Opinion
DOCKET NO. A-5235-12T3
07-09-2014
ELITA KANE, Plaintiff-Respondent, v. THE ZONING BOARD OF THE TOWNSHIP OF CEDAR GROVE, Defendant-Appellant.
Larry I. Wiener argued the cause for appellant. Andy S. Norin argued the cause for respondent (Drinker Biddle & Reath LLP, attorneys; Mr. Norin, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Manahan.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2522-11.
Larry I. Wiener argued the cause for appellant.
Andy S. Norin argued the cause for respondent (Drinker Biddle & Reath LLP, attorneys; Mr. Norin, of counsel and on the brief). PER CURIAM
Defendant, the Zoning Board of the Township of Cedar Grove (the Board) appeals from a judgment of the Law Division which reversed the Board's denial of plaintiff Elita Kane's variance application. We affirm.
Plaintiff owns property located in Cedar Grove in a residential zone. The property consists of approximately 3.75 acres. Plaintiff and her late husband purchased the property in 2001. The property is located at the top of a ridgeline (referred to as a "crest line" in the Zoning Code). Due to the property's topography, its use is controlled by the "Crest Line Ordinance." Cedar Grove Municipal Ordinance § 268-11.2B provides limitations on the location of structures and alterations to the surface conditions within thirty feet of the crest line. The Zoning Code also regulates the maximum amount of lot coverage and disturbed area coverage.
In 2005, plaintiff applied for a variance to allow the conversion of an existing basketball court to a tennis court. The Board granted several variances to accommodate the conversion including encroachment into the crest line buffer, lot coverage and disturbed area. A condition of the approval was there would be no further improvements to the property that would increase lot coverage or disturbance. A further condition was recordation of the resolution as a restrictive covenant. This was to limit development of the property not consistent with the resolution. The restrictive covenant was recorded in the Register's office.
In the fall of 2008, plaintiff constructed a 1,300 square foot wooden deck on the property. The deck was constructed without obtaining the necessary permits. On January 29, 2010, the construction official issued a notice of violation to the plaintiff. The notice indicated that the deck violated both the construction code and the crest line ordinance.
On June 29, 2010, plaintiff filed an application with the Board seeking a variance for the deck, pursuant to N.J.S.A. 40:55D-70(c)(1) and (c)(2). The application included a proposal for a steep slope restoration plan. Thereafter, the township engineer issued a comment letter advising the Board that a variance was required.
During the course of the hearing on the application, the plaintiff "abandoned" the hardship application pursuant to (c)(1). As such, we need not consider this basis on appeal except to note that given the prior variance, and the terms associated with that variance, the (c)(1) application would have sought to expand the dimensions of the lot coverage.
On October 12, 2010 and December 14, 2010, the Board conducted public hearings on plaintiff's application. In addition to the plaintiff, two expert witnesses testified in support of the application.
Richard Burrow, a professional engineer, testified as an expert in civil engineering. He explained that the deck was constructed over an area that was already disturbed. He further explained that 95% of the deck's total area rested atop a "rock outcrop." This area totaled 1,233 feet of the 1,300 foot deck. He noted that the deck was six feet above the grade at its highest point and described the deck as a very low-lying deck built to conform to the slope. He stated that, due to the deck's low height, it was out of view.
In regard to disturbance, Burrow maintained there was no disturbance to the land as a result of the construction of the deck. He testified that the deck's supports touched rock only and did not disturb the soil area.
Burrow further testified that there was no problem with stormwater absorption due to the fact that the deck rested almost entirely on a rock outcrop and was open decking, allowing water to flow through the gaps between the boards.
Finally, Burrow discussed the re-vegetation plan of plaintiff's application. He noted that plaintiff would re-vegetate the area with native meadow-seed mix and native woody shrubs which would help with erosion and stormwater absorption issues along the slope. The re-vegetation would stabilize the soil.
Gregory Woodruff testified as an expert in planning. He said that the purpose of the crest line ordinance was to protect the character and integrity of the crest line areas of the Township, to reduce stormwater runoff and erosion potential, and to respect the natural terrain of the area. He also noted that the ordinance was intended to protect the afforded predominant views.
