LEONARD ROTHENBERG v. TOWNSHIP OF LONG BEACH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4403-11T1

A-4431-11T1

A-4473-11T1

LEONARD and RANDI ROTHENBERG,

Plaintiffs-Respondents,

v.

TOWNSHIP OF LONG BEACH,

Defendant-Appellant,

 

and

LONG BEACH TOWNSHIP LAND USE BOARD,

Defendant-Respondent.

___________________________________

KRISTEN STAPINSKI,

Intervenor-Respondent.

___________________________________

LEONARD and RANDI ROTHENBERG,

Plaintiffs-Respondents,

v.

TOWNSHIP OF LONG BEACH,

Defendant-Respondent,

 

and

LONG BEACH TOWNSHIP LAND USE BOARD,

Defendant-Appellant.

___________________________________

KRISTEN STAPINSKI,

Intervenor-Respondent.

___________________________________

LEONARD and RANDI ROTHENBERG,

Plaintiffs-Respondents,

v.

TOWNSHIP OF LONG BEACH and

LONG BEACH TOWNSHIP LAND USE BOARD,

Defendants-Respondents.

___________________________________

KRISTEN STAPINSKI,

Intervenor-Appellant.

___________________________________

May 15, 2013

 

Argued April 15, 2013 Decided

 

Before Judges Parrillo, Fasciale and Carroll.

 

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3086-09.

 

Richard J. Shackleton argued the cause for appellant (A-4403-11)/respondent (A-4431-11 and A-4473-11) Township of Long Beach (Shackleton & Hazeltine, attorneys; Mr. Shackleton, on the briefs).

 

Adolph P. Sicheri argued the cause for appellant (A-4431-11)/respondent (A-4403-11 and A-4473-11) Long Beach Township Land Use Board (Sicheri & Sicheri, P.C., attorneys; Mr. Sicheri, on the briefs).

 

Willis F. Flower argued the cause for appellant (A-4473-11)/respondent (A-4403-11 and A-4431-11) Kristen Stapinski (Ford, Flower, Hasbrouck & King, attorneys; Robert Loefflad, on the briefs).

 

Agnes Antonian argued the cause for respondents (A-4403-11, A-4431-11, and A-4473-11) Leonard and Randi Rothenberg (Connell Foley LLP, attorneys; Kevin J. Coakley, of counsel; Ms. Antonian and Sonya B. Cole, on the brief).

PER CURIAM

Defendants, Township of Long Beach (Township) and Township of Long Beach Land Use Board (Board), and defendant-intervenor Kristen Stapinski (Intervenor), appeal the Law Division's decision reversing the Board's denial of plaintiffs' application for a bulk variance needed to build a home on a property that consists mostly of coastal wetlands. After reviewing the record in light of the contentions advanced on appeal, we reverse the Law Division's order, and reinstate the Board's Resolutions denying the variance.

I.

A.

Plaintiffs Leonard and Randi Rothenberg own a vacant lot on West Osborn Avenue, known as Lot 2, Block 1.85 on the Township tax map. The property is zoned residential, measures 80 feet wide by 128.32 feet deep, and contains a lot area of 10,266 square feet. Eight-hundred, fifty square feet of the lot is developable uplands, while the remainder, or approximately ninety-one percent of the property, consists of coastal wetlands regulated by the New Jersey Department of Environmental Protection (DEP). It is the only privately owned undeveloped parcel along the southern side of West Osborn Avenue that is encumbered by regulated coastal wetlands. Other undeveloped lots to the west and south of the property are owned by the Township.

On May 8, 2002, plaintiffs filed an application with DEP for a coastal wetlands permit to build a single-family home, which would require filling a portion of the wetlands on the property.

DEP initially denied the application on August 2, 2002, because plaintiffs had not minimized alteration or impact to "tidal circulation, vegetation, or [natural] contours" of the property. Plaintiffs appealed the DEP denial and requested an administrative hearing. Plaintiffs and defendants thereafter executed a stipulation of settlement, which was filed with the Office of Administrative Law (OAL) in January 2005. The settlement agreement allowed plaintiffs to place 988 square feet of fill on the property, and to construct a single-family residence on pilings with a footprint no greater than 1500 square feet. Surveys of the property attached to the settlement agreement show the location of the "spring high water line" and "high tide line." Importantly, they contain no mention of a "mean high water line."

On May 1, 2008, as a further condition of DEP approval, plaintiffs recorded a Declaration of Conservation Restriction, which restricted development activity on other wetlands areas of the property. Plaintiffs were further required to mitigate the impact of filling the wetlands by making a $1520 contribution to the New Jersey Natural Lands Trust.

Since wetlands are also regulated by the federal government, after being granted DEP approval, plaintiffs similarly applied for a fill permit from the Army Corps of Engineers (ACE), which was granted on August 26, 2008.1

After obtaining the state and federal permits which allowed them to fill a small portion of the property, on May 13, 2009, plaintiffs filed an application with the Board for a bulk variance from the Township zoning ordinance to construct a single-family residence on the property with dimensions of fifty by thirty feet. The entire proposed structure was located over wetlands, with part of it constructed on fill and the rest located over wetlands on pilings. In their application, plaintiffs sought relief from 205-21 of the Township zoning ordinance, which states:

In calculating the required minimum area for any lot in any district or zone within the Township of Long Beach, no land mapped by the State of New Jersey as wetlands pursuant to the Wetlands Act of 1970 (N.J.S.A. 13:9A-1 [to -10]) shall be included in calculating the minimum lot area as required by this chapter, nor shall any such lands be included in calculating any minimum lot depth or minimum lot width as required by this chapter. All building line setbacks shall be measured from the edge of any mapped wetlands, mapped pursuant to the Wetlands Act of 1970.

