BRIAN KIMMINS VS. BOROUGH OF BRIELLE PLANNINGÂ Â BOARD(L-2949-15, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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 internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1394-16T3
BRIAN KIMMINS and PATRICIA
KIMMINS, his wife, JOSEPH
NATOLI, and JANICE NATOLI,
his wife, STEVEN HEGNA and
METTE HEGNA, his wife,
CHRISTIAN SIANO and CARRIE
SIANO, his wife, DANIEL
KEATING and DIANE KEATING,
his wife, EDWARD BREHM and
JODI BREHM, his wife,
CHRISTOPHER KAISAND and
KELLY KAISAND, his wife,
and PETER PETRACCO and MAY
PETRACCO, his wife,
Plaintiffs-Respondents,
v.
BOROUGH OF BRIELLE PLANNING
BOARD,
Defendant,
and
MICHAEL and LORI CENTRELLA,
Defendants-Appellants.
________________________________
Argued September 12, 2017 – Decided November 15, 2017
Before Judges Hoffman and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
2949-15.
C. Keith Henderson argued the cause for
appellants (C. Keith Anderson & Associates,
attorneys; Mr. Henderson, on the briefs).
Edward F. Liston, Jr. argued the cause
respondents.
PER CURIAM
Defendants Michael and Lori Centrella appeal from the October
28, 2016 Law Division order vacating the Borough of Brielle
Planning Board (Board) resolution, which granted defendants'
application to divide their existing single lot into three lots,
along with ancillary variance relief from municipal zoning
ordinances. We affirm.
I.
The following facts are relevant to our review. Defendants
purchased the subject property in 2001. Slightly larger than one
acre at 46,618 square feet, and 185.45 feet wide, the cork-shaped
property lies at the corner of two roads – one to the west and one
to the south, and adjacent to the Manasquan River to the east.
When defendants purchased the property, it contained a "main
dwelling," "a guest cottage," "a two-car garage," and "a large
swimming pool." Within a year of the purchase, defendants
demolished the main dwelling and swimming pool. In 2012, Hurricane
2 A-1394-16T3
Sandy severely damaged the guest cottage, causing defendants to
move out of the cottage for almost one year.
At the time of the Board's proceedings, defendants lived in
the guest cottage, which sits 2.57 feet from the northern property
line. Upon finalization of their subdivision plan, defendants
intended to build a house on the middle lot and tear down the
guest cottage.
In November 2014, defendants applied to the Board for approval
to divide their property into three lots; notably, their
application required two variances. The Board addressed
defendants' application in a hearing that extended over three
Board meetings.
On March 10, 2015, the first hearing date, defendants
presented testimony from two expert witnesses. The first expert,
a professional engineer and planner, testified the property needed
a "pre-existing nonconforming" variance for the "guest cottage"
because it sits 2.57 feet from the northern property line. He
also said defendants' plan required a variance because the southern
lot would measure only 34.23 feet wide, but the ordinance required
a minimum sixty-foot width; the other two lots would conform,
measuring 75.14 and 75.76 feet wide. He further noted the three
lots would nevertheless satisfy the ordinance's total-area
requirements.
3 A-1394-16T3
Defendants' second expert, a licensed professional planner,
addressed defendants' application for a variance under N.J.S.A.
40:55D-70(c)(1), which authorizes a board of adjustment to grant
a variance for "exceptional and undue hardship." He explained
defendants' plan would create
three lots which fully conform with the
exception of the fact that there is a
technical lot width variance on the largest
lot, the corner lot, . . . where if . . . you
measure the lot width at the setback[,] it's
. . . a little over 34 feet, and the ordinance
requires 60 [feet]. But then when you look
at the rest of the parcel, clearly, that
parcel is substantially large. It's a very
large building envelope on it. So it's
clearly a lot that would be envisioned by your
ordinance to be a buildable building lot.
He added, "[I]t's much more consistent with the character of the
zone than . . . what could be done with a fully conforming
subdivision." He therefore concluded, "[T]here is a practical and
undue hardship that is associated with the configuration of the
lot that inhibits the extent to which [defendants] can use the
property."