Woodruff addressed the issue of whether the application satisfied the negative and positive criteria for grant of a variance. Regarding the negative criteria, Woodruff stated that there was no substantial detriment to the public good or impairment to the zoning ordinance since the deck was not prominent and did not rest on an area with high erosion potential. Regarding the positive criteria, Woodruff noted that the re-vegetation component of the application furthered the crest line ordinance's purposes. According to Woodruff, the plantings would be hydroseeded and, therefore, no soil would be added to the slope.
Woodruff also addressed the plaintiff's satisfaction of the negative criteria within the lot-coverage context. He opined there was no substantial detriment to the public good or impairment to the zoning ordinance due to the water flow continuing naturally as it did prior to the construction of the deck.
Woodruff agreed with Burrow's assessment that the viewshed impact was minimal. He provided support for his testimony through production of a number of photographs taken of the property from various viewpoints demonstrating that the deck was not visible by surrounding properties.
Woodruff also opined that the deck's construction, notwithstanding the 2005 resolution's prohibition of "further lot disturbances," did not disturb the lot. Assuming the deck had yet to be built, Woodruff testified that its current location would still be appropriate. He offered a similar opinion as to the size of the deck.
At the continuation of the hearing on December 14, Woodruff presented and discussed a number of aerial photographs of the property taken in the period from 1987-2010. These photographs were produced to demonstrate any "clearance" on the property predated the construction of the deck.
Woodruff addressed the applicable sections of Municipal Land Use Law (MLUL). Specifically, he cited N.J.S.A. 40:55D-2(a), (b), (e), and (j), factors regarding the "intent and purpose" of the MLUL. It was Woodruff's opinion that the proposal furthered subsection (a) through stabilization of the slope from its current condition while not impacting the site's physical or aesthetic qualities. He added that the re-vegetation plan furthered subsection (b) relative to issues that might affect the slope area, including landslides. He explained that the application furthered subsection (e) due to its preservation and enhancement of the environment. He also explained that the application furthered subsection (j) because it promoted proper use of the land and furthered the goal of not promoting the improper use of land through stabilization of the sloped area.
The plaintiff testified that she and her late husband purchased the property in 2001. She conceded that the deck was constructed without obtaining a permit. According to plaintiff, the deck was constructed for the purpose of providing her wheelchair-confined husband with the opportunity to view the New York skyline.
At the conclusion of the December 14 hearing, the Board voted 3-2 to deny plaintiff's application. The Board entered a resolution memorializing its decision on February 8, 2011.
On March 22, 2011, plaintiff filed an action in lieu of prerogative writs challenging the Board's decision. On April 16, 2013, the matter was heard in the Law Division. Subsequent thereto, the Law Division judge entered an order on May 21, 2013 granting plaintiff's variance application.
On June 13, 2013, the Law Division judge conducted a telephonic case status conference to address the Board's request that it be permitted to attach conditions to the application's approval. The judge entered an amended order granting the variance on June 28, 2013. The court ordered the Board to enter a resolution granting the variance but permitted the Board to include "reasonable and appropriate conditions" that were "supported by substantial evidence in the record" established at the hearings. On July 2, 2013, the Board filed a notice of appeal relative to the May 21, 2013 order. On July 18, 2013, the Board filed an amended notice of appeal appealing the trial court's June 28, 2013 amended order.
On appeal, the Board argues that, contrary to the Law Division judge's findings, it did undertake a "full consideration of the documentary record and the testimony given in support of [respondent's] variance application." The Board argues that respondent's deck "did not make good planning or zoning sense," and instead only served respondent's interests.
"[W]hen reviewing the decision of a trial court that has reviewed municipal action, we are bound by the same standards as was the trial court." Fallone Props., LLC v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004) (citations omitted). "[W]hen a party challenges a zoning board's decision through an action in lieu of prerogative writs, the zoning board's decision is entitled to deference." Kane Props., LLC v. City of Hoboken, 214 N.J. 199, 229 (2013). "The questions on appeal are only whether or not the action of the board was arbitrary, capricious or patently unreasonable, and whether it acted properly under the statute, that is, in accordance with the statutory standard." Paruszewski v. Twp. of Elsinboro, 154 N.J. 45, 54-55 (1998) (citation omitted).