 

Plaintiffs claim that application of 205-21 prevents them from constructing a home on the property.

On June 10, 2009, the Board heard plaintiffs' application. Plaintiffs' professional engineer and planner, James Brzozowski, testified that the lot would fully comply, and no variances would be required, if the coastal wetlands area were to be included in the lot and setback calculations. If the coastal wetlands were not included, however, the proposed application met none of the bulk area or setback requirements.

Plaintiff Leonard Rothenberg testified that he wanted to build a house that was consistent with other houses in the neighborhood. Brzozowski testified that there are no other houses in the neighborhood built over a seventy-foot filled area with two-thirds of the structure over wetlands. When the property is filled pursuant to the DEP approval, twelve percent will be uplands, with the remaining balance wetlands. The two single-family homes to the east of plaintiffs' property were built after the enactment of the Wetlands Act in 1970, but before the Township enacted 205-21 in 1983, excluding wetlands from the lot size and setback calculations.

The Board voted to deny the requested variance on the ground that there were no conditions peculiar to the property. The Board memorialized its decision in a resolution dated July 8, 2009, which stated that "the wetlands affect a substantial area in this neighborhood and is not restricted to the specific property in question." The Board also provided another basis for denying the application, namely, that "the applicants' proposal to construct the dwelling over wetlands creates a significant hazard in that there will be no way to reasonably access the property in the event of a fire or a natural disaster because of the dwelling's construction over the wetlands and marsh." The resolution noted that no variances would be required for the proposed construction if the wetlands area were permitted to be included in the lot for calculation purposes.

On August 20, 2009, plaintiffs filed a complaint in lieu of prerogative writs challenging the denial of the variance. The trial court heard argument on April 13, 2010. On April 21, 2010, the court issued a written opinion and order reversing the Board's decision. The trial judge concluded that plaintiffs presented "a classic [N.J.S.A. 40:55D-70](c)(1) variance application[,] given the topographical and physical features that . . . uniquely affect the property." The judge further found that plaintiffs "presented ample and sufficient evidence to satisfy the positive criteria under the statute." The court then remanded the application to the Board for the limited purpose of deciding whether plaintiffs satisfied the negative criteria under N.J.S.A. 40:55D-70 with respect to fire and emergency vehicle access to the proposed development site.

B.

The Board held further hearings on the application on June 9 and September 14, 2010. At the June hearing, plaintiffs' architect, Robert Musgnug, testified that if someone was in one of the bedrooms and a fire rendered the front of the home inaccessible, the occupant would have to jump out a bedroom window into the marsh. He conceded that it would be extremely difficult if not impossible to access these windows with a fireman's ladder from the wetlands. He also discussed a suggested walkway which would provide access to the rear and one side of the house, although the other side would remain inaccessible.

Joseph J. Reinhart testified as an expert in firefighting tactics and fire suppression. He stated that it would not be possible to fight a fire in the house from the rear; however, that is also true of many homes in the area. He opined that the home would be safe with the installation of a sprinkler system, noting that sprinkler systems are ninety-seven percent effective in containing fires. He stated that "[u]nder normal conditions in residential[-]based on contents and construction, I would expect the sprinkler system to control or extinguish the fire" and prevent the involvement of heavy fire conditions. According to Reinhart, this would make access along the side of the house less vital. However, the sprinkler system, as originally designed, would only be effective for a fire that started inside the house. With respect to installing a walkway on the side of the house, which would also enhance fire safety, Reinhart testified that the walkway would need to be five-feet wide to support a twenty-foot extension ladder that could be used to rescue occupants from the top floor.

John Mallon, a licensed professional planner, visited the site and examined both the site plan and the architect's plans. He testified that the property is "predominantly tidal," and that "about 850 [square feet] right now is uplands and the balance is, basically, wetlands." Mallon testified that the high tide line is depicted on the site plan, and "it meanders through most of the back." He further indicated that the house footprint is within the high tide line.

After these witnesses testified, the parties agreed to continue the hearing to allow plaintiffs to revise the building plan to address the Board's concerns about fire safety. Plaintiffs then submitted a revised plan that narrowed the width of the structure to allow for a five-foot raised walkway on the east side and a stairway from the ground floor up to the top floor at the rear of the house. The revised plan also included a two-tank pump sprinkler system, with sprinkler heads in every room of the home.

When the hearing continued in September 2010, Mallon again testified to the location of the "high tide line," though on two occasions during cross-examination Township's counsel referred to the "mean high tide line" or "mean high tide."

Musgnug testified that the revised plan exceeded current building code requirements. The five-foot walkway on the east side of the house would function to provide access to the rear stairway and all three floors of the house. In addition, it would allow firefighters to stage a ladder on the walkway. Musgnug testified that five feet was an adequate width for fire and rescue personnel to access the house. The plan did not include a raised walkway on the west side of the house.

Philip Sconyo, plaintiffs' fire protection engineer, also testified that the revised plan adequately provided for fire safety. He stated that the sprinkler system would give any occupants "more than enough time to get out of this building," and should control any fire inside the building within twenty minutes without fire department intervention. Plaintiffs expressed a willingness to also install exterior sprinkler heads, so as to address any fires that might start in the marshy area.

