VLADIMIR DELEVI v. THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MARLBORO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2744-08T32744-08T3

VLADIMIR DELEVI,

Plaintiff-Appellant,

v.

THE ZONING BOARD OF ADJUSTMENT OF

THE TOWNSHIP OF MARLBORO,

Defendant-Respondent.

___________________________________

 

Argued January 5, 2010 - Decided

Before Judges Fuentes, Gilroy and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2246-08.

Peter H. Klouser argued the cause for appellant (Heilbrunn, Pape & Goldstein, LLC, attorneys; Kenneth L. Pape, of counsel; Jeffrey Zajac, on the brief).

Michael B. Steib argued the cause for respondent.

PER CURIAM

Plaintiff Vladimir DeLevi appeals from the December 22, 2008 order of the Law Division that affirmed the decision of the defendant Zoning Board of Adjustment of the Township of Marlboro's (the Board) denial of his application seeking bulk variances to construct a single-family dwelling on property known as Block 282, Lot 6 (the property), Marlboro Township. We affirm.

The property, located in the R-60 residential zone, is a vacant, triangular-shaped lot with approximately 785.3 feet of frontage along the southerly side of Hawkins Corner Road. The easterly side of the property is 124.48 feet in length, and the southerly side, which forms the municipal boundary between Marlboro Township and Manalapan Township, is 783.64 feet in length. Those adjoining properties are residential in character. The lot located directly across Hawkins Corner Road is owned and maintained by the Township of Marlboro for recreational and open space uses.

Previously, a predecessor in title to the property also owned vacant contiguous land along the property's southerly boundary in Manalapan Township. The predecessor subdivided the Manalapan Township land, but had not included the property as part of the subdivision, leaving the property as a separate, undersized, irregularly-shaped lot.

In 2005, the Estate of Benjamin Wiesenfeld, plaintiff's immediate predecessor in title, applied to the Board seeking approval of bulk variances to construct a single-family dwelling in excess of 3,000 square feet upon the property. The estate sought four bulk variances: 1) a variance from the minimum lot area requirement where 60,000 square feet is required, and only 48,671 square feet was proposed; 2) a variance from the lot depth requirement where 225 feet is required, and only 64.24 feet was proposed; 3) a variance from the front yard setback requirement where 50 feet is required, and only 30 feet was proposed; and 4) a variance from the rear yard setback requirement where 50 feet is required, and only 37.15 feet was proposed. On March 21, 2006, the Board denied the estate's application, determining, among other things that, although the lot is of an unusual shape and is extremely shallow, any hardship concerning development of the property had been created by the applicant's predecessor in title. Additionally, the Board determined that the estate had failed to demonstrate adequate efforts to bring the property into conformance with the zoning ordinance requirements, either by acquiring adjacent property or by offering the property for sale to adjacent owners. The estate did not appeal the denial of the variance application.

On an unknown date subsequent to the Board's denial of the estate's variance application, plaintiff purchased the property subject to the same zoning requirements that were in existence at the time of the prior application. On January 7, 2008, plaintiff filed an application with the Board seeking bulk variances to construct a 3,020 square-foot single-family dwelling with an oval driveway and a side-entry, three-car garage. Under the application, plaintiff sought five bulk variances: 1) a variance from the minimum lot area requirement where 60,000 square feet is required, and only 48,671 square feet was proposed; 2) a variance from the lot depth requirement where 225 feet is required, and only 64.24 feet was proposed; 3) a variance from the front yard setback requirement where 50 feet is required, and only 34.31 feet was proposed; 4) a variance from the side yard setback requirement where 50 feet is required, and only 47.55 feet was proposed; and 5) a variance from the rear yard setback requirement where 50 feet is required, and only 35.24 feet was proposed.

