BARRY R. LEWIS VS. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF ROCKAWAY (L-0273-17, MORRIS COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1033-17T2
BARRY R. LEWIS,
Plaintiff-Appellant,
v.
BOARD OF ADJUSTMENT
OF THE TOWNSHIP OF
ROCKAWAY, DONALD
STEINBRENNER and BETH
STEINBRENNER,
Defendants-Respondents.
____________________________
Submitted December 4, 2018 – Decided January 17, 2019
Before Judges Geiger and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-0273-17.
Barry R. Lewis, Jr., appellant pro se.
Brach Eichler LLC, attorneys for respondents Donald
Steinbrenner and Beth Steinbrenner (Susan R.
Rubright, on the brief).
Spector & Dimin, PA, attorneys for respondent Board
of Adjustment of the Township of Rockaway, join in
the brief of respondents Donald Steinbrenner and Beth
Steinbrenner.
PER CURIAM
Plaintiff Barry R. Lewis appeals from a September 18, 2017 Law Division
order entering judgment in favor of defendants Board of Adjustment of the
Township of Rockaway (Board), Donald Steinbrenner, and Beth Steinbrenner,
in this action in lieu of prerogative writs contesting the approval of an
application for development to construct a single-family home. We reverse and
remand this matter to the Board for adoption of an amended resolution setting
forth adequate findings of fact and conclusions of law.
Plaintiff and the Steinbrenners own adjoining parcels in Rockaway.
Plaintiff's parcel is developed by a single-family home. The Steinbrenners'
parcel is vacant.
The Steinbrenners' parcel was created through a minor subdivision
approved by a prior resolution the Board adopted, as amended, in December
2007.1 The resolution also approved a use variance and associated dimensional
1
Plaintiff also challenged the original prior resolution that created the
Steinbrenners' parcel by action in lieu of prerogative writs. The Board was
required to adopt an amended resolution following a remand by the Law
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variances for premises designated as Block 20901, Lots 66 and 67 and Block
20903, Lots 42 and 43 (the Epstein/Kaminow Resolution). The
Epstein/Kaminow Resolution transformed one parcel consisting of two wholly
interior lots (Block 20903, Lots 42 and 43) and one parcel consisting of two
wholly lakefront lots (Block 20901, Lots 66 and 67) into two parcels both
consisting of an interior and lakefront portion. Interior Lot 42 is tied to lakefront
Lot 66. Interior Lot 43 is tied to lakefront Lot 67. The practical effect of the
Epstein/Kaminow Resolution was to allow for the construction of a residence
on each of the interior lots and a boathouse on each of the lakefront lots.
The Steinbrenners are the current owners of interior Lot 43 and lakefront
Lot 67, which they purchased from the Epsteins. In accordance with the
Epstein/Kaminow Resolution, the Steinbrenners now wish to construct a single-
family home on Lot 43, which is located in a R-13 residential district.
On June 30, 2016, the Steinbrenners submitted an application for
development to the Board for construction of a single-family home. The
proposed development requested numerous dimensional variances pursuant to
N.J.S.A. 40:55d-70(c)(1), and a waiver.
Division because the original resolution lacked the required findings of fact and
conclusions of law.
A-1033-17T2
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More specifically, the application requested variance relief from
Ordinance 54-30.29.e.5, which requires a minimum front yard depth, and
Ordinance 54-30.10.i, which outlines how much vegetation can be stripped from
a lot during the construction process. The application also requested a waiver
from Ordinance 54-29.13(d)(1), which requires certain slopes to direct water
away from buildings.
On August 2, 2016, the Board heard testimony on the Steinbrenner's
application at a public meeting. On November 15, 2015, the Board heard
additional testimony on the Steinbrenners' revised application and voted to
approve the application. The Board adopted the Steinbrenner Resolution
memorializing its approval of the application on December 20, 2016. On
December 28, 2016, notice of the Steinbrenner Resolution, intended to be
compliant with N.J.S.A. 40:55D-10(i), was published; however, the block
number was incorrectly listed as 20904, rather than 20903.