The expert then discussed the application for a variance
under N.J.S.A. 40:55D-70(c)(2), which authorizes granting a
variance when "the benefits of the deviation would substantially
outweigh any detriment." He asserted defendants' plan did not
have any "substantial negative impacts." He explained the three
4 A-1394-16T3
lots would "be very consistent with the character of the other
lots in this zone." He added that the plan would eventually get
rid of defendants' nonconforming "guest cottage," and would
further the purposes of Municipal Land Use Law (MLUL), N.J.S.A.
40:55D-2.
At the conclusion of the testimony of defendants' second
expert, the Board opened the meeting to "any members of the public
[who] have questions." The Board did not inquire whether anyone
wanted to present any testimony or evidence regarding the
application. Nor did the Board announce the closure of the
evidentiary portion of the hearing. One member of the public
asked defendants' second expert some questions, but none of any
relevance to this appeal. The chairperson then said, "[W]e have
to open up for public comments[,] and there's a lot of people
here. I just don't feel like rushing people."1 He consequently
adjourned the proceedings.
On April 14, 2015, the second hearing date, plaintiffs
attended with their attorney, who advised the Board that he
intended to have a public planner testify on plaintiffs' behalf.
The Board's chairperson responded, "This is the open public
1
The record suggests the Board follows a general rule of
allocating forty-five minutes to an application; if not completed,
the Board adjourns the matter to their next meeting date.
5 A-1394-16T3
meeting. There's no . . . section here for you to call your
planner. The other [section,] that was closed at the lasting
meeting. It was opened for public comment[,] and the comment was
on the testimony that was given prior." Plaintiffs' attorney
repeated his request to have plaintiffs' public planner expert
testify. The chairperson replied, "This is the public portion.
It's for public comment. The hearing portion of it was closed at
the last meeting. Everybody was noticed. Nobody showed up . . .
with a planner to oppose this."
The attorney representing defendants then stated:
What this Board may not be aware of[,] and
what [plaintiffs' attorney] may not be aware
of, too, is that the [o]bjectors had an
attorney here last time. There was an
attorney[,] [i]ntroduced himself, told me he
was representing the [o]bjectors, and nothing
was said. And so it is [not] as if they didn't
have an opportunity before it was closed. It
isn't as if they weren't represented by
counsel. Counsel chose, for whatever reason,
not to make an appearance before the Board.
He was here[,] and he introduced me as having
represented the same people.
Contrary to the representation of defendants' attorney, the
transcript does not indicate the Board ever closed the evidentiary
portion of the hearing.
After plaintiffs' attorney raised an issue regarding
jurisdiction, Brielle's mayor — a member of the Board —
interjected, and said, "I'm going to make the following suggestion
6 A-1394-16T3
. . . . I cannot see jeopardizing the Borough's position at this
point . . . . I would suggest that we adjourn . . . this portion
of the hearing until next meeting to give our legal and engineering
experts time to review these questions[,] . . . and then we proceed
next month." The Board agreed and postponed the hearing "to the
next meeting."
On June 9, 2015, the third hearing date, the Board's recording
secretary asked defendants whether they wanted to present any
"testimony[,] . . . and the answer was no."2 The chairperson "then
turned to [plaintiffs' attorney] and told him the public portion
of this hearing was closed[,] and no further testimony will be
heard." The chairman then announced, "[T]he Board is asking that
each person speak for [three] minutes only so everyone who wishes
can make a comment."
Plaintiffs' attorney reiterated his request to have
plaintiffs' expert testify, and noted the expert "is a resident
of Brielle." The Board rejected the request and approved "a motion
to allow public comments only" on the testimony already given.
Plaintiffs' counsel then asked the Board to give his planner more
2
After the audio recording for the third meeting proved defective,
the parties stipulated the court and counsel "shall rely on the
official minutes of the June 9, 2015 Meeting of the Borough of
Brielle Planning Board as well as planning testimony outline of
[p]laintiff's [e]xpert."
7 A-1394-16T3
than three minutes to speak. When plaintiffs' counsel asked to
mark charts he brought for identification, the mayor responded
"there is no more testimony." Plaintiffs' counsel said his clients
"were being denied their right to present their case[,] and this
is a denial of their Constitutional rights."
The Board proceeded to hear "public comment" from eight
residents, six who opposed the application and two who spoke in
favor of it. The Board then voted on whether to approve
defendants' application, with five members voting yes and two
members voting no.
