DAVID USECHAK VS. BOROUGH OF SHREWSBURY PLANNING BOARD (L-0311-16, 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NOT FOR PUBLICATION WITHOUT THE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-2857-16T4
DAVID USECHAK and
LOUISE USECHAK,
Plaintiffs-Respondents/
Cross-Appellants,
v.
BOROUGH OF SHREWSBURY
PLANNING BOARD,
Defendant-Respondent,
and
FRANCIS X. MOORE, JR. and
SUZANNE MOORE,
Defendants-Appellants/
Cross-Respondents.
______________________________
Argued September 21, 2018 – Decided December 7, 2018
Before Judges Simonelli, O'Connor and DeAlmeida.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-0311-16.
Paul H. Schneider argued the cause for
appellants/cross-respondents (Giordano, Halleran &
Ciesla, PC, attorneys; Paul H. Schneider, of counsel
and on the brief).
Edward F. Liston, Jr., argued the cause for
respondents/cross-appellants.
Michele R. Donato argued the cause for respondent
Borough of Shrewsbury Planning Board.
PER CURIAM
In this action in lieu of prerogative writs, d efendants Francis X.
Moore, Jr. and Suzanne Moore (the Moores) appeal from the January 24, 2017
Law Division order, which reversed the decision of defendant Borough of
Shrewsbury Planning Board (Board) granting the Moores' application for minor
subdivision approval with variances. Plaintiffs David Usechak and Louise
Usechak (the Usechaks) cross-appeal from the same order. We affirm in part,
and reverse in part.
I.
The subject property is an approximately 1.8-acre lot (78,594 square feet)
that fronts on Corn Lane and Williamsburg Drive in Shrewsbury. The property
is located in the R-1 single-family zone, where the minimum lot size is 45,000
square feet, the minimum lot width/frontage is 150 feet, the minimum front and
rear yard setbacks are fifty feet, and the minimum side yard setback is thirty
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feet. There is an existing two-story single-family dwelling on the lot that fronts
on Corn Lane. The Usechaks are adjacent property owners whose approximately
1.27-acre lot (55,321 square feet) fronts on Corn Lane and Williamsburg Drive.
Malachi and Linda Kenney (the Kenneys) were prior owners of the
property. In 1991, Paul S. Kolarsick and Maria Ann Kolarsick (the Kolarsicks),
as contract purchasers, submitted an application for minor subdivision approval
with bulk variances to subdivide the property into two nonconforming lots of
39,313 square feet and 39,310 square feet (the first application). Because the
existing dwelling on the property was only 44.7 feet from Corn Lane where 50
feet is required, the Kolarsicks also sought continuation of the pre-existing bulk
deficiency for front-yard setback. The Board denied the first application on the
merits.
The Kolarsicks and Kenneys did not appeal the Board's determination, and
the Kolarsick's did not purchase the property. Daniel and Susan Whalen
purchased the property in 1992, and the Moores purchased the property from
them in 2005.
In 2015, the Moores submitted an application that was identical to the first
application for minor subdivision approval with variance relief to subdivide the
property into two nonconforming lots. After learning of the Board's prior denial
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of the first application, the Moores revised their application to propose
subdividing the property into one non-conforming undersized lot of 33,593
square feet containing the existing dwelling fronting on Corn Lane (the non-
conforming undersized lot), and one fully conforming lot of 45,002 square feet
fronting on Williamsburg Drive (the conforming lot) (the second application).
The second application sought variance relief only for the non-conforming,
undersized lot for lot size, rear yard setback, impervious area coverage, building
area coverage, and a continuation of a prior non-conforming front-yard setback.1
In a December 16, 2015 resolution, the Board granted the second
application, concluding that res judicata did not bar its consideration of that
application on the merits. The Board found the property had changed ownership
several times since 1992, and the same parties were not involved. The Board
compared the second application to the first application and found the two
applications were substantially different and the second application presented a
different plan and different request for relief than the first application. The
1
The proposed rear yard for Lot 5.01 was 33.6 feet where 50 feet is required.
