JEFFREY R. JERMAN v. THE TOWNSHIP OF MANCHESTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JEFFREY R. JERMAN,

Plaintiff-Appellant,

v.

THE TOWNSHIP OF MANCHESTER,

Defendant-Respondent.

September 9, 2016

Argued December 7, 2015 Decided

Before Judges Carroll and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2028-13.

Jeffrey R. Jerman, appellant, argued the cause pro se.

Harold N. Hensel argued the cause for respondent (Secare & Hensel, attorneys; Mr. Hensel, on the brief).

PER CURIAM

Plaintiff Jeffrey Jerman appeals from the Law Division's September 19, 2014 judgment dismissing his action in lieu of prerogative writs challenging defendant Township of Manchester's zoning ordinance amendments. For the reasons that follow, we affirm.

I.

On June 24, 2013, Manchester passed ordinance #13-005 (the ordinance), to address the building of single-family homes in undersized lots in the "R-10" residential zone (the zone). A conforming lot in the zone, requires a 10,000 square foot minimum lot area with minimum lot dimensions of 100 feet x 100 feet. The maximum height of a building on a conforming lot is two and one half stories. For an undersized lot, the maximum height is one and one half stories. Previously, the township's Zoning Board of Adjustment (the Zoning Board) granted variance applications permitting homes on undersized lots that were larger than one and one half stories. The new ordinance also set forth additional requirements for variance applications.

Plaintiff, a real estate developer and an owner of undersized lots1 in Manchester, sought to invalidate the ordinance in a six-count complaint. He alleged that the height restrictions on undersized lots violated the uniformity requirements of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. He contended that the ordinance's revised requirements for submitting variance applications without amending the checklist section of the ordinance violated N.J.S.A. 40:55D-10.3. He also asserted that the ordinance's increased escrow requirement for variance applications from $1500 to $3500 were unreasonable. Plaintiff claimed that the ordinance's requirement that an applicant submit foundation as-built plans, final as-built plans, and grading and storm management plans were beyond the scope of a Zoning Board's authority. In addition, he maintained that the township was unreasonable in removing minimum floor area requirements and requiring the submission of twenty additional copies of the application.

After denying Manchester's motion to dismiss, a one-day trial was held on August 15, 2014, before Judge Vincent J. Grasso. Both parties presented expert testimony. Plaintiff's expert, William E. Stevens, P.E. and P.P., testified that the zone predominately has two or two and one half story single-family homes. Although he acknowledged that the Zoning Board had previously approved variances for undersized lots, Stevens opined that the uniformity provisions of the N.J.S.A. 40:55D-62(a) require that all single-family homes in the zone have the same height requirements. He also stated that the ordinance's site plan requirements - submission of foundation as-built, final as-built, and grading and storm management plans - should be within the jurisdiction of the township's building department and engineer, not the Zoning Board engineer. In addition, Stevens contended the increased variance application escrow fee was unjustified.

According to Manchester's planner, Thomas A. Thomas, P.P., the purpose of the ordinance was to establish a set of uniform requirements and review standards consistent with the principles established in Dallmeyer v. Lacey Township Board of Adjustment, 219 N.J. Super 134 (Law Div. 1987), for the development of undersized lots because the township determined that the building height of two or two and a half story single-family homes on such lots was not in character with the rest of the zone.

Thomas stated that most of the properties in the zone are one or one and a half story single-family homes. His research revealed that there are approximately 702 vacant lots in the zone, the majority (395) of which are undersized. Thomas opined that the ordinance's differentiation of two classes of homes within the zone, conforming lots and undersized lots, is consistent with the uniformity requirement of N.J.S.A. 40:55D-62(a). He acknowledged that he proposed four ordinance alternatives for the township's consideration. The township rejected his recommended maximum floor area ratio standard, which would equally affect the residences in the district. Instead, it accepted the height restrictions standard alternative that Thomas proposed. Thomas stressed that owners of undersized lots could seek a height variance. Lastly, he maintained that the escrow fee increase was necessary as the original fee was insufficient to cover the time expended by township staff and costs for professionals to review the detailed application for height variances for undersized lots.

In an order dated September 19, Judge Grasso dismissed plaintiff's complaint and entered a judgment in favor of Manchester. He set forth the basis for his decision in a detailed written opinion. The judge found that the height restrictions for undersized lots did not conflict with the uniformity requirements of N.J.S.A. 40:55D-62(a).