On July 14, 2015, the Board adopted a resolution granting
defendants' application for the subdivision and two variances.
The Board concluded defendants were "entitled to C1 relief due to
the features existing which uniquely affect this specific piece
of property and due to peculiar and exceptional practical
difficulties to, or exceptional and undue hardship upon the
developer of such property." The Board reasoned:
[A]s it relates to the first requested
variance, there is a preexisting conformity
[sic] as it relates to the guest house which
lawfully exists on the lot and that,
furthermore, this existing condition will be
extinguished once the guest house is
demolished per [defendants'] stated
intention. As it relates to the second
aforementioned variance, the Board notes that
because of the width of the lot adjacent to
[the western street], one would not be
8 A-1394-16T3
permitted to have four (4) conforming lots,
an issue which presents a hardship. Nothing
can be done to increase the frontage along
[the western street]. Given the unique pie-
shaped dimensions of the subject parcel, the
Board further notes [defendants have] sought
to create three (3) lots which fully conform
to the [z]oning ordinance, with the exception
of the lot width variance on . . . the corner
lot. The Board notes that it would be
impossible for [defendants] to acquire
additional property in order to meet the lot
width requirements in the R-3 Zone. The Board
concludes that there is a practical hardship
associated with the configuration of the lot
that inhibits the extent to which [defendants]
can use the property, a hardship which
satisfies the C-1 criteria. The Board further
concludes that no substantial negative impact
exists on this application sufficient to
negatively impact the surrounding properties
or the zone plan in a meaningful way. In this
instance, the Board concludes that these
properties can be developed in such a manner
as to meet all of the setback criteria, height
criteria, and in such a manner as to be
consistent with surrounding properties and
homes on properties. There is a positive
reason for nonconformity to continue. Thus,
any developed lots will meet all of the
requirements in the R-3 Zone with the
exception of the lot width variance on [the
corner lot] as previously indicated.
The Board also concluded, "[U]nder the C2 analysis[,] . . .
the positive and negative criteria were met by [defendants,] and
the granting of 'C' variance relief as set forth herein is
appropriate." It reasoned:
[W]hen taking into account the current
character of the R-3 Zone as it extends
between [the western street] and the Manasquan
9 A-1394-16T3
River, every single lot in that zone runs from
the street through to the [r]iver with
waterfront frontage, and that furthermore,
within this area there are fifteen (15) other
lots, of which seven (7) have nonconforming
lot widths. The Board determines that
approval of this application represents a
better zoning alternative for the property
which benefits the community. The Board also
points out that preliminarily[, defense
counsel] intimated [defendants] might seek a
subdivision of four (4) lots, but that since
that time [defendants have] filed an
[a]pplication seeking a minor three (3) lot
subdivision. The Board determined that having
fewer lots with a larger lot area makes better
planning sense and will not be in conflict
with the nature and character of the R-3 Zone
as presently developed.
On August 5, 2015, plaintiffs filed an action in lieu of
prerogative writs in the Law Division, challenging the Board's
decision. After conducting a hearing, the court reversed the
variances granted by the Board, and vacated "the remainder of the
Board's decision" and remanded the matter for further proceedings.
The court concluded the Board's findings relating to the variances
"are without legal or factual support." The court further
concluded, "A review of the record reveals the Board failed to
conduct the hearing consistent with principles of due process and
fundamental fairness. By denying [o]bjectors the right to present
expert testimony, the Board's decision resulted in an unfair
outcome, warranting reversal."
10 A-1394-16T3
II.
Zoning boards make quasi-judicial decisions to grant or deny
applications within their jurisdiction. Willoughby v. Planning
Bd. of Deptford, 306 N.J. Super. 266, 273 (App. Div. 1997);
Kotlarich v. Mayor of Ramsey, 51 N.J. Super. 520, 540-41, (App.
Div. 1958). The determination of a zoning board is presumed to
be valid. Kramer v. Bd. of Adjustment, 45 N.J. 268, 285 (1965);
Cell S. of N.J. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81
(2002). The court's review of a board's decision is based solely
on the record before the board. Kramer, supra, 45 N.J. at 289.