Reinhart additionally testified that the five-foot walkway would provide access to three sides of the house. He stated that the width of the walkway was adequate, though not ideal, for the purpose of staging a ladder to access windows on the top two floors:

The real width for that walkway for the height of the building would be seven feet. Since we could only deal with five feet, it's close for placing a ladder, but it can be done. And we're also placing along the edge of the walkway a toe board so the ladder can be footed.

 

. . . .

 

It's not the best, but it's adequate for rescue purposes that we have to deal with.

 

At the conclusion of plaintiffs' case, defendants presented their own expert witnesses. Police Lieutenant Paul Vereb, a traffic safety officer and lieutenant in charge of dispatch and special details, testified that the house would be unsafe for first responders during emergency calls because part of the lot is below the mean high tide line. He stated that "[w]hen the tide's up, which is two to three times a month, depending on what time of year it is, that area would become flooded and impassible for most officers to get to certain sections of the house." He had witnessed the area flood numerous times before. Vereb was not presented as an expert in fire suppression and did not offer any opinion on the efficacy of the proposed sprinkler system.

Leslie A. Houston, the Township's deputy chief and emergency management coordinator, testified as an expert in fire safety, emergency management, and first aid response. Houston's concerns related to the house being located in a flooded area and how that would affect the ability of first aid responders to access the structure during non-fire emergencies.

John Hillman, president of the Beach Haven Volunteer Fire Company, was then called to testify and expressed concern that

[a] number of the sides are very difficult to reach. The west side is -- would be impossible. As far as I'm concerned, it'd be marsh. The . . . only truly accessible part would be the front of the property, even though there is a walkway to these -- because it is only five-foot wide. You know, a lot of times you have to get around to the back of the house. Even if the fire is put out by the suppression system or put down, you still need to get around the property to check it out, especially if it's flooded[,] it would be very difficult.

 

Hillman testified that in his twenty-nine years of experience fighting fires, he had never been to a house that he had not been able to walk all the way around, though he acknowledged that most houses on the island are back-to-back so that it is not possible to get a truck behind them.

David Stapinski, who has owned the house neighboring plaintiffs' property to the east for five years, testified that "the property almost constantly has water. And as I'm sure most of you know better than I, often when it does reach a certain height when there's been a storm or a full moon or a high tide, it's not temporary. It will last for days and . . . there's always water in the area in question." He stated that about two to four times a year the property becomes a lake with a depth of at least three to five feet. He never witnessed any fires in the marsh area.

Thomas J. Scangarello, a professional planner, was the last witness to testify. Although not a firefighting expert, he testified that the width of the walkway was insufficient. He based his opinion on his experience in addressing fire safety concerns while preparing development applications on behalf of municipalities. He had also witnessed at least 100 fires as the son of a retired firefighter. Scangarello testified:

So firemen always -- and I'm not as [much an] expert as the people who were there, but as what I've learned, as what I've had to design to, firemen always work in twos for protection purposes. If there's a ladder, somebody's holding the ladder. It's impossible for one person to handle the equipment. A hose is heavy. It has a lot of pressure. You've got to feed the hose up to the other person. When you're doing all that and when you're trying to access the area, it is impossible to do that -- with all due respect to the applicant's experts -- it's impossible to do that in [a five-foot wide area]. . . . You just can't do it. You can't have all that activity and do it in a safe way and make it work.

 

Scangarello also opined that the variance could not be granted without impairing the zone plan. He testified that granting the variance would be inconsistent with the goals and objectives of the zoning ordinance and master plan with respect to the promotion of health, safety and welfare. He stated that a goal of the master plan is to meet public demand for a safe environment, not only for the people that may live in the house, but also those living on surrounding properties. Scangarello found no benefit in granting the variance to anyone except plaintiffs. He stated that the proposed structure would negatively affect the neighbors' views and property values, and that health and safety concerns impacted the ability to provide emergency services, particularly "[t]he accessibility of trying to get emergency equipment to that site, given the logistics of where people park and how to get large equipment and how to get the mechanics to the house." Scangarello acknowledged that single-family homes are a permitted use in the zone, and that the house which plaintiffs intended to build would be smaller than existing houses on the street.

The Board again voted to deny the variance application, this time due to safety concerns. In its October 13, 2010 resolution, the Board found that plaintiffs' property

is inundated with standing water for substantial periods of time, especially at times of high tide.

 

The resolution further stated:

(11) The Board finds that the rooms on the southerly and westerly side of the dwelling as proposed, will have windows over the wetlands and, if occupants were required to [exit] the premises in the event of an emergency, they would fall a distance of over [twenty] feet into the marsh.

 

(12) The Applicants propose a five[-]foot wide walkway only along the easterly side of the proposed dwelling. The Board specifically finds that if the Applicant provided a sufficiently wide walk-way around the entire dwelling, the Board's safety concerns would be substantially alleviated.

 

(13) The Board finds that the five[-]foot wide walk-way is not sufficient to provide adequate room for emergency personnel as it would create an unsafe condition for the emergency personnel and would not permit any occupants to be safely rescued. You could not have more than one[]ladder to the premises at one[]time and because of the narrow walk-way, any emergency [personnel] would have to swing around the ladder carrying heavy equipment or rescued people. If the fireman or other emergency personnel mis-step, he or she could end up falling at least three feet into the marsh which has not been filled.