As a result of the proposed subdivision, maximum lot coverage for impervious
area is 24 percent and 20 percent is allowed. This constitutes 1000 square feet
of additional impervious coverage. The proposed maximum building coverage
is 10.44 percent and percent is permitted, which is approximately 150 square
feet additional coverage.
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Board also found that the character of the neighborhood had changed since 1992,
as the Williamsburg development was not fully built in 1992 when the Board
considered the first application.
The Usechaks filed a complaint in lieu of prerogative writs, challenging
the Board's decision. They argued the proceedings below were nullified because
Board member Judy Martinelly had a conflict of interest and there was no
Stewart2 notice of a meeting between the Moores and the Board on March 18,
2015.3 The Usechaks also argued that res judicata precluded the Board from
considering the second application on the merits.
Citing N.J.S.A. 40:55D-23(b), the trial court found that the Usechaks
failed to show that Martinelly had a direct or indirect personal interest in the
Moores' application. The court also found the Moores' appearance before the
Board on March 18, 2015 was for a "Concept Plan Review," which is permitted
under N.J.S.A. 40:55D-10.1. Thus, the court held the proceedings were not
nullified.
2
Stewart v. Planning Bd. of Manalapan, 334 N.J. Super. 123, 130 (Law Div.
1999) (requiring notice to the owners of all real property "within 200 feet in all
directions of the property which is the subject of the hearing [before the Planning
Board]").
3
The first hearing on the second application occurred on July 15, 2015.
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However, the court concluded the Board's finding that res judicata did not
bar its consideration of the second application on the merits was arbitrary,
capricious, and unreasonable. The court found that variance determinations
adhere to the property and are not personal to the applicant, and the Moores were
successors in both legal and equitable title.
The court found that the alteration of the subdivision plan by moving the
lot line twenty-one feet north and variations on the rear and front setbacks and
percentage of the impervious surface area were merely minor changes. The
court concluded that the only difference between the first and second
applications was the location of the subdivision line, and such minor change did
not constitute a sufficient change to warrant the Board's consideration of the
second application on the merits.
Lastly, the court found there was no substantial change in the conditions
affecting the property since 1992 because the Master Plan anticipated and
approved the Williamsburg development and there was no change in the Master
Plan or zoning of the property. The court concluded that other than the intended
Williamsburg development, there was no substantial change in the facts and the
circumstances of the second application.
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II.
On appeal, the Moores contend the court erred in holding that res judicata
barred the Board's consideration of the second application on the merits.4 The
Moores argue they were not in privity with or successors in title to the
Kolarsicks because the Kolarsicks made their application as contract purchasers
but never closed on the property and are not in the chain of title.
The Moores argue that even if they are deemed the same parties, the Board
correctly determined that the second application was substantially different from
the first application and that there were substantial changes in the conditions
affecting the property from the first application to warrant its consideration of
the second application on the merits.
In reviewing a planning board's decision, we use the same standard used
by the trial court. Bd. of Educ. Of Clifton v. Zoning Bd. of Adjustment of
Clifton, 409 N.J. Super. 389, 433 (App. Div. 2009). Like the trial court, our
4
We decline to address the Usechaks' responding argument that regardless of
whether res judicata barred the second application, we should exercise original
jurisdiction and address whether the Board's decision to grant the second
application was arbitrary, capricious, or unreasonable. This argument goes
beyond the scope of the trial court's decision and the Usechaks concede it was
not part of their cross-appeal. See Bogey's Trucking & Paving, Inc. v. Indian
Harbor Ins. Co., 395 N.J. Super. 59, 64 n.3 (App. Div. 2007); Walrond v. Cty.
of Somerset, 382 N.J. Super. 227, 231 n.2 (App. Div. 2006).
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review of a planning board's decision is limited to determining whether the board
could reasonably have reached its decision. Davis Enters. v. Karpf, 105 N.J.