Ordinance 54-30.29.e.5 requires a minimum front yard of the lesser of
either forty feet or the average of the two abutting lots in R-13 districts. Under
Ordinance 54-30.29.e.5, the Steinbrenners were required to have a minimum
front yard setback of twenty-four feet. The Steinbrenners ultimately requested,
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and the Board granted approval in the Steinbrenner Resolution for, a front yard
setback of zero feet.
Ordinance 54-30.10.i.3 prohibits stripping more than thirty percent of the
vegetation from slopes of between fifteen and twenty-five percent grade in R-
13 districts. In the absence of a variance, the Steinbrenners were allowed to
strip 488 square feet of vegetation in this category. The Steinbrenners requested,
and the Board granted approval in the Steinbrenner Resolution for, their request
to strip 976 square feet or sixty percent of the vegetation in this category.
Ordinance 54-30.10.i.4 prohibits stripping more than fifteen percent of the
vegetation from slopes with a grade in excess of twenty-five percent in R-13
districts. In the absence of a variance, the Steinbrenners were allowed to strip
909 square feet of vegetation in this category. The Steinbrenners requested, and
the Board granted approval in the Steinbrenner Resolution for, their reque st to
strip 4,617 square feet or approximately seventy-six percent of the vegetation in
this category.
Under Ordinance 54-29.13(d)(1), unpaved areas adjacent to buildings
must be sloped to direct water away from the building at a minimum slope of
five percent for the first ten feet from the building in R-13 districts. Originally,
the Steinbrenners proposed swales be constructed approximately one foot from
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the building. However, the Steinbrenners ultimately requested, and the Board
granted approval in the Steinbrenner Resolution for, swales to be constructed
approximately one and a half feet from the building.
The Steinbrenner Resolution states the Steinbrenners propose to install
double retaining walls along both the easterly and southerly sides of the
property. It also states the inner retaining wall will have a maximum height of
six feet and that the outer southern retaining wall will be approximately five feet
from the property line shared by the Steinbrenners and plaintiff, but it is silent
as to the height of the outer retaining wall.
According to the November 4, 2016 memorandum from Dewberry
Engineers, Inc. to the Board (the Dewberry memorandum), the proposed outer
retaining wall is upwards of nine feet in height and the outer southern retaining
wall is nine and a half feet from the foundation of plaintiff's house. The
Steinbrenners are to submit a professional engineering certification for the
proposed retaining walls, which shall be reviewed by plaintiff, and Peter Black,
the Board's engineer, shall review the structural plans prior to construction.
Plaintiff filed a complaint in lieu of prerogative writs demanding
judgment reversing the findings of the Board and directing the Board to deny
the application for variances. Plaintiff also demanded an award of attorney's
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fees and costs even though he represented himself. Plaintiff challenged the
Board's approval on the following grounds: 1) the Steinbrenner Resolution and
newspaper publication failed to correctly identify the property that was the
subject of the application; 2) the Board failed to make the necessary findings to
support the c(1) variances granted; 3) the resolution failed to comply with the
requirements of N.J.S.A. 40:55D-10(G); 4) the Steinbrenners failed to present
adequate evidence for the variance relief granted; and 5) the Board
impermissibly delegated the issue of substantial detriment to the public good to
the Board's engineer.
The Law Division judge heard oral argument and later issued a judgment
and written statement of reasons in favor of defendants. After recounting the
facts and procedural history of both the Steinbrenners' application and the
Epstein/Kaminow Resolution, the judge engaged in the following analysis:
Here, the Steinbrenners presented various experts at
two public hearings, and revised their Application in
order to accommodate concerns brought up at the first
public hearing. Specifically, the Steinbrenners changed
the slope of their driveway in order to conform with the
other driveways in the area. Further, the Steinbrenners
moved the footprint of their proposed home ten feet to
the left in order to move further from [p]laintiff's
property line. Here, two engineers testified as to the
Steinbrenners' application, their own engineer, Mr.
