RONALD BUSH and TINA BUSH v. THE PLANNING BOARD OF THE TOWNSHIP OF MIDDLETOWN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2185-09T1

RONALD BUSH and TINA BUSH,

Plaintiffs-Respondents,

v.

THE PLANNING BOARD OF THE

TOWNSHIP OF MIDDLETOWN,

Defendant-Appellant.

___________________________________

March 29, 2011

Argued September 22, 2010 - Decided

Before Judges Fuentes, Gilroy and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Docket No.

L-1970-09.

James H. Gorman argued the cause for appellant.

Michael B. Steib argued the cause for respondent.

PER CURIAM

The Planning Board of the Township of Middletown ("Board") appeals from the order of the Law Division reversing its decision to deny an application for a minor subdivision filed by plaintiffs Ronald and Tina Bush. The Board argues that the trial court usurped its statutory role under the Municipal Land Use Law ("MLUL") by failing to give due deference to the Board's discretionary authority and ultimately substituting the court's judgment for that of the Board. We agree and reverse.

This case came before the Law Division by way of plaintiffs' action in lieu of prerogative writs filed under Rule 4:69-6(b)(3). We derive the following facts from the record developed before the Board at the public hearing conducted to consider plaintiffs' subdivision application.

I

Plaintiffs' property is located on Brook Avenue at the corner of Chestnut Avenue in the Hillside section of the Township of Middletown. The property is situated in the R-10 zone which requires: (1) a minimum lot size of 10,000 square feet for interior lots and 12,500 square feet for corner lots; and (2) a minimum front yard setback of 100 feet for interior lots and 110 feet for corner lots. The property is currently developed with a single-family home that fronts Brook Avenue. Except for two pre-existing minor setback deficiencies, the property as currently developed conforms to the local zoning plan and laws.1

Plaintiffs submitted an application to the Board to subdivide the property into two lots in order to build a second single-family home. If approved, the subdivision would create two undersized lots requiring variances; the lot upon which the current house sits would consist of 9,249 square feet where 10,000 is required, and would have a deficient front yard setback of 61.66 feet where 100 is required. The proposed vacant lot would also require a zoning variance for front yard setback (83.34 feet provided as compared to 110 required).

Plaintiffs called only one witness - Andrew Janiw, a licensed professional planner. Janiw testified that the requested lot area and frontage variances could be granted under N.J.S.A. 40:55D-70c(2). According to Janiw, plaintiffs' property represented "a transitional area within the neighborhood" because "[p]roperties located generally to . . . the southern orientation of Brook Avenue tend to be on smaller lots, smaller frontages. As we go to the north of the property they tend to become larger." Thus, as compared to other undersized properties in the neighborhood, plaintiffs' property may be viewed as "oversized."

Janiw identified a number of properties that did not meet minimum bulk requirements in the R-10 zone. Based on this, Janiw opined that the proposed subdivision would create two lots that were well within the character of the neighborhood. The following excerpt from Janiw's testimony summarizes the central thesis of his presentation:

[T]here are a tremendous amount of non-conformities in the immediate vicinity of this lot. And what's being proposed is actually mimicked directly across Brook where you see three homes, one oriented onto Powell, as the corner of Brook and Powell adjacent to us would be. Then two homes oriented towards Brook. That's what's being proposed here in order to be consistent with the home orientation in the neighborhood.2

The Board unanimously rejected plaintiffs' application; it explained its reasons in this memorializing resolution:

Mr. Janiw originally claimed that the variances would provide a planning benefit of more "air, light and open space." He later admitted that there would be more air, light and open space with one home on the property, rather than two. The Board rejects Mr. Janiw's original testimony, and finds that there is no such benefit. Indeed, there would be a detriment of less air, light and open space if the variance were granted.

Mr. Janiw claimed that the variances would promote an appropriate population density. He admitted that establishing a minimum lot area is the primary zoning technique to control density. Under the zoning ordinance of Middletown Township only one home is permitted on a lot with this area. Proposed Lot 7.01 would be deficient in lot area by 751 square feet. This is not a de minimus variance. The Board finds that the grant of this variance would not create an appropriate population density. There is no planning benefit. Indeed, there is a detriment by squeezing in another lot.