476, 485 (1987) (citing Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 285
(1965)). Decisions on land use applications are entrusted to the sound discretion
of the planning board. Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 558
(1988). Because the board has "'peculiar knowledge of local conditions,' its
factual findings are entitled to substantial deference and are presumed to be
valid." Grubbs v. Slothower, 389 N.J. Super. 377, 382 (App. Div. 2007)
(quoting Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990)).
Therefore, a court generally "will not substitute its judgment for that of a
board 'even when it is doubtful about the wisdom of the action.'" Cell S. of N.J.,
Inc. v. Zoning Bd. of Adjustment of W. Windsor, 172 N.J. 75, 81 (2002)
(quoting Cellular Tel. Co. v. Zoning Bd. of Adjustment of Harrington Park, 90
F. Supp. 2d 557, 563 (D.N.J. 2000)). We give deference to a planning board's
decision and reverse only if its action was arbitrary, capricious, or unreasonable.
Zilinsky v. Zoning Bd. of Adj. of Verona, 105 N.J. 363, 368 (1987). However,
where the issue on appeal involves a purely legal question, we afford no special
deference to the trial court's or the planning board's decision, and must
determine if the board understood and applied the law correctly. D. Lobi
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Enters., Inc. v. Planning/Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 351
(App. Div. 2009).
Res judicata applies to a second land use application where the same
parties and same property are involved in the application and there is no
sufficient change in the application itself or in the conditions surrounding the
property to warrant consideration of the application.5 Russell v. Bd. of
Adjustment of Tenafly, 31 N.J. 58, 65 (1959). In making a determination as to
whether res judicata applies, the planning board's analysis should be "liberally
construed in favor of the applicant[.]" Id. at 66.
The same parties are involved in the application where the applicants are
in privity. As we have held:
Privity within the view of the rule of res judicata
ordinarily means identity of interest, through
succession to the same right of property involved in the
prior litigation. . . . Privity in the sense of this principle
connotes such connection in interest with the litigation
and the subject matter as in reason and justice precludes
a relitigation of the issue[.]
Privity is a word which expresses the idea that as to
certain matters and in certain circumstances persons
who are not parties to an action but who are connected
with it in their interests are affected by the judgment
with reference to interests involved in the action, as if
5
The parties do not dispute that the same property is involved in the second
application.
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they were parties. The word "privy" includes . . . those
whose interests are represented by a party to the action.
...
[L.L. Constantin & Co. v. R. P. Holding Corp., 56 N.J.
Super. 411, 417-18 (1959) (quoting Hudson Transit
Corp. v. Antonucci, 137 N.J.L. 704 (E. & A. 1948);
Restatement (First) of Judgments § 83 (1942)).]
The Moores were in privity with the Kolarsicks, as they both made their
applications through succession to the same right of the property involved in the
first application. Id. at 417. Although the Moores were not parties to the first
application, they were connected with the application, as their interests in the
outcome were the same. Further, although the Kolarsicks were contract
purchasers of the property and did not actually obtain title, they made the first
application in the same capacity as the Moores. Accordingly, the Board was
arbitrary, capricious and unreasonable in concluding the same parties were not
involved. However, the Board was not arbitrary, capricious, or unreasonable in
concluding there were sufficient changes in the second application and the
conditions affecting the property from the first application to warrant its
consideration of the second application on the merits.
A planning board is not precluded from considering a second application
if the application contains sufficient changes. Bressman v. Gash, 131 N.J. 517,
527 (1993) (quoting Russell, 31 N.J. at 66). The planning board's determination
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of the sufficiency of a change "should 'be overturned on review only if it shown
to be unreasonable, arbitrary or capricious.'" Ibid. (quoting Russell, 31 N.J. at
67). "Thus, the question is not whether a reviewing court would have reached a
different conclusion if it had initially decided the matter, but whether the
Planning Board was arbitrary, capricious, or unreasonable in concluding that
[the] second application was sufficiently different to justify considering it on
the merits." Ibid. (citation omitted).