Gloede, and [the Board's] engineer, Mr. Black. The
[Board] then considered the experts' opinions and
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necessary "competent and credible evidence" in making
their decision to grant the variances at issue.
Moreover, the Steinbrenners demonstrated that
their [p]roperty met the positive criteria for a 'c'
variance, pursuant to N.J.S.A. 40:55D-70(c)(1).
Specifically, the [p]roperty is comprised of two lots
across the street from one another, and both lots have
considerable slopes. Expert testimony supports the
finding that the [p]roperty has "exceptional topographic
condition[s]." Further, the Steinbrenners met the
necessary negative criteria by establishing there would
be no substantial detriment to the public good and their
variances will not substantially impair the intent and
purpose of the zone plan and zoning ordinance. Indeed
[to] the extent there may be a danger of disturbance to
[plaintiff's] property, such danger was remedied by the
requirement that any excavation and/or retaining wall
would be subject to a "professional engineering
certification." The prior property owners, the Epsteins,
had a planner who opined that the topographic
conditions of the [p]roperty as a split lot "makes the lot
suitable for the neighborhood and will not impair the
intent and purpose of the zone plan or be a detriment to
the public good." Further, the split lot allows for
building on the interior lot as consistent with the
neighborhood and in compliance with the zoning plan.
Plaintiff fails to make a showing of abuse of discretion,
as the decision of [the Board] is supported by expert
testimony and necessary consideration by [the Board]
of the relevant positive and negative criteria in granting
variances.
[(citations omitted).]
This appeal followed. Plaintiff argues the Law Division judge erred,
claiming the action of the Board was arbitrary and capricious because: 1) the
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resolution is deficient on its face by failing to make the necessary findings to
support the c(1) variances granted; 2) the resolution is substantively deficient
and fails to comply with N.J.S.A. 40:55D-10(G) by failing to set forth adequate
factual findings and conclusions of law; 3) the applicants failed to present
substantial, competent evidence to prove the elements required to obtain the
variances sought; 4) the Board impermissibly delegated its obligation to
determine the positive and negative criteria to its professionals, and
impermissibly delegated the issue of substantial detriment to the public good to
its engineer for post-hearing determination; and 5) the applicants failed to
present competent, credible evidence to support relief under N.J.S.A. 40:55D-
10(G), warranting a reversal without remand for further proceedings. Plaintiff
additionally argues the Law Division judge erred by independently reviewing
the record and reaching his own findings, in part based on improper
considerations.
"Our standard of review for the grant or denial of a variance is the same
as that applied by the Law Division." Advance at Branchburg II, LLC v.
Branchburg Tp. Bd. of Adjustment, 433 N.J. Super. 247, 252 (App. Div. 2013)
(citing 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."
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Branchburg, 433 N.J. Super. at 252. However, a zoning board's legal
determinations are subject to de novo review. Jacoby v. Zoning Bd. of
Adjustment, 442 N.J. Super. 450, 462 (App. Div. 2015). "[C]ourts ordinarily
should not disturb the discretionary decisions of local boards that are supported
by substantial evidence in the record and reflect a correct application of the
relevant principles of land use law." Lang v. Zoning Bd. of Adjustment, 160
N.J. 41, 58-59 (1999).
"[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). "Courts give
greater deference to variance denials than to grants of variances, since variances
tend to impair sound zoning." Med. Ctr. at Princeton v. Twp. of Princeton
Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001); see also
Branchburg, 433 N.J. Super. at 253. "[T]he burden is on the challenging party
to show that the zoning board's decision was 'arbitrary, capricious, or
unreasonable.'" Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (quoting
Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965)).
The New Jersey Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to
-136, imparts authority to boards of adjustment for the grant of variances when
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(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
[N.J.S.A.40:55D-62] 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-70(c)(1).]