On April 1, 2008, the Board held a hearing to consider the application. At that hearing, plaintiff presented testimony from Robert Freud, a professional engineer; and Allison Coffin, a professional planner. Freud testified concerning the location of the prospective dwelling upon the property, site distances along Hawkins Corner Road, and surface water draining issues. Coffin testified that construction of a single-family dwelling upon the property would be consistent with surrounding uses. She also testified that the unique shape and exceptional shallowness of the property was a basis for granting a hardship c(1) variance, and that the construction of a single-family dwelling would advance the general purposes of the Municipal Land Use Law (MLUL) by furthering appropriate population densities and desirable visual environment through creative development techniques. Lastly, Coffin opined that the negative criteria for granting the variances would be satisfied because the proposed use is permitted, and the construction of the dwelling would enhance the surrounding neighborhood.

At the hearing, plaintiff's counsel advised the Board that his client had negotiated to acquire a twenty-foot-wide utility easement from an adjacent property owner in Marlboro Township, and if the Board approved the variance application, plaintiff would then proceed with the necessary re-subdivision of the two properties, adding the twenty-foot-wide easement to his property. Louis Pannone, owner of one contiguous property in Manalapan Township who had previously expressed an interest in purchasing the property from the Estate of Wiesenfeld, also appeared and testified that he still had an interest in purchasing the property at the $15,000 price paid by plaintiff. Plaintiff did not pursue Pannone's offer to purchase the property.

At the conclusion of the hearing, the Board denied the application. On April 16, 2008, the Board adopted a memorializing resolution, finding, among other things, that:

1) the testimony of plaintiff's experts was not persuasive concerning satisfaction of the positive and negative criteria for the grant of the variances pursuant to N.J.S.A. 40:55D-70(c)(1) or (c)(2);

2) any hardship that may exist concerning development of the property had been created by one of plaintiff's predecessors in title;

3) plaintiff had failed to adequately demonstrate reasonable efforts to conform the property with the zoning ordinance by either acquiring adjacent property or by offering the property for sale to adjacent property owners;

4) the proposed dwelling was "too large for the subject property," that is, plaintiff "[r]ather than proposing a modest sized structure for this undersized lot with egregious setback deficiencies[,] . . . proposed a[] large residence the impacts of which will be overpowering considering the extent of the deficiencies";

5) "the grant of the requested variances would violate traditional zoning purposes such as light, air and open space and would have adverse impacts upon the streetscape and upon the surrounding properties";

6) "the substantial deficiencies in front, side and rear yard setbacks would be inconsistent with the neighborhood scheme and would result in a substantial detriment to the public good, the Zone Plan, and the Zoning Ordinance"; and

7) "the application . . . is not substantially different from that which the Board previously acted upon In the Matter of the Estate of Wiesenfeld, ZB No. 05-6208."

On May 12, 2008, plaintiff filed a complaint in lieu of prerogative writs, challenging the Board's decision as arbitrary, capricious and unreasonable. The parties argued the matter to the court on October 14, 2008. On December 22, 2008, Judge Lawson entered an order, supported by a twenty-two page written opinion of October 15, 2008, affirming the Board's decision and dismissing the complaint.

In deciding the matter, Judge Lawson affirmed the Board's findings that: plaintiff had failed to demonstrate the necessary positive criteria for the grant of either an N.J.S.A. 40:55D-70c(1) or c(2) variance; plaintiff had failed to satisfy the negative criteria for the grant of either type of variance; and plaintiff's application was barred by the doctrine of res judicata. In concluding that plaintiff had failed to prove the necessary, positive criteria for a c(1) hardship variance, Judge Lawson determined that plaintiff's application fell "within the purview of the self-created hardship" because when plaintiff's predecessor subdivided the adjoining lands in Manalapan Township, he never sought to include the property as part of the adjoining major subdivision, citing Ketcherick v. Bor. of Mountain Lakes Bd. of Adjustment, 256 N.J. Super. 647, 652 (App. Div. 1992).

Additionally, Judge Lawson determined that plaintiff had failed to meet "his burden by demonstrating attempts to purchase property from an adjoining landowner or attempts to sell his property for a 'fair and reasonable price' to an adjoining owner," quoting Dallmeyer v. Lacey Twp Bd. of Adjustment, 219 N.J. Super. 134, 139-40 (Law Div. 1987). In so determining, Judge Lawson stated:

In addition, Plaintiff cannot show the positive criteria, because he did not present sufficient evidence to show an attempt to bring his property into compliance with the zoning regulations. There is no evidence of an attempt to sell his nonconforming property to willing adjoining landowners. However, there is evidence that adjoining landowners may have been interested in purchasing the property. During the Board's April 1, 2008 hearing, an adjoining landowner testified that he would have been willing to pay the purchase price paid by the Plaintiff for the property.