 

(14) In accordance with the testimony of the [a]pplicants['] own fire expert, Joseph Reinhart, the proposed walk-way is too narrow to provide adequate protection and therefore, should be a minimum of seven[-] feet wide on the southerly side. . . .

 

. . . .

 

(16) The Board is concerned that when there is no solid ground around the dwelling there will be no means of effectively fighting any fire or dealing with any other emergency which may [a]ffect the premises.

 

(17) The Board is mindful of the fact that all of the "fire suppression" equipment in the premises is subject to breaking and may not be maintained by any future owner of the premises. Consequently, the dwelling and the surrounding area will create a hazardous condition as there will be no solid surface for firefighters or other emergency [personnel] to approach the premises of the area.

 

(18) The Board members are aware that Long Beach Island is a barrier island and as such, is subject to high winds, hurricanes, northeast storms and other extreme weather conditions which will pose a hazard to those addressing any emergency to a dwelling built on top of tidelands.

 

(19) The only other developed properties in the surrounding neighborhood are constructed on solid ground. This is not what is being proposed by this [a]pplication and creates a hazardous condition in the area which should not be permitted.

 

The prerogative writ trial resumed on March 22, 2012. The Township sought, for the first time, to move into evidence documents related to plaintiffs' DEP permit application. The trial court sustained plaintiffs' objection to the Township's belated request. On April 4, 2012, the court issued a comprehensive written decision finding that (1) plaintiffs had standing; (2) plaintiffs did not need to obtain setback variances; and (3) the Board's finding that plaintiffs failed to satisfy the negative criteria was arbitrary and unreasonable. On April 16, 2012, the court entered an order reversing the Board's denial of plaintiff's application. The court further directed the Board to adopt a resolution approving the application with the required variances, with the conditions for fire suppression and safety, as agreed to by plaintiffs during the hearings. These appeals by the Board, Township, and Intervenor, which we have consolidated, followed.

 

II.

On appeal, the standard of review for the grant or denial of a variance is the same as that applied by the Law Division. Bressman v. Gash, 131 N.J. 517, 529 (1993). We defer to a municipal board's factual findings as long as they have an adequate basis in the record. Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58 (1999); Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). Although we ordinarily are not bound by an agency's determination on a question of law, In re Distrib. of Liquid Assets, 168 N.J. 1, 11 (2001), and a municipal board's construction of its own ordinances is reviewed de novo, we nevertheless "recognize the board's knowledge of local circumstances and accord deference to its interpretation," Fallone, supra, 369 N.J. Super. at 562; accord DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super. 161, 174 (App. Div.), certif. denied, 181 N.J. 544 (2004).

Where an applicant's proposal for a variance is denied, the applicant bears "the heavy burden of proving that the evidence presented to the board was so overwhelmingly in favor of the applicant that the board's action can be said to be arbitrary, capricious or unreasonable." Med. Realty Assocs. v. Bd. of Adjustment of Summit, 228 N.J. Super. 226, 233 (App. Div. 1988) (citation omitted). This is because "more is to be feared in the way of breakdown of zoning plans from grants than denials of variances." Galdieri v. Bd. of Adjustment of Morris, 165 N.J. Super. 505, 515 (App. Div. 1979).

The trial judge may not "substitute his own judgment for that of the municipal board invested with the power . . . to pass upon the application." Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976) (citations omitted). Like the trial court, our review of a municipal board's decision is limited. Smart SMR v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998). We give deference to a municipal board's decision and reverse only if its action was arbitrary, capricious or unreasonable. Zilinsky v. Zoning Bd. of Adjustment of Verona, 105 N.J. 363, 367 (1987) (citations omitted); Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296 (1965); Cohen v. Bd. of Adjustment of Rumson, 396 N.J. Super. 608, 620 (App. Div. 2007).

On appeal, defendants essentially contend that (1) plaintiffs lacked standing to bring the variance application; (2) the trial court erred in refusing to admit into evidence the DEP file pertaining to plaintiffs' wetlands permit application, and (3) plaintiffs failed to satisfy both the positive and negative criteria required for the granting of the variance. We address these contentions in turn.

A.

The Township and Board first argue that plaintiffs lacked standing under N.J.S.A. 40:55D-70 to apply for a variance because they did not have an enforceable proprietary interest in the property. Defendants maintain that almost the entire property is located below the mean high water line and therefore owned by the State.

Standing is a threshold jurisdictional issue. Watkins v. Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398, 417-18 (1991). The Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163, authorizes local boards of adjustment to grant hardship variances when an exceptional condition or situation uniquely affecting the property "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) (emphasis added). The statute defines "developer" as "the legal or beneficial owner or owners of a lot or of any land proposed to be included in a proposed development, including the holder of an option or contract to purchase, or other person having an enforceable proprietary interest in such land." N.J.S.A. 40:55D-4.

Defendants' argument that plaintiffs lack standing focuses on the distinction between the terms "high tide line," which was shown on the site plan as traversing plaintiffs' property, and "mean high water line," which did not appear on the plan. These terms have separate meanings and, at least with respect to this application, their presence or absence may have different consequences, as "the State owns the lands subject to flow by mean high tides unless the State has conveyed its interest in it." Gormley v. Lan, 181 N.J. Super. 7, 12 (App. Div.) (citing O'Neill v. State Highway Dep't, 50 N.J. 307, 323 (1967)), aff'd, 88 N.J. 26 (1981).