To interpret the statute, Judge Grasso sought guidance from Rumson Estates, Inc. v. Mayor & Council of Fair Haven, 177 N.J. 338, 344 (2003), where our Supreme Court ruled "uniformity does not prohibit classifications within a district so long as they are reasonable and so long as all similarly situated property received the same treatment." The Court upheld a municipal ordinance that applied a cap to override the floor area ratio on oversized lots to prevent the building of huge houses in a zone established with much more modest residences. Id. at 359. Judge Grasso wrote,

The Court stated that the classification advanced two rationales: the first was the proportionality of new construction to other houses in the zone; the second was the diversification of housing stock by the building of smaller more affordable homes. Ibid. Moreover, the Court stressed that even if it is debatable as to whether the chosen methodology is the most efficient one, it is a decision for the municipality rather than for the [C]ourt. [Id.] at 360. . . . [O]nce the [municipality's] decision was made, it became presumptively valid and would not be nullified except upon an affirmative showing that the action taken was unreasonable, arbitrary or capricious.

Ibid.

Judge Grasso found credible Thomas's testimony that the ordinance was designed to require "different height standards for the two classes of lots in order to provide adequate light, air, and open space, to create uniformity in this area, and to keep appropriate population densities, which are valid principles of zoning." The judge determined that under these circumstances it was not within his authority to second-guess the wisdom of Manchester's ordinance. Furthermore, he found "that plaintiff has failed to prove that the municipality acted in an unreasonable, discriminatory, or arbitrary manner, and that the regulation bears no relationship to the purpose sought to be accomplished by the ordinance."

Judge Grasso rejected plaintiff's allegation that the ordinance did not revise the application checklist to include the new items required for site plan submissions. Relying upon Amerada Hess Corp. v. Burlington County Planning Board, 195 N.J. 616, 637, 639 (2008), the judge found "that the [o]rdinance is valid without revising the checklist as long as the [Zoning] Board's seeking documents outside the checklist has no bearing on the completeness of the application."

With respect to the increased application escrow fee, the court accepted Thomas's testimony that the increase was due to additional information required by the ordinance resulting in more work for township staff and professionals. The judge acknowledged that not increasing the initial escrow fee would likely lead to a subsequent request for applicants to deposit an additional amount in escrow after submitting applications and to processing delays. Thus, plaintiff did not meet his burden to establish the escrow requirement was unreasonable.

Judge Grasso dismissed plaintiff's argument that the requirements of foundation as-built and final as-built plans exceed the information needed by the Zoning Board for a variance approval. He agreed with Manchester's contention that these requirements were reasonable as they were legitimate considerations pursuant to the New Jersey State Uniform Construction Code, N.J.S.A. 52:27D-119 to -141, and "New Jersey Residential Code."2 In addition, the judge found no merit to plaintiff's contention that the ordinance unreasonably requires undersized lots to submit a set of building plans compliant with the building code as part of a variance application. In accordance with the principles established in Dallmeyer, supra, 219 N.J. Super. at 145, 147, that a zoning board makes a complete factual finding based on the record, the judge noted that requiring the submission of the plans establishes "a consistent set of standards for undersized isolated lots for residential buildings within" the zone. Thus, there was no evidence by the plaintiff that the ordinance was arbitrary and amounted to an unconstitutional restriction on the use of his property.

Lastly, Judge Grasso ruled that the grading requirements of the ordinance are not beyond the scope of a variance approval. He found that plaintiff's reliance on Ten Stary Dom Partnership v. Mauro, 216 N.J. 16 (2013), was misplaced, because there, the Court dealt with "a bulk variance from a frontage zoning requirement by a property that conformed in all other respects to the zoning ordinance for single-family homes. [Id.] at 20." The Court did not preclude drainage as a valid consideration for a Zoning Board's consideration of a variance. Id. at 32. The requirement was meant "to expedite the application and review process by incorporating drainage considerations into a consistent set of standards" to avoid "ad hoc submissions by various variance applicants."3 The judge acknowledged that it was "debatable whether grading and storm water management plan[s] are necessary for all variance applications for undersized lots in the [Zone], [but did] not question the wisdom of the ordinance." This appeal followed.

II.