Plaintiff argues that he did attempt to make his property conforming. His attorney, Mr. Pape, informed the Board during the hearing that he had an agreement to purchase adjoining land, but no written confirmation of this agreement appears in the record. At oral argument Mr. Pape again mentioned the details of this agreement, yet no formal contract has been given to this court. Consequently, Plaintiff failed to provide sufficient evidence to show positive criteria.

As to his affirmance of the Board's finding that plaintiff had failed to prove the necessary criteria for the grant of a c(2) variance, Judge Lawson reasoned:

Plaintiff contends that he is entitled to relief under N.J.S.A. 40:55D-70c(2), because the variance relief would advance two purposes of the Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-2(g) and (i). Plaintiff's expert planner testified that the variances would provide sufficient space for a residential use. Also, the expert testified that the proposed variances would promote a visual environment. The Board, on the other hand, argues that the variances do not promote the purposes of the MLUL, but only promote Plaintiff's interests. Once more the Board found that Plaintiff's expert did not provide sufficient evidence as to how the proposed variances promoted the MLUL.

In order for the variance relief to be granted pursuant to N.J.S.A. 49:55D-70c(2) the applicant must show that "the purposes of the MLUL would be advanced, the benefits of the deviation would substantially outweigh any detriment, and the relief can be granted without substantial detriment to the public good and without substantial impairment of the zone plan." Kaufman v. Planning Bd. for the Twp. of Warren, 110 N.J. 551, 553 (1988). Boards should not grant a c(2) variance "when merely the purposes of the owner will be advanced." Id. at 563. Consequently, c(2) variances also require proof of negative criteria. Bressman v. Gash, 131 N.J. 517, 523 (1993). The grant of a c(2) variance "'must be rooted in the purposes of zoning and planning itself and must advance the purposes of the [MLUL].'" Green Meadows at Montville, L.L.C. v. Planning Bd. of the Twp. of Montville, 329 N.J. Super. 12, 22 (App. Div. 2000) ([quoting] Kaufmann, supra, 110 N.J. at 562). "Thus, the focus in a c(2) case is not whether the current zoning ordinance creates a 'hardship' on the owner warranting a relaxation of the standard, but 'on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community.'" Green Meadows, supra, 329 N.J. Super. at 22 ([quoting] Kaufmann, supra, 110 N.J. at 562).

The Plaintiff did not provide sufficient evidence in the record below to show how the proposed variances would promote the purposes of the MLUL. Plaintiff's expert simply testified that the requested relief would provide for sufficient space for a residence. In addition, the Board found that the proposed size of the single[-]family home is too large compared to the homes in the surrounding neighborhood; therefore the detriment to the surrounding community outweighs the benefits. Furthermore, the Board also found that the Plaintiff failed to satisfy the negative criteria for the same reasons as the denial of the c(1) variance. The Board concluded that the Plaintiff did not meet his burden to prove beyond a preponderance of the evidence that the necessary criteria were satisfied, and the court finds this to be a reasonable decision based on Plaintiff's lack of evidence in support of c(2) variance relief. Beyond the fact that Plaintiff's proposed use of the property is a permitted use in that zone, Plaintiff does not provide any other evidence to show support of the intent and purpose of the zoning plan. Thus, the Board's decision not to grant a c(2) variance was not arbitrary, capricious or unreasonable.

Lastly, Judge Lawson also affirmed the Board's determination that plaintiff's application was barred by the doctrine of res judicata, finding that the application was substantially similar to the prior application of the Estate of Wiesenfeld.