In this case, the court concluded that moving the lot line twenty-one feet
north was not a substantial change warranting the Board's consideration of the
second application on the merits. Case law supports a contrary conclusion. For
example, in Russell, 31 N.J. at 63-64, the applicant initially applied for bulk
variance relief for a twenty-five-foot front yard setback where seventy-five feet
was required. The board denied the application. Ibid. The applicant filed a
second application, increasing the front yard setback to thirty feet and
decreasing the building coverage from eighteen percent to twelve percent. Id.
at 66-67. The five-foot difference amounted to a twenty percent increase in the
proposed setback. Id. at 67. The board found that res judicata did not bar the
second application and approved it. Ibid. The Court upheld the board's decision,
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noting that the increase in the front yard set back by just five feet constituted a
sufficient change from the prior application. Id. at 67.
In Bressman, 131 N.J. at 527-28, the board found that res judicata did not
apply to a second application that increased the rear yard setback from twenty-
eight feet to thirty-two feet, eliminated coverage variances, and added a rear
yard buffer to mitigate the rear yard set back variance. The Court found "the
Planning Board was not arbitrary, capricious, or unreasonable in concluding that
the differences justified its consideration of [the] application on the merits." Id.
at 528.
Here, the changes in the second application were significant. Moving the
lot line twenty-one feet north substantially changed both the sizes of the two lots
and the variance relief required. The second application proposed one fully
conforming lot and one non-conforming, undersized lot that required bulk
variances, whereas the first application proposed two non-conforming,
undersized lots that required bulk variances. The Board found the second
application clearly presented a different plan with a different request for relief ,
considered the changes in the second application, and concluded the changes
were sufficiently different to warrant consideration of the second application on
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the merits. The Board's decision is supported by the record and entitled to
substantial deference.
The court concluded there were no substantial changes in the conditions
affecting the property from the first application to warrant consideration of the
second application on the merits because the Master Plan contemplated the
Williamsburg development and Master Plan and zoning ordinance for the
property changed since the first application. Neither the court nor the Usechaks
cited any authority supporting this conclusion.
The Williamsburg development, which is a cluster development located
across from and to the immediate south of the property, was not fully developed
in 1992, when the Board rejected the first application. Since that time, the
development was completed and contains smaller lots of 22,500 square feet,
which changed the character of the neighborhood. The second application more
closely conforms with that development. In addition, there were other changes
in the conditions affecting the property from the first application. Development
on the conforming lot is now subject to stormwater management regulations that
were not in effect or applicable to the property until 2004. See N.J.A.C. 7:8-1.1
to -6.3. The Board considered the changes and found they were sufficient to
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warrant consideration of the second application on the merits. The Board's
finding is supported by the record and entitled to substantial deference.
For these reasons, we reverse the January 24, 2017 order.
III.
On cross-appeal, the Usechaks contend the court erred in finding the
proceedings before the Board were not nullified by Martinelly's conflict of
interest. We disagree.
The Municipal Land Use Law (MLUL) provides that "[n]o member of the
planning board shall be permitted to act on any matter in which he [or she] has,
either directly or indirectly, any personal or financial interest." Randolph v.
Brigantine Planning Bd., 405 N.J. Super. 215, 225 (App. Div. 2009) (first
alteration in original) (quoting N.J.S.A. 40:55D-23(b)). "In commenting on the
breadth of [N.J.S.A.] 40:55-1.4, the predecessor to [N.J.S.A.] 40:55D-23(b),
which contains the identical disqualification language, we observed that the
'statutory disqualification is markedly broadly couched, extending to personal
as well as financial interest, directly or indirectly.'" Ibid. (quoting Zell v.
Borough of Roseland, 42 N.J. Super. 75, 81 (App. Div. 1956)). "The statutory
bar 'is not confined to instances of possible material gain[,] but . . . it extends to
any situation in which the personal interest of a board member in the "matter"
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before it, direct or indirect, may have the capacity to exert an influence on his
action in the matter.'" Ibid. (alteration in original) (quoting Zell, 42 N.J. Super.
at 81).
"This provision of the MLUL codifies the common-law rule that '[a]
public official is disqualified from participating in judicial or quasi[-]judicial
proceedings in which the official has a conflicting interest that may interfere
with the impartial performance of his duties as a member of the public body.'"
Ibid. (quoting Wyzykowski v. Rizas, 132 N.J. 509, 523 (1993)). There are "four
situations that require disqualification: (1) '[d]irect pecuniary interests'; (2)
'[i]ndirect pecuniary interests'; (3) '[d]irect personal interest'; and (4) '[i]ndirect
personal interest.'" Ibid. (alterations in original) (quoting Wyzykowski, 132 N.J.
at 525-26). If a Board member has a conflict that requires disqualification, but
participates in the proceedings anyway, then "the Board proceedings in their
entirety must be voided and set aside." Id. at 232.
The record does not show that Martinelly had any interest, direct or
indirect, in the outcome of the proceedings, as her only connection to the case
was her involvement in the Moores' purchase of the property. This is likely not
a conflict that required disqualification. Nevertheless, at the beginning of the
first hearing on the second application, Martinelly recused herself and thereafter
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did not participate in the proceedings or vote on the second application. Thus,
the proceedings before the Board were not a nullity.
Although Martinelly voted to approve the meeting minutes from which
she recused herself, this did not render the proceedings before the Board a
nullity. Under the MLUL, it is the Board's resolution that reflects the
deliberative and specific findings of fact and conclusions of law and therefore
constitutes the official record of the Board's deliberations and ultimate approval
of the second application. See N.J.S.A. 40:55D-10(g). Conversely, the minutes
are an administrative record, which transcribes what occurs at each meeting.
N.J.S.A. 40:55D-9(c). Therefore, voting on the minutes in their entirety is an
administrative act, which did not affect the Board's quasi-judicial consideration
of the second application or nullify the proceedings.
IV.
Lastly, the Usechaks contend the court erred in finding the proceedings
before the Board were not nullified by the lack of a Stewart notice for the
meeting held on March 18, 2015. This contention lacks merit.
"[N.J.S.A.] 40:55D-10.1 provides for informal review of the concept plan
for development." Stewart, 334 N.J. Super. at 128. N.J.S.A. 40:55D-10.1
provides, in pertinent part, that
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[a]t the request of the developer, the planning board
shall grant an informal review of a concept plan for a
development for which the developer intends to prepare
and submit an application for development. . . . The
developer shall not be bound by any concept plan for
which review is requested, and the planning board shall
not be bound by any such review.
After an application has been submitted and in order to proceed with a hearing,
"notice shall be given to the owners of all real property or shown on the current
tax duplicates, located in the State and within 200 feet in all directions of the
property which is the subject of the hearing." Stewart, 334 N.J. Super. at 130
(quoting N.J.S.A. 40:55D-12 to -12.3).
In this case, the Board held an informal review of a concept plan for a
development on March 18, 2016. Thereafter, on June 3, 2016, the Moores
submitted their first application to subdivide the property into two
nonconforming lots. This application was to be the subject of the first hearing
on July 15, 2015. The Moores provided notice of the hearing to residents within
a two hundred foot radius of the property by mail on June 3, 2015, and by
publication on June 5, 2015. However, at the July 15, 2015 hearing, the Moores
submitted a revised application to subdivide the property into one conforming
lot and one nonconforming, undersized lot with variance relief. The Board
granted the Moores' motion to deem the revised application complete, and
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ordered them to re-notice residents within a two hundred foot radius of the
property at least ten days prior to the next Board meeting.
There was no Stewart violation here. The informal meeting on March 18,
2015 was for informal concept plan review and concerned a different application
than the Board ultimately considered, and the meeting occurred before the Board
deemed the Moores' revised application complete. Further, upon deeming the
revised application complete, the Board ordered the Moores to re-notice
residents within a two hundred foot radius of the property at least ten days prior
to the next Board meeting. The Moores complied. Accordingly, the court
correctly determined the proceedings before the Board were not nullified by the
lack of a Stewart notice for the meeting held on March 18, 2015.
Affirmed in part and reversed in part.
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