Proposed new Lot 8.01 would contain 15,939.86 square feet, and proposed new Lot 8.02 would contain 9,104.06 square feet. In addition to requiring a variance from the minimum lot area requirement for new Lot 8.02, plaintiff sought five other bulk variances: a lot depth variance for proposed Lot 8.01 where 100 feet is required and 94.87 feet was proposed; a lot depth variance for new Lot 8.02 where 100 feet is required and 85.24 feet was proposed; a lot coverage variance for new Lot 8.02 where 25% is permitted and 31.8% was proposed; a front yard setback variance for new Lot 8.01 where 30 feet is required and the existing pool encroaches therein; and a rear yard setback variance for new Lot 8.02 where 25 feet is required and 10.59 feet was proposed.

Following a hearing on September 27, 2006, the Board voted to deny the application. On January 24, 2007, the Board adopted a confirming resolution that included the following determinations:

The applicant's plan advances zoning by proposing a single-family home for the new lot which is favored in the R-3 Zone.

The applicant is taking a conforming large lot and seeks to subdivide same and in the process would create a non-conforming lot in the R-3 Zone that does not meet the neighborhood standards.

The applicant seeks a subdivision for considerations that do not advance sound planning; namely[,] to sell the lot to be subdivided and to permit the construction of a home. In so doing variances from the ordinance requirements would be necessitated. Currently, the applicant Wenner is the owner of three lots that were acquired at different times and merged as a matter of law. There is a current home for Wenner on Lots 9 and 10, which lot also contains a swimming pool and other improvements. Wenner seeks to subdivide[] Lot 8 and transfer same to Monteforte to build another home. If accomplished, the new Wenner lot, or 8.01 will become an irregular trapezoidal lot fronting on Algonquin and Mohawk Avenues while the new lot would front on Mohawk and be triangular in shape. Although the lot area for the applicant's property exceeds the minimum lot area requirements, a substantial part of the property is in an environmentally sensitive area that is prone to water and flooding problems and the within application will not make those problems any less severe and may impact other properties.

The Board believes that the relief sought cannot be granted without substantial detriment to the Zoning Ordinances of the Borough of Oceanport and to the [Municipal Land Use Law] since it would take a conforming lot and create two new lots that would not be conforming to the Zone where the only benefit would be to possibly create a new buildable single[-]family home in the area. The Board further believes that the applicant has not demonstrated a hardship for the granting of the variance relief since the applicant currently has a single-family home on the lot and will continue to have a single-family home if the relief sought by the applicant is not granted.

The Board believes that the applicant has not exhausted his available means of mitigating his request for variances since the neighboring property owner testified that the applicant never offered to purchase any part of his property to reduce the variance request and the applicant never testified that he offered his property or a part of it for sale to the neighbor.

On February 20, 2007, plaintiff filed a complaint in lieu of prerogative writs, challenging the Board's decision as arbitrary, capricious and unreasonable. A bench trial was conducted on the matter on March 25, 2008, after which the court reserved decision. On May 16, 2008, the trial court issued a written opinion, affirming the Board's decision and dismissing the complaint. In so doing, the court reasoned that plaintiff had failed to prove the statutory negative criteria for the grant of a "c" variance whether under subsection c(1) or c(2).

Plaintiff further relies on Green Meadow[s] in proving that he has satisfied the negative criteria for the grant of a c variance. Plaintiff argues that as in Green Meadow[s], [p]laintiff's variance requests are so "trivial" that they can be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and zoning ordinance. However in Green Meadow[s], unlike the instant matter, the lot was conforming in lot area, lot coverage, setbacks and all other aspects of the Township's zoning ordinance and subdivision regulations. Supra, 329 N.J. Super. at 17. Here, the [p]laintiff's application requires a deviation from the Borough's zoning ordinance for minimum lot [area], minimum lot depth for [L]ot 8.01 and 8.02, minimum lot coverage, rear yard setbacks and minimum front yard setbacks. Thus[,] the [p]laintiff's request as compared to that in Green Meadow[s] cannot be considered trivial.

Moreover, the record reveals that there was a great deal of concern regarding flooding. Mr. Schultz an adjacent land owner expressed his concern at the public hearing with regards to flooding and the huge decrease in rear yard setback, as his lot is located to the rear of the [p]laintiff's proposed [L]ot 8.02. The Board members present at the hearing, who were familiar with the drainage issues associated with the Borough of Oceanport, were concerned about the impact such a large home, located upon a wetland and an undersized lot, would have on a flood prone zone.

The Board is required to balance and weigh the extent of the non-conformity and degree of negative impact against the proposed advancement of the zoning scheme. Kaufman v. Planning [Bd.] of Warren Twp.[,] 110 N.J. 551, [564] (1988). They should seek, as the court finds this Board did, ["]to effectuate the goals of the community as expressed through its zoning and planning ordinances." Ibid. In such situations the courts must recognize that local officials who are thoroughly familiar with their community's characteristics and interests are the proper representatives of its people and are undoubtedly the best equipped to handle such an application for variance relief. Lang, [v. Zoning Bd. of Adjustment, 160 N.J. 476, 58 (1999)]. As a result, this court will defer to the discretion of the Board and hold that the [p]laintiff failed to satisfy the requirements for bulk variance relief.

On June 13, 2008, the court entered a confirming order.

On appeal, plaintiff argues that: 1) the trial court misapplied this court's opinion in Green Meadows in affirming the Board's decision; 2) plaintiff should have been granted the bulk variances pursuant to N.J.S.A. 40:55D-70(c)(1) and (2), and the trial court's finding to the contrary are not supported by credible evidence in the record; and 3) the trial court erred in determining that Lot 10 had merged with Lots 8 and 9 pursuant to Chirichello v. Zoning Bd. of Monmouth Beach, 78 N.J. 544 (1979), because plaintiff did not seek subdivision approval under Chirichello, nor did plaintiff raise the issue in the Law Division.