Mr. Janiw testified that the proposed variance would result in a planning benefit because the resulting lots would be in character with the neighborhood. The Board disagrees. Mr. Janiw testified that this property was "on the cusp" between an area of smaller non-conforming lots, and larger conforming lots. There is no reason to extend that cusp to create more non-conforming lots. Creating more non-conforming lots is a planning detriment.

Accordingly, the Board finds that the positive criteria for a c(2) variance has not been satisfied. There are no planning benefits. The variance proposal does not constitute a better plan. The requirements set forth by the ordinance result in better planning.

Additionally, the applicant failed to satisfy the negative criteria of the statute. The applicant must prove that the variances can be granted without substantial detriment to the public good and without substantial impairment of the Master Plan and zoning ordinance. As to the public good, the Board repeats its findings that the variances would cause substantial planning detriments. Two homes would be squeezed onto a lot where only one home is permitted. That is contrary to the intent and purpose of the zoning ordinance and Master Plan. As the Township Planner, Jason Greenspan, noted, larger corner lots are designed to keep the area light and airy. This proposal would impair that goal. The applicant has failed to prove the negative criteria.

The Board is under no obligation to maximize the economic benefit to an applicant for further subdivision of this property. Further subdivision of this property runs counter to the intent and purpose of the zoning ordinance and Master Plan. Squeezing in another lot for the economic benefit of a developer would impair the intent and purpose of the zoning ordinance and Master Plan.

Plaintiffs appealed the Board's decision to the Law Division as an action in lieu of prerogative writs. After reviewing the record developed before the Board and describing the relevant standard of review, the court reversed the Board's denial based on the following findings:

Plaintiffs' proofs presented to the Board were that the property was substantially oversized for both the zone and the existing neighborhood. The testimony also showed that the nonconformity of the existing house was occasioned by its location on the lot. The subdivision if granted would not affect the existing nonconformity.

The present lot consists of 21,750 square feet where 12,500 is required since it is a corner lot. The largest property in the neighborhood other than the subject property was 14,000 square feet.

The effect being that the property gave the appearance of a vacant lot within the neighborhood. The court finds that plaintiffs' application satisfied the positive criteria of C-1 as plaintiffs proved that the need for the variance is occasioned by the unique condition of the property that constitutes the basis of the claim of hardship.

. . . .

[T]he Board totally ignored the applicability of N.J.S.A. 40:55D-2(a).3 With respect to the negative criteria, nothing in the record supports a finding that the configuration of the lots or the granting of the variances would create lots unusual or atypical from others in the neighborhood or that imposed a substantial detriment to the public good or impaired the intent and purpose of the zone plan.

Against this record, the Board now appeals.

II

Decisions made by a municipal zoning board are presumed valid. Cell S. of N.J., Inc. v. Zoning Bd. of Adj., 172 N.J. 75, 81 (2002). In reviewing a decision made by a municipal zoning board under the authority conferred by Rule 4:69, the trial court is not entitled to substitute its judgment for that of the board. Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004).

The court should not overturn a determination made by a municipal zoning board unless the challenging party shows that the decision was arbitrary, capricious, or unreasonable. Toll Bros., Inc. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 256 (2008). The reviewing court may not question the wisdom of the action taken by the municipal zoning board nor base a judicial declaration of invalidity on a perceived ill-advised application of the local zoning laws absent "a clear abuse of discretion by the public agencies involved." Kramer v. Bd. of Adj., 45 N.J. 268, 296-97 (1965). Of particular importance here, a reviewing court owes greater deference to a board's decision denying a variance than to granting one. Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adj., 343 N.J. Super. 177, 199 (App. Div. 2001). We apply the same standards on appeal to this court.

The grant or denial of a minor subdivision is entirely within the discretion of a zoning board. Grubbs v. Slothower, 389 N.J. Super. 377, 383 (App. Div. 2007). Although under the MLUL each municipality is entitled to establish criteria for what constitutes a minor versus a major subdivision, ibid., N.J.S.A. 40:55D-5 defines a minor subdivision as "the creation of a number of lots specifically permitted by ordinance as a minor subdivision . . . ."