DEP's High Water Manual, which the trial court cited in its opinion, provides definitions of these different terms. "High tide" or "high water" is defined as "[t]he maximum height reached by a rising tide," and the "high water line" is "[t]he intersection of the land with the water surface at an elevation of high water." "Mean high water" is separately defined as "[t]he average of all the high water heights observed over the National Tidal Datum Epoch" and the "mean high water line" is "[t]he line on a chart or map which represents the intersection of the land with the water surface at the elevation of mean high water."

Additionally, N.J.A.C. 7:7E-1.8 defines "mean high water" as "a tidal datum that is the arithmetic mean of the high water heights observed over a specific 19-year Metonic cycle (the National Tidal Datum Epoch). For the New Jersey coast, the two high waters of each tidal day are included in the mean." The "mean high water line" is "the intersection of the land with the water surface at the elevation of mean high water." Ibid.

The Township's argument that plaintiffs lacked standing to apply for the variance is in part based on the testimony of plaintiffs' engineer, Mallon, at the Board hearings. Mallon's testimony relevant to this issue was based on a site plan of the property which, as noted, shows the location of the "high tide line." The word "mean" is not shown on the plan. It is true that twice during cross-examination Township's counsel referred to the "mean high tide line" and neither Mallon nor plaintiffs' counsel attempted to correct him. Nevertheless, Mallon repeatedly referred to the line as the "high tide line," not once using the word "mean" himself. At the June 2010 hearing, Mallon testified:

Q: The high tide line is depicted on the plan?

 

A: And it meanders through most of the back . . . .

 

. . . .

 

Q: And as we'll follow it around it appears to me that virtually the entire house is located within the high tide line; is that correct?

 

A: That would be correct.

 

. . . .

 

Q: As we look at A-4 that indicates a high tide line I think it's called, is it?

 

A: Yes. As it is by the State, yes, sir.

 

[(Emphasis added).]

 

We are satisfied, based on our review of the record as a whole, that the site plan which was in evidence before the Board, and to which Mallon was clearly making reference, showed only the high tide line, and not the mean high tide line, located on the property.

Moreover, during plaintiffs' DEP permit application process, the State, through its agency, the DEP, was specifically made aware of plaintiffs' intent to build a home on the property. Although the DEP had the opportunity to review plaintiffs' application, survey and plans, and assess the presence of tidal lands on the property, there is no evidence that the State ever sought to claim all or part of the property. Rather, the undisputed evidence is that the DEP elected to grant plaintiffs permission to fill a portion of the wetlands on the property, and construct a home thereon.

In any event, as noted, the term "developer" as defined in N.J.S.A. 40:55D-4 encompasses an owner of "any land proposed to be included in a proposed development." (Emphasis added). Here, in addition to the coastal wetlands, it is undisputed that a section of plaintiffs' property also contained uplands. A plain reading of the statute leads us to conclude that plaintiffs are a "developer" because they own "any" land included in the proposed development, and thus they had standing to bring this variance application, as the trial court properly concluded.

B.

The Township next argues that the trial court erred in refusing to allow the introduction of its exhibit, DEP's file on plaintiffs' wetlands permit application, into evidence. According to the Township, the DEP file, which was not in evidence during any of the Board hearings, would have brought to the court's attention that the "high tide line" on the map relied on by plaintiffs' engineer was in fact the "mean high tide line." The Township specifically refers to a map in the DEP file which it represents shows a "mean high tide line," and a letter from the DEP initially denying plaintiffs' application, which included a statement that "[t]he mean high water and spring high water lines come up to the toe of the Osborne Avenue fill."

At the March 22, 2012 trial, the judge denied the Township's request to admit the DEP permit file into evidence:

We carried this case to address this very issue over the objection of [plaintiffs] when you raised some time ago whether or not they even owned the property, and now on the day of trial we're introducing some exhibits which [plaintiffs' counsel] has only received today, and I don't believe it's appropriate, sir.

 

. . . .

 

It may well have been and probably is a document in the possession of [plaintiffs], but in fairness to [plaintiffs], I don't know if they were prepared to address any arguments with respect to that exhibit today, and . . . I'm going to bar the entry of [plaintiffs' DEP application].

 

A trial court's ruling on the admissibility of evidence is subject to the abuse of discretion standard on review. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). A reviewing court is not permitted to create anew the record on which the trial court's admissibility determination was based. Ibid. A "trial judge's discretion in excluding evidence is broad and should stand unless so wide of the mark that it results in a manifest denial of justice." Bitsko v. Main Pharmacy, Inc., 289 N.J. Super. 267, 284 (App. Div. 1996).

Given the late production of the DEP file on the trial date, the substantial length of time the Township had to obtain the file while plaintiffs' variance application was pending, and that the trial judge previously granted an adjournment of the trial date, we perceive no abuse of discretion in the trial court's decision to preclude the evidence. In any event, given our ruling that N.J.S.A. 40:55D-4 confers standing on plaintiffs as owners of "any" part of the property included in the development application, any error in refusing to admit the exhibit was harmless as it lacks the capacity to change our conclusion that plaintiffs had standing to bring the variance application.

C.

Defendants next argue that plaintiffs failed to satisfy the positive criteria required for the grant of a variance under N.J.S.A. 40:55D-70(c)(1) because the condition they sought relief from (wetlands inhibiting development) is not unique or exceptional but affects numerous other properties in the same zoning district. The Board argues that granting the variance would substantially alter the character of the district and effectively rezone the area, defeating the purpose of the Township's zoning ordinance.