The courts "will give substantial deference to findings of fact, [however,] it is essential that the board's actions be grounded in evidence in the record." Fallone, supra, 369 N.J. Super. at 562. Legal determinations are not entitled to presumption of validity and are subject to de novo review. Wyzykowski v. Rizas, 132 N.J. 509, 518-20 (1993).
In its memorializing resolution, the Board concluded, "[T]he relief requested by the [plaintiff] cannot be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the Zone Plan and Zoning Ordinance[.]" The resolution summarized the testimony and documentary evidence presented to the Board in support of the application. The Board found that plaintiff was seeking relief both from this zoning ordinance and "to exscind or rescind" the restrictive covenant. The Board, therefore, "analyzed the within matter from two perspectives."
Concerning the relief sought from the zoning ordinance, the Board found, "[T]he [plaintiff] clearly fell far short of the required proofs to justify relief from the ridgeline and impervious coverage and parameters as set forth in the zoning ordinance." The Board also found that the plan did not benefit the community as the proposed stabilization of the "steep slopes on this particular lot . . . is clearly a reach." The Board concluded that the plaintiff did not meet the burden of proof for a (c)(2) variance.
The Board added that there was an insufficient basis in fact or in law to excise the restrictive covenant despite plaintiff's "disingenuous" position that the deck did not violate the covenant, zoning ordinance or construction code as an intensification of use.
Under MLUL, N.J.S.A. 40:55D-1 to -163, a municipality's Board of Adjustment is authorized to grant bulk zoning variances if the required criteria are met. N.J.S.A. 40:55D-70(c). Plaintiff argues that she was entitled to the bulk variances sought pursuant to (c)(2), which provides:
[W]here in an application [for a variance] or [an] 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, [the board is authorized to grant] a variance to allow departure from regulations[.]
[N.J.S.A. 40:55D-70(c)(2).]
The negative criteria of N.J.S.A. 40:55D-70 must also be met. That is, the variance 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.
With respect to a (c)(2) application, the Supreme Court has said:
By definition, then no 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. The focus of a c(2) case, then, will be not on the characteristics of the land that, in light of current zoning requirements, create a "hardship" on the owner warranting a relaxation of standards, but on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community.However, "[a] 'c(2)' variance is not necessarily unavailable because the applicant has created the condition which requires the variance." Green Meadows at Montville, LLC v. Planning Bd. of Montville, 329 N.J. Super. 12, 22 (App. Div. 2000).
[Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 563 (1988) (emphasis omitted.)]
A (c)(2) variance then is not based upon the "hardship" but "requires a balancing of the benefits and detriments from the grant of the variance." Bressman v. Gash 131 N.J. 517, 523 (1993), citing Kaufmann, supra, 110 N.J. at 558-60. The analysis focuses on advancing the purposes of the MLUL and the benefits to the community.
In sum, the application for a variance under (c)(2) requires:
(1) [That it] relates to a specific piece of property; (2) that the purposes of the Municipal Land Use Law would be advanced by a deviation from the zoning ordinance requirement; (3) that the variance can be granted without substantial detriment to the public good; (4) that the benefits of the deviation would substantially outweigh any detriment and (5) that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance.
[William M. Cox, New Jersey Zoning and Land Use Administration, § 6-3.3 at 143 (Gann 2008) (citing Ketcherick v. Bor. of Mountain Lakes, 256 N.J. Super. 647, 657 (App. Div. 1992); Green Meadows, supra, 329 N.J. Super. at 22).]
A (c)(2) variance applicant must identify the purposes of the MLUL that will be advanced by granting the requested variance. Here, plaintiff argued that the application advanced the following purposes of the MLUL:
a. To 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;
b. To secure safety from fire, flood, panic and other natural and man-made disasters;
e. To promote the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, communities and regions and preservation of the environment;
j. To promote the conservation of historic sites and districts, open space, energy resources and valuable natural resources in the State and to prevent urban sprawl and degradation of the environment through improper use of the land.
[N.J.S.A. 40:55D-2(a), (b), (e), (j).]