A court must not substitute its own judgment for that of the board
unless there is a clear abuse of discretion. See Cell S. of N.J.,
supra, 172 N.J. at 81. The burden is on the challenging party to
demonstrate that the board's decision was arbitrary, capricious,
or unreasonable. New Brunswick Cellular Tel. Co. v. Borough of
S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999); Smart SMR
of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J.
309, 327 (1988); Cell S. of N.J., supra, 172 N.J. at 81.
This court applies the same standards as the trial court.
Bressman v. Gash, 131 N.J. 517, 529 (1993); D. Lobi Enters., Inc.
v. Planning/Zoning Bd., 408 N.J. Super. 345, 360 (App. Div. 2009).
However, when an appeal raises a question of law, we apply a
11 A-1394-16T3
plenary standard of review. Wyzykowski v. Rizas, 132 N.J. 509,
518 (1993).
A.
We first address defendants' argument that the trial court
erred when it concluded the Board's hearing denied plaintiffs due
process. Defendants assert the Board complied with due process
throughout these proceedings.
N.J.S.A. 40:55D-10(d) states:
The testimony of all witnesses relating to an
application for development shall be taken
under oath or affirmation by the presiding
officer, and the right of cross-examination
shall be permitted to all interested parties
through their attorneys, if represented, or
directly, if not represented, subject to the
discretion of the presiding officer and to
reasonable limitations as to time and number
of witnesses.
Planning boards have the obligation "to afford . . . all objectors
a fair opportunity to address the full range of planning issues"
presented by development applications. Witt v. Borough of Maywood,
328 N.J. Super. 432, 454 (Law Div. 1998), aff'd o.b., 328 N.J.
Super. 343 (App. Div. 2000), citing N.J.S.A. 40:55D-10(d).
Although an attorney representing some plaintiffs may have
attended the first Board hearing, the transcript of the proceedings
contains no confirming evidence. During the second proceeding,
the Board refused to allow plaintiffs to present an expert on
12 A-1394-16T3
their behalf, and adjourned the proceeding without hearing any
public comments. At the beginning of the third proceeding, the
Board secretary asked defendants' attorney "if he had any new
testimony to present and the answer was no." When plaintiffs'
counsel asked to call their expert, the planning board refused to
permit it. When a planning board allows an applicant to present
testimony but denies objectors "a fair opportunity [to] present
all of their witnesses[,] [it] deprives the ultimate conclusion
of legitimacy." Witt, supra, 328 N.J. Super. at 454 (Law Div.
1998).
Before the trial court, the Board's attorney argued that the
Board had the right to "make the rules governing" its hearings,
pursuant to N.J.S.A. 40:55D-10(b). The trial court rejected this
argument, noting that:
[A] review of the record reveals that if there
were rules, they were not known to all who
appeared, as the [o]bjectors were "surprised
by the order of the proceedings."
A review of the transcript makes it perfectly
clear that the Board never advised the public
that objectors were required to sign a book
or give notice that they wished to call
witnesses in advance of the hearing.
Although the Board had the discretion to set "reasonable
limitations" as to the number of witnesses and how long they could
testify, N.J.S.A. 40:55D-10(d), it abused its discretion when it
13 A-1394-16T3
refused to allow plaintiffs to present even a single expert witness
to oppose defendants' two experts. See Witt, supra, 328 N.J.
Super. at 454 (Law Div. 1998). We agree with the trial court that
"the record reveals the Board failed to conduct the hearing
consistent with principles of due process and fundamental
fairness," warranting reversal of the Board's decision.
B.
We next address defendants' argument that the record lacks
support for the trial court's conclusion that the Board improperly
granted defendants' requested variances.
"An applicant who pursues a variance under N.J.S.A. 40:55D-
70(c)(1) must establish that the particular conditions of the
property present a hardship." Ten Stary Dom P'ship v. Mauro, 216
N.J. 16, 29 (2013); see also N.J.S.A. 40:55D-70(c)(1). "'Undue
hardship' involves the underlying notion that no effective use can
be made of the property in the event the variance is denied."
Commons v. Westwood Zoning Bd. of Adjustment, 81 N.J. 597, 605
(1980).