Plaintiffs argue that the positive criteria are satisfied because the wetlands are an exceptional topographic condition uniquely affecting their property. They claim they will suffer a hardship from their property being zoned into inutility if the variance is not granted, and that their property is unique in that it is the only property in the area encumbered by wetlands that has fill permits.

In its initial decision, the trial court found that plaintiffs satisfied the positive criteria. The court stated that "plaintiffs' application . . . presents . . . a classic c(1) variance application given the topographical and physical features that this court finds uniquely affect the property." In rejecting the Board's position, the court stated that

a zone change is [not] needed in order to grant bulk variances for a single discrete parcel of land as each application is to be considered by the Board on a case-by-case basis. Wetland regulations may apply to several parcels in a given area but impact individual parcels in different ways and degrees.

To obtain a "hardship" variance, an applicant must establish the following positive criteria:

Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or 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 or the structures lawfully existing thereon, the strict application of any regulation pursuant to article 8 [C.40:55D-62 et seq.] of this act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship[.]

 

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

 

As noted, this requirement that the applicant show that it will suffer exceptional or undue hardship if the variance is not granted is referred to as the "positive criteria." Nash v. Bd. of Adjustment of Morris, 96 N.J. 97, 102 (1984). The hardship must result from some peculiar condition of the property. The "focus of the board's inquiry should be on whether the unique property condition relied on by the applicant constitutes the primary reason why the proposed structure does not conform to the ordinance." Lang, supra, 160 N.J. at 56. A "'variance' for undue hardship is grounded in conditions peculiar to the particular lot as distinguished from other property in the use district. General hardship is relievable only by a revision of the general rule of the ordinance, a local legislative process, or by the judicial process." Beirn v. Morris, 14 N.J. 529, 535 (1954).

In Terner v. Spyco, Inc., 226 N.J. Super. 532, 535 (App. Div. 1998), the applicant sought a (c)(1) variance that would allow construction of single family homes in a residential zone within an area mapped as a 100 year flood plain. There, as here, the Township had adopted an overlay ordinance to the residential zone, which in Terner prohibited the erection of structures within a designated 100 year flood plain.2 Id. at 547-548. In reversing the planning board's finding that the applicant had satisfied the positive criteria, we determined that the applicant failed to establish how the peculiar or exceptional conditions of the property "imposed an undue hardship upon [the applicant] that would not be experienced by owners of other property within the designated flood plain." Id. at 548.

Here, the evidence before the Board that plaintiffs satisfied the positive criteria was limited. Brzozowski, plaintiffs' expert engineer and planner, testified:

Q. Let me ask you from a planning perspective, and I take it that there's a hardship on this property. You would not be able to build upon it if you had to strictly adhere to the requirements of [ ] 205[-]1?

 

A. Yeah. I believe that this property qualifies for a variance under [(c)(1)] because of exceptional topographic features and other extraordinary situations and circumstances on the property, being that it's covered by wetlands.

 

Upon further questioning by the Board attorney, Brzozowski appeared to concede that the presence of wetlands was not unique to this property, and expressed that a use variance, rather than a hardship variance, might be more appropriate:

Q. I have one question before you go.

The one thing that bothers me about this variance is that a condition of a [(c) (1)] variance . . ., a condition of using the variance[,] is that it has to be peculiar to this property. Basically[,] this is a condition that really covers a whole section of the area there. Aren't you really asking this board to rezone this property? And if that's the case, does this board have jurisdiction?

 

I know the answer. The Board doesn't have jurisdiction to do that.

 

A. I think you're exactly right. I think this is a use variance, actually.

During the initial June 10, 2009 hearing, the Board heard testimony from which it could reasonably conclude that plaintiffs' property was not uniquely encumbered by the presence of wetlands. Brzozowski testified that to the west of plaintiffs' property was a vacant lot, and also

[t]here's a pad to the east of this property which has two single-family houses developed on it. And it's two separate properties. Each property has a single-family house. Then there's another vacant strip of what would -- I assume would be considered wetlands before another upland portion.

 

Hence, according to plaintiffs' own expert, there are two vacant properties in the immediate vicinity which, albeit owned by the Township rather than privately owned, appeared to present similar conditions. As to the houses to the east, the evidence before the Board indicated that they were built before the Township enacted 205-1 in 1983, and so were not affected by wetlands setback requirements.

Gerald Sweeney, who owns property diagonally across from plaintiffs' property, also testified to the presence of wetlands on other nearby properties:

As you come down the block from West Avenue, there's a house, perhaps two houses. Yes. There's two houses. And then there's wetlands all the way in back. There's a whole section of which there's a paper road, on which you have partial. The reason the paper road was never built, because it's all wetlands in there.

 

Given our standard of review, and the deference we pay to the Board's knowledge of local circumstances, we conclude that there is sufficient competent evidence in the record to support the Board's July 8, 2009 resolution, which stated "the Board specifically finds that the wetlands affect a substantial area in this neighborhood and is not restricted to the specific property in question."

Plaintiffs also argue that the condition affecting their property is unique because, unlike other property owners, they obtained permits from DEP and ACE to build over the wetlands. We disagree. In an analogous case denying a hardship variance to construct housing in a 100 year flood plain, we noted that "DEP's hardship waiver regulations are not controlling . . . where the municipality has chosen to adopt a more restrictive Flood Hazard Ordinance than required by the State's Flood Hazard Control Act. A municipality may choose to condition variances on more restrictive criteria." Terner, supra, 226 N.J. Super. at 545.