In this context, we address the trial court's invocation of the concept of "hardship" as a means of granting plaintiff's subdivision. A zoning board of adjustment is empowered to grant a variance from the local zoning restrictions

[w]here: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional . . . physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property . . . the strict application of any regulation . . . would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property . . . .

[N.J.S.A. 40:55D-70(c)(1).]

This concept of "undue hardship" relates only to the physical conditions of the property and not to personal hardships of the property owner. Jock v. Zoning Bd. of Adj., 184 N.J. 562, 590 (2005); Lang v. Zoning Bd. of Adj., 160 N.J. 41, 53 (1999). To invoke this form of hardship, the applicant must prove "that the need for the variance is occasioned by the unique condition of the property that constitutes the basis of the claim of hardship." Lang, supra, 160 N.J. at 56.

Plaintiffs did not seek relief under the hardship provisions in N.J.S.A. 40:55D-70(c)(1). Janiw clearly opined that plaintiffs were entitled to a minor subdivision under N.J.S.A. 40:55D-70(c)(2). The trial court's reliance on the provisions of N.J.S.A. 40:55D-70(c)(1) was thus misplaced. Moreover, it is clear that the concept of hardship under the statute is not applicable here because plaintiffs have developed this property by constructing a one-family house. Their desire to maximize the economic potential of the property by subdividing it does not constitute hardship under N.J.S.A. 40:55D-70(c)(1).

We next address the relief available to plaintiffs under N.J.S.A. 40:55D-70(c)(2) - the so-called "flexible c" - which authorizes a board to grant a minor subdivision "wherein an application or appeal relating to a specific piece of property the purposes of this act . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment . . . ." Ibid.

The (c)(2) variance was intended by the Legislature to apply to "a very narrow band of cases." Kaufmann v. Planning Bd. for Twp. of Warren, 110 N.J. 551, 560 (1988). A "flexible c" variance is based on a benefit to the community. As explained by the Court in Kaufmann, "[N]o (c)(2) variance should be granted when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property." Id. at 563. This is commonly referred to as the "positive criteria."

In addition to establishing this positive criteria, an applicant for a variance must also satisfy the "negative criteria" of the statute, which provides that

[n]o variance or other relief may be granted . . . 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.

[N.J.S.A. 40:55D-70(d).]

The Board's resolution specifically addressed these criteria and rejected plaintiffs' claims that the subdivision amounted to "better planning." The Board noted that subdividing this plot served only plaintiffs' economic interests without providing a commensurate community benefit. The subdivision also extended the neighborhood's nonconforming lots, resulting in a clear "planning detriment."

With respect to the negative criteria, the Board found that the subdivision would ultimately reduce the property's air, light, and open space. The Board also found that the 751 square foot lot area deficiency for the proposed new lot was "not a de minimis variance." The resolution emphasized that subdividing the property would permit plaintiffs to "squeeze two homes" where one is currently permitted, contrary to the intent and purpose of the zoning ordinance and the municipal Master Plan.

In reviewing this decision, the Law Division disagreed with the Board's assessment of the impact the subdivision would have on the surrounding area and considered other areas of the MLUL that ostensibly support plaintiffs' application for relief. We conclude that the trial court erred in the manner it reviewed the Board's decision because the approach employed by the court did not reflect the deferential standard of review municipal agencies' decisions are entitled to receive.

As we noted earlier in this opinion, the decision to grant or deny an application for a minor subdivision of property is entirely within the discretion of a zoning board. Grubbs, supra, 389 N.J. Super. at 383. The court's role in reviewing the exercise of such discretionary authority is limited to determining whether the decision reached by the Board is supported by competent evidence in the record and is not otherwise unreasonable, arbitrary, or capricious. Toll Bros., supra, 194 N.J. at 256. The court does not review the wisdom of the action taken by the Board. Ibid.

Here, the record supports the Board's determination that plaintiffs' subdivision application did not warrant deviating from the local zoning scheme and was contrary to the goals and purposes reflected in the municipal Master Plan.

R

1 The Board made clear that "these pre-existing conditions [were] not a factor in the Board's decision" to deny plaintiffs' subdivision application.

2 Janiw acknowledged, however, that "the development pattern here pre-dates the R-10 zoning ordinance."

3 N.J.S.A. 40:55D-2(a) recognizes that the MLUL Act is intended "[t]o encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare[.]"