However, "[n]o variance or other relief may be granted . . . , 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 applicant bears
the burden of proving both the positive and negative criteria." Ten Stary Dom.
P'ship v. Mauro, 216 N.J. 16, 30 (2013).
N.J.S.A. 40:55D-10(g) "requires a municipal agency to reduce each
decision on any application to writing in the form of a resolution that includes
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findings of fact and conclusions of law." N.Y. SMSA, LP v. Bd. of Adjustment,
370 N.J. Super. 319, 332 (App. Div. 2004). To that end,
[t]he factual findings set forth in a resolution cannot
consist of a mere recital of testimony or conclusory
statements couched in statutory language. Rather, the
resolution must contain sufficient findings, based on
the proofs submitted, to satisfy a reviewing court that
the board has analyzed the applicant's variance request
in accordance with the statute and in light of the
municipality's master plan and zoning ordinances.
Without such findings of fact and conclusions of law,
the reviewing court has no way of knowing the basis for
the board's decision.
[Id. at 332-33 (citations omitted).]
Thus, resolutions that state their conclusions in a "'summary fashion'" have
"repeatedly been recognized as deficient by the courts." Id. at 333.
Moreover, the reviewing court should not incorporate statements
contained in the hearing transcripts and made by individual board members into
the resolution. Ibid. "The statements of individual Planning Board members,
'represent informal verbalizations of the speaker's transitory thoughts, they
cannot be equated to deliberative findings of fact. It is the Resolution, and not
board members' deliberations, that provides the statutorily required findings of
fact and conclusions.'" Rocky Hill Citizens for Responsible Growth v. Planning
A-1033-17T2
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Bd. of Borough of Rocky Hill, 406 N.J. Super. 384, 413 (App. Div. 2009)
(quoting N.Y. SMSA, 370 N.J. Super. at 334).
Here, after laying out the Steinbrenners' requested variances and waivers,
the Steinbrenner Resolution states:
7. At the public meeting on November 16, 2016, the
applicant was represented by Susan Rubright,
Esq., of the law firm of Brach Eichler, LLC, who
introduced the first witness, Mr. Gloede, a
professional engineer located in Oakridge, New
Jersey, who testified that the property is currently
a vacant lot; that the applicant will be
constructing new retaining walls along the north,
east and south sides of the proposed residential
dwelling; that the landscaping will remain the
same; and the applicant will comply with all of
the Engineer's comments and will put a fence on
top of the retaining wall, as discussed.
8. The next witness called by the applicant was
Peter Hestevold, who is the general contractor on
the project, who informed the Board that the
retaining walls will be designed by a structural
engineer.
9. The final witness called was Jeff McEntee, the
applicant's architect, who discussed with the
Board all of the architectural aspects of the
proposed dwelling, deck and porch.
10. The application has been reviewed by the
township professionals and their reports and
findings are incorporated herein as though set
forth herein at length verbatim.
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11. It is a finding of the Rockaway Township Zoning
Board of Adjustment that the application for
various "c" variances and waiver can be granted
without substantial detriment to the public good
and without impairing the intent and purpose of
the Township Zoning Ordinance.
The Steinbrenner Resolution makes no mention of the positive criteria.
The factual findings set forth in the Steinbrenner resolution amount to no
more than a cryptic summary of the testimony of three of the four witnesses
presented by the applicants and a single conclusory statement about the negative
criteria that the Board has "couched in the conclusionary language of the
statute." Harrington Glen, Inc. v. Bd. of Adjustment of Leonia, 52 N.J. 22, 28
(1968). Thus, "[a]t a minimum, the legal insufficiency of the resolution in this
case warrants a remand to the Board for reconsideration and specific factual
findings." N.Y. SMSA, 370 N.J. Super. at 335 (citing Smith v. Fair Haven
Zoning Bd. of Adjustment, 335 N.J. Super. 111, 123 (App. Div. 2000)).