"Thus, [(c)(1)] variance approval require[s] the party
requesting the variance to prove both positive and negative
criteria: there must be a benefit to the community from granting
the variance that outweighs the detriment to the zoning plan, and
14 A-1394-16T3
the purposes of the MLUL must be advanced." Borough of Saddle
River v. 66 E. Allendale, LLC, 216 N.J. 115, 125 n.4 (2013).
"A 'c(1)' variance is not available to provide relief from
self-created hardship." Green Meadows at Montville, LLC v.
Planning Bd. of Montville, 329 N.J. Super. 12, 22 (App. Div. 2000).
An applicant may not claim an undue hardship when the applicant
seeks to divide the lots "in such a way as to make [the] lots
nonconforming." Ibid.If the applicant created the hardship, the planning board may
nevertheless grant a variance under N.J.S.A. 40:55D-70(c)(2).
Ibid. In Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405 N.J.
Super. 189, 198 (App. Div. 2009), this court stated that in order
to secure variance relief pursuant to N.J.S.A. 40:55D-70(c)(2),
the applicant must show:
(1) [that the variance] relates to a specific
piece of property; (2) that the purposes of
the [MLUL] 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.
[Ibid. (quoting William M. Cox, New Jersey
Zoning and Land Use Administration, § 6-3.3
at 143 (Gann 2008)).]
15 A-1394-16T3
Defendants argue their "'hardship' arises not from an act of
[their own or] their predecessors in title, but rather from the
shape of the property." (Db22) They argue a "(c)1 [d]efendant
need only prove that [the] property's unique characteristics
inhibit 'the extent' to which the property can be used." They
cite Bressman v. Gash, 131 N.J. 517, 529-30 (1993), in which our
Supreme Court concluded the applicant suffered a hardship when
"the physical characteristics of the lot both precluded
construction of a house consistent with the character of the
neighborhood and constituted a sufficient hardship to support the
grant of a c(1) variance." They also cite Lang v. Zoning Bd. of
Adjustment, 160 N.J. 41, 61 (1999), in which our Supreme Court
concluded the applicant suffered a hardship when:
it was not the size of the proposed pool, but
rather the unusual narrowness of the
applicant's property in relation to the
ordinance's minimum width and the width of
properties in the vicinity, combined with the
existing structures on the property, that
constituted the reasons why the setback and
area variances were required.
The Court further noted a "misconception about the term 'undue
hardship[]' . . . is the belief that an applicant seeking a
variance under subsection c(1) must prove that without the variance
the property would be zoned into inutility." Id. at 54. Instead,
a hardship inhibits "the extent to which the property can be used."
16 A-1394-16T3
Id. at 55 (quoting Davis Enters. v. Karpf, 105 N.J. 476, 493 (1987)
(Stein, J., concurring)).
Defendants misinterpret both Bressman and Lang. In each
case, the applicant sought a variance to build on a single lot.
They did not seek to divide a lot into nonconforming lots, as
defendants propose to do. Defendants have only established the
hardship that they cannot divide their single, useful lot into
three new lots, one of which fails to conform to Brielle's zoning
ordinances. Without the subdivision they seek to create, the
shape of the lot fails to limit their use of the property. Green
Meadows at Montville, LLC, supra, 329 N.J. Super. at 22, is
directly on point: defendants may not claim an undue hardship when
they seek to divide the lots "in such a way as to make [the] lots
nonconforming."
Defendants also argue they "satisfied their burden of proof
to justify relief under" N.J.S.A. 40:55D-70(c)(2). We disagree.
Defendants first requested a variance for their "guest
cottage." The Board found, "[T]here is a preexisting conformity
[sic] as it relates to the guest house which lawfully exists on
the lot and that, furthermore, this existing condition will be
extinguished once the guest house is demolished per [defendants']
stated intention." The trial court correctly concluded the record
does not support a finding of when the "guest cottage" was built
17 A-1394-16T3
or when the zoning ordinance rendering it nonconforming was passed.
Without those facts, the planning Board could not find the "guest
cottage" constituted a preexisting condition.
With respect to the lot-width variance, the planning Board's
resolution does not explain the purpose of the lot-width
requirement or how the variance would further that purpose. The
planning Board's resolution also fails to explain how the variance
would further the purposes of the MLUL. We agree with the trial
court that the Board's findings relating to the variances "are
without legal or factual support."
Affirmed.
18 A-1394-16T3