D.

In addition to demonstrating the "positive" criteria, an applicant for a (c)(1) hardship variance must demonstrate the following "negative" criteria:

No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, 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.]

 

The question of whether the variance will cause substantial detriment to the public good "focus[es] . . . on the impact of the variance on neighboring properties." D. Lobi Enters., Inc. v. Planning/Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 358 (App. Div. 2009).

With respect to the statutory requirement that the variance not substantially impair the intent and purpose of the zone plan and zoning ordinance, the inquiry "focuses on whether the grant of the variance can be reconciled with the zoning restriction from which the applicant intends to deviate." Lang, supra, 160 N.J. at 57. This reconciliation "depends on whether the grounds offered to support the variance . . . adequately justify the board's action in granting an exception from the ordinance's requirements." Id. at 57-58.

An applicant bears the burden of establishing the negative criteria "by a fair preponderance of the evidence, but . . . '[t]he less of an impact, the more likely the restriction is not that vital to valid public interests.'" Commons v. Westwood Zoning Bd. of Adjustment, 81 N.J. 597, 607 (1980) (quoting Chirichello v. Monmouth Zoning Bd. of Adjustment, 78 N.J. 544, 561 (1979)).

Here, the Board and Intervenor contend that plaintiffs failed to satisfy the negative criteria required for the grant of a (c)(1) variance. They argue that allowing plaintiffs to build a house over the wetlands would create a fire safety hazard, most notably by restricting access by fire and emergency personnel. They further argue that plaintiffs failed to show that the requested variance would not substantially impair the intent and purpose of the zoning plan and ordinance.

Plaintiffs argue that they satisfied the negative criteria by sufficiently responding to the safety concerns the Board raised during the initial hearing. They argue that the safety measures need not be perfect to avoid causing a substantial detriment to the public good, and moreover that there would be no substantial impairment to the zone plan or zoning ordinance, which they contend is concerned only with preventing over-density.

The trial court acknowledged that it was within the Board's scope of review to consider issues of public safety and welfare as well as fire safety. Nevertheless, the court held that the Board's finding that plaintiffs failed to meet the negative criteria because the proposed house would create an unsafe condition for fire and emergency personnel was unreasonable and not supported by credible evidence in the record. The trial court further concluded that "[a] fair reading of this record does not support a finding that the proposed single-family dwelling, in a permitted zone, would substantially impair the intent and purpose of the zone plan and zoning ordinance." We disagree, and find adequate support in the record for the Board's conclusion that the negative criteria were not established.

At the initial Board hearing, several concerns were raised regarding the ability of occupants inside the proposed dwelling to escape in the event of a fire, as well as firefighters and emergency personnel to access the site. On remand, the negative criteria inquiry focused primarily on fire safety issues. Plaintiffs' proposed plan was revised to address the Board's concerns, and included reducing the size of the home to accommodate construction of a five-foot wide walkway on the east side, and installation of an interior sprinkler system. Plaintiffs also agreed to include the installation of exterior sprinkler heads.

To be sure, plaintiffs' experts provided ample testimony intended to establish that with the addition of these new features, the proposed home would no longer pose a significant fire hazard. Nevertheless, the testimony provided by defendants' experts provided the Board with sufficient credible evidence to find that plaintiffs failed to satisfy the negative criteria due to fire and safety concerns. The Board was not obligated to accept plaintiffs' expert testimony. See Wilson v. Brick Twp. Zoning Bd., 405 N.J. Super. 189, 197 (App. Div. 2009); El Shaer v. Planning Bd. of Lawrence, 249 N.J. Super. 323, 329 (App. Div.), certif. denied, 127 N.J. 546 (1991).

Here, defendants' experts testified that the walkway along the east side did not sufficiently alleviate concerns about access into and out of the house in the event of a fire emergency. Hillman, the president of the Beach Haven Volunteer Fire Company, testified that the west side of the house would be impossible to reach, and the other sides would still be very difficult to reach because of the narrow width of the walkway. He stated that it is necessary to get around the property to check it out even if the sprinkler system puts out the fire, which would be rendered more difficult when the property is flooded. Scangarello, a professional planner, also testified that the walkway was too narrow, and that it would be impossible for firefighters working in pairs to access the area and handle firefighting equipment in such a confined space. Scangarello indicated that he was familiar with the Township's master plan, and helped write some of the Township's zoning ordinances. In his view, the variance, if granted, would not serve to promote health, safety and welfare.

The trial court improperly dismissed the testimony of these two witnesses. The court rejected Hillman's testimony as conclusory, stating that he did not explain why five feet was not an adequate width for the walkway. However, the testimony of plaintiffs' experts in this regard appears to be no more thorough. Reinhart and Musgnug simply offered the opposite opinion that five feet would be wide enough for firefighters to stage a ladder and to provide access to the east and south sides of the house. In fact, Reinhart testified that the walkway should preferably be seven feet wide given the proposed structure's height.

The court found that the Board could not properly rely on Scangarello's testimony as a basis to reject the testimony of plaintiffs' experts concerning the sufficiency of the walkway, because the subject was not properly within his area of expertise. However, the court merely focused on Scangarello's experience watching his father fight fires, and appears to have overlooked his extensive experience as a professional planner designing development plans that incorporate fire safety standards.