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). Because variances tend to impair sound zoning, a court should give "greater deference to variance denials than to grants of variances." Med. Ctr. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001).

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). Stated differently, the principle of deference is based on "a pragmatic assumption that local boards . . . ordinarily will not grant variances that would be substantially detrimental to neighboring properties or that are incompatible with the zoning plan, nor will they deny variances where the proofs incontestably establish . . . need for variance relief and demonstrate no threat to the neighborhood or zone plan." Lang, supra, 160 N.J. at 58.

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. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004) (citations omitted). The standard of review is the same for both the Law Division and the appellate tribunal. Id. at 562; see also Bressman v. Gash 131 N.J. 517, 528-29 (1993).

The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, authorizes local land use boards to grant bulk or dimensional variances from zoning requirements pursuant to N.J.S.A. 40:55D-70c(1) or (2). Subsection c(1) provides for the grant of a variance on a showing of the positive criteria of undue hardship, that is, proof that the variance is necessary because of: "(a) exceptional narrowness, shallowness or shape of the property; (b) exceptional topographic conditions of physical features uniquely affecting the property; or (c) an exception situation uniquely affecting the property or its lawfully existing structures." Lang, supra, 160 N.J. at 52.

Under the statute, personal hardship of the applicant is not relevant; rather, "the correct focus must be on whether the strict enforcement of the [zoning] ordinance would cause undue hardship because of the unique or exceptional conditions of the specific property." Id. at 53. Nonetheless, the applicant does not have to establish "that without the variance the property would be zoned into inutility." Id. at 54. The applicant only need prove "'that [the] property's unique characteristics imposes a hardship that may inhibit the extent to which the property can be used.'" Id. at 55 (quoting Davis Enterprises v. Karpf, 105 N.J. 476, 493 (1987) (Stein, J., concurring)).

Subsection c(2) of the bulk variance statute provides relief upon a showing of different positive criteria. A c(2) variance allows for a deviation from "certain dimensional requirements when the purposes of the MLUL would be advanced, [and] the benefits of the deviation would substantially outweigh any detriment . . . ." Kaufman, supra, 110 N.J. at 553. "By definition, . . . no c(2) variance should be granted when merely the purposes of the owner will be advanced." Id. at 563. Rather, the local board must consider "the characteristics of the land" and decide whether they "present an opportunity for improved zoning and planning that will benefit the community." Ibid.

Whether an applicant seeks a variance under c(1) or c(2), the applicant must also prove the negative criteria required by the variance statute. The first prong of the negative criteria in N.J.S.A. 40:55D-70d requires the local board to consider whether the variance can be granted without substantial detriment to the public good, and "focuses on the impact the variance will have on the specific adjacent properties affected by the permitted deviations from the ordinance." Lang, supra, 160 N.J. at 57. The second prong of the negative criteria requires consideration whether the variance would impair the intended purpose of the zone plan or zoning ordinance, and "focuses on whether the grant of the variance can be reconciled with the zoning restriction from which the applicant intends to deviate." Ibid.

We have considered plaintiff's arguments in light of the record and applicable law. We are satisfied that the arguments challenging the denial of the subdivision with bulk variances are without merit. With the exception noted infra, we affirm substantially for the reasons expressed by the trial court in its written decision of May 16, 2008. However, we add the following comments.

Plaintiff is correct that a local board may not deny subdivision approval solely because the property is subject to the wetlands regulations. However, as noted by the court, the Board did not deny the application solely for that reason, but rather because of flooding concerns in the area of the property. In addition, plaintiff did not present sufficient proofs to satisfy the negative criteria for the grant of the dimensional variances.

Unlike Green Meadows where all of the lots in the proposed subdivision conformed in minimum lot area, here, even after adding to existing Lot 8, new Lot 8.02 will remain approximately 24% less in size than required by the zoning ordinance. Additionally, the size of the proposed structure to be built on the undersized lot would require a variance from the maximum lot coverage requirement. The Board determined that there would be no zoning benefit to the community, with the only benefit running in favor of the property owner.

Plaintiff argues that the subdivision, if approved, would benefit the community because the owner was willing to convey an easement to the Borough for a sewer line that traverses Lots 8 and 9. While that may result in a monetary benefit to the Borough, it does not present "an opportunity for improved zoning and planning." Kaufman, supra, 110 N.J. at 563. We are satisfied the Board considered the appropriate factors and determined that they weighed against the grant of the variance. We conclude the court properly refrained from interfering with the local board's decision.

However, as indicated supra, we agree with plaintiff that the trial should not have decided the issue of lot merger under Chirichello. The issue of whether plaintiff would require subdivision approval to develop Lot 8 as a freestanding lot along its existing lot lines, after obtaining any and all necessary variances, was not raised on appeal to the Law Division. See State, Office of Employee Relations v. Commc'ns. Workers of Am, 154 N.J. 98, 108-09 (1998) (holding that a reviewing court should not address issues which have not been briefed by the parties). Accordingly, we deem that part of the trial court's decision as dicta, "because it was not necessary to the decision." Jamouneau v. Division of Tax Appeals, 2 N.J. 325, 332 (1949).

 
Affirmed.

Green Meadows at Montvale, LLC v. Planning Board of Montvale, 329 N.J. Super. 12 (App. Div. 2000).

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A-5623-07T1

August 25, 2009