Plaintiff reiterates the arguments made to the trial court. He contends that the ordinance should be invalidated because it violates the uniformity provisions of N.J.S.A. 40:55D-62(a) by unreasonably requiring different height restrictions for conforming and non-conforming lots. He asserts that N.J.S.A. 40:55D-10.3 requires ordinances to adopt a checklist setting forth requirements for different types of applications. He argues that the ordinance's required submission of grading and storm water management plans, contract of the land sale, landscape plans, retaining wall plans, foundation as-built and final as-built plans exceeds the Zoning Board's authority. He further contends that the increase in required escrow fees by $2000 was unreasonable.

We begin with a review of the well-established legal principles that guide our analysis. As a threshold matter, when reviewing a trial court's determination of the validity of an action taken by a land use board, we are bound by the same standard as the trial court. N.Y. SMSA, Ltd. P'ship v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004) (citing Charlie Brown of Chatham v. Bd. of Adjustment of Chatham, 202 N.J. Super. 312, 321 (App. Div. 1985)). Municipal zoning ordinances enjoy a presumption of validity. Rumson Estates, supra, 177 N.J. at 350 (citing Riggs v. Long Beach, 109 N.J. 601, 610-11 (1988)); Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 380 (1995) (citing Bow & Arrow Manor, Inc. v. Town of W. Orange, 63 N.J. 335, 343 (1973)); Zilinsky v. Bd. of Adjustment of Verona, 105 N.J. 363, 368 (1987) (citing Davidow v. Bd. of Adjustment, 123 N.J. Super. 162, 166 (App. Div. 1973)). This presumption may be overcome by proof that the ordinance is arbitrary, unreasonable or capricious, or plainly contrary to fundamental "principles of zoning or the [zoning] statute." Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 289-90 (2001) (quoting Bow & Arrow Manor, Inc., supra, 63 N.J. at 343), cert. denied, 535 U.S. 1077, 122 S. Ct. 1959, 152 L. Ed. 2d 1020 (2002); Riggs, supra, 109 N.J. at 611 (citation omitted). "This showing may be made with respect to the facial validity of a zoning ordinance, or its application to particular property." Bailes v. Twp. of E. Brunswick, 380 N.J. Super. 336, 348 (App. Div.) (citations omitted), certif. denied, 185 N.J. 596 (2005).

A zoning ordinance must generally meet four criteria: (1) it must advance one of the purposes of the MLUL delineated in N.J.S.A. 40:55D-2; (2) it must be "substantially consistent with the land use element and the housing element of the master plan," N.J.S.A. 40:55D-62a; (3) it must "comport with constitutional constraints on the zoning power, including those pertaining to due process[,] equal protection[,] and the prohibition against confiscation" Ibid.; and (4) the municipality must follow the prescribed procedures for adopting the ordinance. Riggs, supra, 109 N.J. at 611-12 (citations omitted).

Further, "an ordinance that may operate reasonably in some circumstances and unreasonably in others is not void in toto, but is enforceable except where in the particular circumstances its operation would be unreasonable and oppressive." Harvard Enters., Inc. v. Bd. of Adjustment of Madison, 56 N.J. 362, 368 (1970) (citations omitted). In order to determine whether an ordinance is enforceable when applied to a particular property, it is necessary to determine whether the ends sought to be accomplished by the ordinance justify the restrictions placed on the property and whether the means used are reasonably related to those ends. Pheasant Bridge, supra, 169 N.J. at 293 (quoting Home Builders League v. Berlin, 81 N.J. 127, 138 (1979)). In evaluating that question, primary importance is placed on the "reasonableness" of the municipality's chosen means to accomplish an otherwise valid end. Id. at 290, 294.

Reviewed under these principles, we affirm for the reasons expressed by Judge Grasso in his written opinion. Succinctly stated, the zoning ordinance reasonably classifies single-family homes on different sized lots consistent with the uniformity requirements of N.J.S.A. 40:55D-62(a) and reasonably requires certain information and the designated escrow fee amount for variance applications. We discern no reason to substitute our judgment for that of the township.

Affirmed.

1 His lots are 75 feet by 100 feet and 50 feet by 100 feet.

2 We assume the trial judge was referring to the International Residential Code, New Jersey Edition (UL-CSA).

3 The trial court also addressed plaintiff's challenge to the ordinance requirement of submitting additional copies of the application and removing minimum floor area requirements. Given that these issues are not the subject of this appeal, we do not discuss the court's ruling on these issues.