The testimony from defendants' witnesses as to the inadequacy of the walkway was buttressed by additional testimony with respect to the severe flooding that occurs on the property. Both Lieutenant Vereb and a neighbor, David Stapinski, testified that they had witnessed flooding on the property. Vereb stated that the property becomes flooded two to three times a month, which would prevent emergency personnel from accessing certain sections of the house. Stapinski testified that the property almost constantly has water, which rises to a depth between three to five feet a few times each year.

With respect to the sprinkler system that plaintiffs agreed to install, the unrebutted expert testimony established that it exceeded industry standards for a residential building, and would be ninety-seven percent effective in containing and even in some instances extinguishing interior fires. Nonetheless, the Board had a sufficient basis in the record to conclude that the sprinkler system, though it certainly enhanced fire safety, did not excuse the need for reasonable access to all parts of the residence by firefighters and emergency personnel, which several of defendants' witnesses testified would not be possible.

As noted, an applicant bears the additional burden of proving that the zone plan and zoning ordinance would not be substantially impaired by granting the variance. Again, we conclude that plaintiffs failed to meet this burden.

Here, intervenor's expert planner, Scangarello, was familiar with the Township's master plan and testified that he helped write some of the Township's zoning ordinances. He opined that granting the requested variance "would be inconsistent with the goals and objectives of the master plan, because the goals and objectives deal with promoting proper health, safety and welfare principles." For those same reasons, Scangarello indicated that the variance could not be granted without detriment to the public good. When asked to weigh the respective benefit and detriment were the variance to be granted, he concluded "I don't know of any . . . benefit to granting these variances."

Notable also in this regard is the testimony of plaintiffs' planner, Brzozowski, at the initial hearing:

Q. A great deal of this particular structure is out extends out over the wetlands area.

 

A. That's correct.

 

Q. What percentage is out over the wetlands area as opposed to over the filled area?

 

A. I'm going to say roughly about two thirds of the building?

 

Q. One of the things that Mr. Rothenberg said was he's trying to make this property -- this development like the other houses in the neighborhood. You familiar with the neighborhood?

 

A. Yes, I am.

 

Q. What other houses do you know that are built over a [seventy]-foot filled area, two thirds of the structure out over the wetlands?

 

A. There are none.

 

When questioned specifically with respect to the negative criteria, Brzozowski indicated:

A. So we're asking the Board for a variance to allow us to include the wetlands in the calculation of the lot area.

 

Q. That's exactly what -- but in terms of the negative criteria, one of the things that the Applicant has to show is that the granting of it won't go against the zoning ordinances policy; correct?

 

A. Yeah. That's correct.

 

Q. And this does go directly against the zoning ordinances policy; correct?

 

A. Well, it certainly impacts the residents.

 

Plaintiffs additionally contend that they will suffer a hardship if the variance is not granted because their property will be zoned into inutility. For a (c)(1) bulk variance, the hardship that results from some peculiar or exceptional condition of the property need not be so severe as to zone the property into inutility -- a hardship that may inhibit the extent to which a property can be used is sufficient. Bressman v. Gash, 131 N.J. 517, 523-24 (1993); Hawrylo v. Bd. of Adjustment, Harding Twp., 249 N.J. Super. 568, 582 (App. Div. 1991). In Bressman, supra, the board determined the hardship requirement was satisfied because "'it would be almost impossible to construct a house on the property comparable to surrounding houses without the necessity of some variance.'" Id. at 524. Due to the shape and size of the lot and applicable setback requirements, the proposed structure would have had "an extremely limited building envelope" compared to neighboring properties. Id. at 524-25.

Nevertheless, a variance application may be denied where the negative criteria have not been satisfied but a more appropriate home can be constructed on the property. See Simeone v. Zoning Bd. of Adjustment, 377 N.J. Super. 417, 426-27 (App. Div. 2005). In its October 13, 2010 resolution, the Board seems to have left open such possibility:

(14) In accordance with the testimony of the [a]pplicants['] own fire expert, Joseph Reinhart, the proposed walk-way is too narrow to provide adequate protection and therefore, should be a minimum of seven (7') feet wide on the southerly side. The Board specifically finds that either the Applicants should reduce the size of the dwelling to provide for a seven (7') foot wide walkway around the structure or they should apply [to] the NJDEP for authority to fill the entire lot so that the dwelling can be built on solid ground and avoid all of the dangerous conditions a narrow walk-way created.

 

In any event, our review is limited to the only plan proposed for the construction of a home on plaintiffs' property. Simeone, supra, 377 N.J. Super. at 427-428. We conclude that the Board's findings that plaintiffs failed to satisfy both the positive and negative criteria were not arbitrary and capricious. Accordingly, we reverse the trial court's order and reinstate the Board's decision denying the variance application.

Reversed.

 

 

1 The ACE permit has since expired; plaintiffs re-applied and were granted a new permit on October 11, 2012.

2 As the court noted:

 

It is true that insofar as the overall zoning of the town is concerned, this district has been designated as R-3 and appropriate for residential structures. However, with its flood plain ordinance, Ocean Township has adopted what is referred to as an "overlay" district, that is, it has left in place the districts adopted in its Zoning Ordinance but added a new layer of controls when that land is located within a 100 year flood plain. Terner, supra, 226 N.J. Super. at 544.