In addition, the discrepancies between the Steinbrenner Resolution, the
reports prepared by the Board's professionals, and the Law Division judge's
statement of reasons also warrant remand.
Ordinance 54-30.10.i.2 prohibits stripping more than forty percent of the
vegetation from slopes with a grade of less than fifteen percent in R-13 districts.
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In the absence of a variance, the Steinbrenners would only be allowed to strip
200 square feet of vegetation in this category from interior Lot 43.
There is no mention of Ordinance 54-30.10.i.2 in the Steinbrenner
Resolution or the three memoranda prepared by Burgis Associates, Inc., the
community planner hired by the Board (the Burgis memoranda). Ordinance 54-
30.10.i.2 is mentioned by Dewberry. However, according to the Dewberry
memorandum, while the Steinbrenners originally sought permission to strip
5,586 square feet of vegetation in this category, the revised plans propos e to
strip 5,593 square feet of vegetation in this category. Nevertheless, a fair
reading of the judge's statement of reasons gives the impression the
Steinbrenners requested, and the Board approved, the Steinbrenners' request to
strip 5,586 square feet of vegetation.
The Steinbrenner Resolution is also inconsistent on its face. It states
Gloede testified "that the landscaping will remain the same." However, the
Steinbrenners sought permission to strip thousands of square feet of vegetation
from Lot 43. Since landscaping can be defined as modifying an area by altering
the plant cover,2 the landscaping on Lot 43 will not remain the same.
2
https://www.merriam-webster.com/dictionary/landscaping.
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Finally, unless Lot 43 can qualify as an "existing platted substandard
lot[]," the Steinbrenner Resolution is deficient for its failure to consider or grant
side yard setback relief. The Steinbrenner Resolution states "the southerly side
yard setback has been increased from [eight] feet to [eighteen] feet, while the
northerly side yard setback has been reduced from [sixteen] feet to [six] feet."
Ordinance 54-30.29.e.6 specifies the minimum side yard depth in R-13 districts
and requires:
two (2) side yards, and no side yard shall be less than
ten (10) feet; provided, however, on existing platted
substandard lots, the total width of the two (2) side
yards shall not be less than fifteen (15) feet, and no side
yard shall be less than five (5) feet. Notwithstanding
the above, no building shall be permitted to be erected
on a substandard lot if such building would be closer
than fifteen (15) feet to an existing building on an
abutting lot. [3]
Yet, there is no mention of a variance of this requirement imposed by Ordinance
54-30.29.e.6 in the Steinbrenner Resolution. Nor is it mentioned in the Law
Division judge's statement of reasons or the Dewberry memoranda. The only
references to the side yard requirements are in the Burgis memoranda, and those
are mere generalized references to the Steinbrenner's need to ensure that the side
3
Land Use and Dev. Regulations of the Twp. of Rockaway, 273 (Nov. 1, 2014),
http://www.rockawaytownship.org/DocumentCenter/View/1271/Chapter-LIV-
Land-Use-and-Development-PDF-1648-KB (last visited Jan. 2, 2019).
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yards satisfy the requirements for R-13 districts. Notably, both the Burgis
memoranda and the Steinbrenners' plans seem to be treating this as an existing
platted substandard lot. However, to qualify as an "existing platted substandard
lot," at a minimum, Lot 43 would have needed to be a buildable lot before
August 1999.4 Since Lot 43 was created by subdivision from Lot 42 in the
Epstein/Kaminow Resolution in 2007, dual ten foot side yards are required.
We are constrained to reverse the judgment entered by the Law Division,
vacate the Steinbrenner Resolution, and remand this matter to the Board for
adoption of an amended resolution containing the statutorily mandated findings
of fact and conclusions of law based on the proofs submitted. We do not retain
jurisdiction.
In light of our ruling, we do not reach the additional arguments raised by
plaintiff.
Reversed and remanded.
4
Land Use & Dev. Regulations of the Twp. of Rockaway at 162.
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