When the difference between multiple applications regarding the same property is a request for greater relief in the subsequent application, the Board may find that res judicata applies. See Pieretti [ v. Bloomfield, 35 N.J. 382, 389 (1961)]. The applicants in Pieretti submitted two applications for variance relief for the same property in order to construct a building. The second application proposed the construction of a larger building than the first[-]denied application. The Court held that res judicata barred the second application, because the only difference between the two applications was the increase in the size of the proposed building.

Like the Pieretti case, the Plaintiff's application and the previous 1996 application are similar. The previous application sought the same amount of variance relief for minimum lot area and lot depth. The differences between the applications are the four feet smaller deviation for the front yard setback, two feet greater deviation from the required amount for the rear yard setback, an added request for a side yard setback variance, and the increase in the size of the proposed house for the lot. Because the changes were insignificant, with the exception of the increased size of the proposed house, the Board found that its position had not changed from the previous application. Accordingly, this court finds the Board's decision that res judicata bars the Plaintiff's application to be reasonable.

On appeal, plaintiff argues:

POINT I.

THE APPELLATE [DIVISION] IS NOT BOUND BY AN AGENCY'S DETERMINATION ON A QUESTION OF LAW, AND IS REQUIRED TO OVERTURN DISCRETIONARY RULINGS IF THEY ARE BASED UPON ARBITRARY AND CAPRICIOUS REASONING.

POINT II.

BECAUSE THE RECORD SHOWS THAT THE DEFENDANT SATISFIED THE POSITIVE AND NEGATIVE CRITERIA FOR A [c(1)] VARIANCE UNDER [N.J.S.A.] 40:55D-70(D), THE ACTIONS OF THE ZONING BOARD AND LAW [DIVISION] IN DENYING THE REQUESTED RELIEF WERE ARBITRARY AND CAPRICIOUS, AND SHOULD BE REVERSED.

A. BECAUSE, ABSENT THE GRANTING OF THE VARIANCE, NO EFFECTIVE USE CAN BE MADE OF HIS PROPERTY[,] THE PLAINTIFF SATISFIED THE HARDSHIP CRITERIA UNDER THE POSITIVE CRITERIA OF [N.J.S.A.] 40:55D-70(c)(1).

B. THE PLAINTIFF'S APPLICATION TO THE ZONING BOARD SATISFIED THE NEGATIVE CRITERIA UNDER [N.J.S.A.] 40:55D-70(c)(1).

C. ARGUMENT PRESENTED BY THE PLAINTIFF'S ATTORNEY BEFORE THE LAW DIVISION PROVIDED BACKUP AND SUPPLEMENTATION TO THE TRUNCATED AND LOST RECORD BEFORE THE ZONING BOARD.

POINT III.

BECAUSE THE RECORD SHOWS THAT THE DEFENDANT SATISFIED THE REQUIREMENTS FOR A "FLEXIBLE C" VARIANCE PURSUANT TO [N.J.S.A.] 49:55D-70(C)(2), THE ACTIONS OF THE ZONING BOARD AND LAW [DIVISION] IN DENYING THE REQUESTED RELIEF WERE ARBITRARY AND CAPRICIOUS, AND SHOULD BE REVERSED.

POINT IV.

THE DOCTRINE OF [RES JUDICATA] DOES NOT BAR THE RELIEF SOUGHT BY THE PLAINTIFF IN THIS ACTION BECAUSE OF THE ABSENCE OF IDENTITY OF PARTIES, THE APPLICATION WAS SIGNIFICANTLY DIFFERENT FROM THE PREVIOUS APPLICATION, AND BECAUSE THE ZONING BOARD NEVERTHELESS DECIDED THE APPLICATION ON THE MERITS.

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 to prove 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. at Princeton v. Twp. 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 v. Caldwell Zoning Bd. of Adjustment, 160 N.J. 41, 58 (1999).

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, supra, 131 N.J. at 528-29.

We have considered plaintiff's argument in light of the record and applicable law. We affirm substantially for the reasons expressed by Judge Lawson in his thoughtful, written opinion of October 15, 2008. R. 2:11-3(e)(1)(A).

 
Affirmed.

N.J.S.A. 40:55D-1 to -163.

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A-2744-08T3

March 15, 2010