In Kaufmann, the Court ruled that there is sufficient public benefit to warrant a (c)(2) variance, when it "effectuate[s] the goals of the community as expressed through its zoning and planning ordinances." Kaufmann supra, 110 N.J. at 564. The Court said, "[A] c(2) variance stands if, after adequate proofs are presented, the board without arbitrariness concludes that the harms, if any, are substantially outweighed by the benefits." Id. at 565.
In this matter, the Board found that plaintiff's proofs were inadequate as to both the negative and positive criteria. The finding was made notwithstanding a record of uncontroverted proof that little or no detriment would ensue and that the benefits to the public outweighed any detriment to the surrounding properties or to the MLUL. The unrefuted expert testimony established the following. The deck is almost entirely constructed on rock. No trees were removed when the deck was built. There was no grading or fill. The deck is low lying and conforms to the existing rock area. The structure does not stick out of the landscape or interfere with the view of the crest line. The proposed restoration plan would curtail erosion, surface water runoff and soil slippage. The plan would stabilize the soil on the slope. With the restoration plan, the deck would advance the goals of the MLUL.
Normally, we would not disturb a board's rejection of expert testimony. While expert testimony is often presented to a Zoning Board, the board is not bound to accept the testimony. See El Shaer v. Planning Bd. of Lawrence, 249 N.J. Super. 323, 330 (App. Div.), cert. denied, 127 N.J. 546 (1991). However, here, the reasons for the board's rejection of the expert testimony were not articulated in the resolution. Given the absence of reasons supporting the board's rejection, we will not defer to its finding.
Plaintiff argues that the Board's determination was arbitrary and capricious since it was not supported by substantial evidence in the record. Plaintiff also argues the Board's decision was "conclusory." We agree.
While ordinarily we do not disturb discretionary decisions of local boards, the Board's decision herein was clearly not supported by "substantial evidence in the record." Lang v. Zoning Bd. of Adjustment, 160 N.J. 41, 58-59 (1999). Nor was the decision "grounded in evidence in the record." Fallone, supra, 369 N.J. Super. at 562.
Kaufmann, supra, 110 N.J. at 566, noted, "[T]he key to sound municipal decision-making is a clear statement of the reasons for the grant or denial of a variance." The Board failed to engage in this manner of decision-making. For example, the resolution lacked even a general averment that the application was contrary to the MLUL.
Furthermore, the record supports the finding that the construction of the deck did not violate either the "lot coverage" or "disturbed area coverage" proscribed by the ordinance. The deck was constructed over an area previously determined to be "disturbed." The construction did not require the removal, grading or disruption of the rock surface. To the extent that the footings for the deck increased lot coverage, it was by 0.02%. The natural absorption of stormwater was not impeded. In sum, the Board's denial of the variance based upon violations of "lot coverage" and "disturbed area coverage" is unsupported.
In reaching our decision, we do not take issue with the motive of the Board. The Board was concerned about the impact of the deck when considered with the purpose of the crest line ordinance, i.e., slope protection. Rather, we take issue with the validity of the Board's reasons. The Board failed to appreciate that it was required to review plaintiff's application through the lens of the applicable law by appropriate evaluation and articulation of the negative and positive criteria. In the absence of the requisite review, we hold as a matter of law that the Board's denial of the variance was arbitrary, capricious and unreasonable.
As well, we reject the Board's argument that the restrictive covenant, standing alone, is reason for denial of the application. We do not find the restrictive covenant herein to be analogous to the restrictive covenant in Soussa v. Denville Twp. Planning Bd., 238 N.J. Super. 66 (App. Div. 1990). In Soussa, there was an independent restriction. Id. at 67. Here, the restrictive covenant and its recordation was to provide notice to future owners of the property. The owners would be prohibited from future development which would increase lot coverage or disturbed area without first seeking approval from the Zoning Board.
Finally, we reject the Board's argument that the matter should be subject to a remand to the Board. We agree with the Law Division judge's determination that there is no basis in fact or in law for a remand. As we have noted, if "the record clearly compels a reversal of the Board's action, a remand is not appropriate." N.Y. SMSA, L.P. v. Bd. of Adjustment of Twp. of Weehawken, 370 N.J. Super. 319, 335 (App. Div. 2004).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION