GERTRUDE WALSH VS. CITY OF CAPE MAY PLANNING BOARD(L-0434-15, CAPE MAY 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NOT FOR PUBLICATION WITHOUT THE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-0170-16T4
GERTRUDE WALSH,
Plaintiff-Respondent,
v.
CITY OF CAPE MAY PLANNING
BOARD,
Defendant-Appellant,
and
CHRISTOPHER HEIN,
Defendant/Intervenor-
Respondent.
_________________________________________
Argued September 27, 2017 – Decided October 17, 2017
Before Judges Nugent and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Cape May County, Docket No. L-
0434-15.
Richard M. King, Jr., argued the cause for
appellant.
Christopher M. Baylinson argued the cause for
respondent Gertrude M. Walsh (Perskie Mairone
Brog Barrera & Baylinson, PC, attorneys; Mr.
Baylinson, of counsel and on the brief).
Christopher D. Hein, respondent, argued the
cause pro se.
PER CURIAM
Defendant City of Cape May Planning Board (the Board) appeals
an August 1, 2016 order granting an owner, plaintiff Gertrude
Walsh, relief in an action in lieu of prerogative writs. The Law
Division nullified the Board's denial of a bulk variance that
plaintiff had sought for a residential parcel pursuant to N.J.S.A.
40:55D-70(c)(2). Having concluded the Board could have reasonably
reached its decision on adequate evidence in the record before it,
we vacate the Law Division's order and reinstate the Board's
decision.
I.
The pertinent facts and procedural circumstances are as
follows. Walsh has owned residential property located in Cape
May, New Jersey (the property) for approximately thirty-eight
years. The property is 120 feet wide and 100 feet deep. It is
improved with a one and one-half story residence, garage structure
and two off-street parking spaces.
Walsh applied to the Board for minor subdivision approval to
subdivide the property into two lots for the construction of two
single family homes. The 12,000 square foot property is located
in an R-3A medium density residential district. Cape May's zoning
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ordinance imposes a 6,250 square foot minimum lot size in R-3A
zone districts. Consequently, the application also sought a (c)(2)
variance pursuant to N.J.S.A. 40:55D-70(c)(2) for each proposed
6,000 square foot lot because each fell 250 square feet below the
minimum lot area requirement.
The Board heard Walsh's application on August 25, 2015.
Harold E. Noon, Jr., a licensed professional planner and surveyor,
testified on behalf of Walsh. Craig R. Hurless, a licensed
professional engineer, professional planner, and certified
municipal engineer, testified on behalf of the Board. Four local
residents and an attorney representing a fifth local resident
participated during the public comment period.
Noon testified, generally, that in the same block as the
property, there are nine lots smaller than the proposed lots and
ten undersized lots. He noted that in the area immediately outside
of the block, there are forty-three lots smaller than the proposed
lots, nine that are the same size, and only two that are larger.
Noon stated that the several nearby lots were only 4,000 or 5,000
square feet.
Noon indicated that the houses in the neighborhood range from
as small as 1,300 square feet to as large as 2,500 square feet.
Based on the current maximum floor area ratio for an R-3A zone, a
4,800 square foot residence could be constructed on the existing
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12,000 square foot parcel. Noon maintained that a residence that
large would overshadow everything around it and be out of character
for the neighborhood, thereby causing a negative impact.
Noon further opined that the proposed 6000 square foot lots,
which are only four percent below minimum lot size, would be more
harmonious and fit into the character of the neighborhood, thereby
preserving its character and benefitting the community. Noon also
claimed that the proposed lots would not be detrimental to the
neighborhood and, therefore, the benefits outweighed any
detriment.
Relying on the Supreme Court decision in Kaufmann v. Planning
Board for Warren, 110 N.J. 551, 563 (1988) and an unpublished
opinion, Walsh argued that where an area is dominated by a certain
lot size, and the proposed lots mirror what the dominant sizes
are, the benefits of the harmonious lot sizes outweigh the
detriments.
Hurless, who serves as the Board's engineer, testified:
"There is an existing single-family dwelling and what's indicated
as a guest house that currently exists on the property." He
indicated that both existing structures would be demolished to
construct two new homes, each having a floor area of 2181 square
feet. Hurless further testified that certain conditions, which
are not pertinent to this appeal, should be conditions of approval.
4 A-0170-16T4
The reference to a guest house on the property related to one
of Walsh's submissions. Noticeably absent from the record is any
testimony or evidence that there is a non-conforming guest house
on the property. Indeed, Noon did not mention or offer any opinion
that the structure was a non-conforming guest house. During oral
argument in the Law Division, Walsh contended for the first time
that the purported guest house was a non-conforming use that would
be eliminated if the variance and subdivision were approved.
Four members of the public who owned parcels within 200 feet
of the property, including intervenor Christopher D. Hein,
testified in opposition to the application.
Hein argued that there was no objection when the 6250 square
foot minimum lot size was adopted in 2004. Nor was there an
objection when the R-3A zone districts were created in 2005. Hein
noted that the applicant had more than ample opportunity to oppose
those zoning changes, since she owned the property for thirty-
eight years.
Hein further argued that if approved, this would be the first
subdivision in this area in the last sixty years. The proposed
lots would be the smallest lots on the street, with side yards
reduced by one-half. He pointed out that the proposal would
undermine several goals of zoning, decreasing light, air, and open
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space. He indicated that the proposal would also negatively impact
congestion and parking, making the street much more hazardous.
Joseph Gloviak, who resides on the same street as Walsh,
testified that the proposed development would make the existing
flooding and inadequate storm protection conditions on the street
even worse.
An attorney on behalf of Martha Robinson and John Azar, who
also reside on the same street, remarked that it is a very small,
quaint, quiet street, which would be changed by the proposed
development. He also voiced concern about the precedential impact
if the application were granted.
The Board denied the application by a vote of three to five
and memorialized its findings and decision in Resolution No. 10-
13-2015:1. The Resolution incorporated the following findings
pertinent to this appeal:
18. The Board finds that the purposes of the
Zoning Ordinance of the City of Cape May as
set forth in Section 525-2B(1) through (14)
and of the Municipal Land Use Law of the State
of New Jersey enumerated in N.J.S.A. 40:55D-
2(a) through (p) would not be advanced by
granting a variance to deviate from the
requirements of Section 525-16.1B(1) Table 1
[]minimum lot size requirement of the Zoning
Ordinance because the Board finds that the
applicant has failed to establish a special
reason that would advance those purposes. The
Board finds that the creation of two
undersized lots in the R-3A Medium Density
District which would result in the
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construction of 2 single family dwellings on
Swan Avenue which is a narrow street and a
unique neighborhood and that such development
is contrary to the master plan adopted by the
City. The Board finds that the proposed
development does not create a more harmonious
condition in the neighborhood than the current
condition of the property.
19. The Board further finds that the criteria
set forth in N.J.S.A. 40:55D-70[c](2) has not
been satisfied and that there are no benefits
to the community in the applicant's proposal
and that the only benefits are to the
applicant. In addition, this benefit to the
applicant of subdividing the property which
would permit the construction and sale of 2
dwelling units is substantially outweighed by
the detriment to the community that would
result from the increase in traffic, parking
on Swan Avenue and the creation of additional
nonconformities in the Zoning District and
City. The area in which the applicant's
property is located is part of Frog Hollow
which is the lowest part of town and is prone
to flooding. The Board determines that the
best way to preserve the character of the
neighborhood is to maintain the current
configuration of the property. The Board also
finds that the applicant has failed to satisfy
the negative criteria because the application
cannot be granted without substantial
detriment to the public good and such variance
relief would impair the intent and purpose of
the zone plan and Zoning Ordinance. The Zone
plan as reflected in the master plan which has
been updated and in which it is determined
what the minimum lot size in the R-3A Zone for
a single family dwelling; the master plan and
Zoning Ordinance did not determine the minimum
lot size to be what the applicant is
proposing. The applicant's proposal does not
meet any of the goals or objectives of the
master plan or zoning ordinance.
7 A-0170-16T4
On September 8, 2015, Walsh filed an action in lieu of
prerogative writs, alleging that the Board's decision was
arbitrary, capricious, and unreasonable. Following a hearing, the
Law Division judge issued an order and written memorandum of
decision, reversing the Board. This appeal followed.
II.
"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 Twp. Bd. of Adjustment, 433 N.J.
Super. 247, 252 (App. Div. 2013). Specifically, "when 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). We grant planning boards "wide latitude in the
exercise of delegated discretion" due to "their peculiar knowledge
of local conditions[.]" Price v. Himeji, LLC, 214 N.J. 263, 284,
(2013) (quoting Kramer v. Bd. of Adjustment for Sea Girt, 45 N.J.
268, 296 (1965)).
We give even greater deference to a planning board's decision
to deny a variance. Nextel of New York, Inc. v. Borough of
Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 38 (App.
Div. 2003) (citing Northeast Towers, Inc. v. Zoning Bd. of
Adjustment for W. Paterson, 327 N.J. Super. 476, 494 (App. Div.
8 A-0170-16T4
2000)); Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of
Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001). "That
heavier burden requires the proponent of the denied variance to
prove that the evidence before the board was 'overwhelmingly in
favor of the applicant.'" Nextel of New York, Inc., supra, 361
N.J. Super. at 38 (quoting Northeast Towers, supra, 327 N.J. Super.
at 494).
The scope of judicial review is limited "to determin[ing]
whether the board could reasonably have reached its decision."
Davis Enterprises v. Karpf, 105 N.J. 476, 485 (1987). 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
Twp., 172 N.J. 75, 81 (2002) (quoting Cellular Tel. Co. v. Zoning
Bd. of Adjustment for Harrington Park, 90 F. Supp. 2d 557, 563
(D.N.J. 2000)). "[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 for N. Caldwell, 160 N.J. 41, 58-59
(1999). The Board's conclusions of law, however, are subject to
de novo review. Nuckel v. Little Ferry Planning Bd., 208 N.J. 95,
102 (2011).
9 A-0170-16T4
When reviewing a board's decision, we presume its factual
determinations to be valid, and we will only reverse if the
decision is arbitrary, capricious, or unreasonable. Kane Props.,
supra, 214 N.J. at 229. That decision must be made on the basis
of what was before the board and "not on the basis of a trial de
novo, by affidavit or otherwise, before the Law Division."
Antonelli v. Planning Bd.of Waldwick, 79 N.J. Super. 433, 440-41
(App. Div. 1963); Gayatriji v. Borough of Seaside Heights Planning
Bd., 372 N.J. Super. 203, 207 (Law Div. 2004). Matters outside
the record of proceedings before the Board may not be considered
by the court. See Adams v. Delmonte, 309 N.J. Super. 572, 583
(App. Div. 1998); Kempner v. Edison, 54 N.J. Super. 408, 417 (App.
Div. 1959).
Walsh applied for a (c)(2) variance from the minimum lot size
required in an R-3A zone district. The Municipal Land Use Law
(MLUL), N.J.S.A. 40:55D-1 to -163, authorizes local zoning and
planning boards to grant variances from zoning ordinances. Here,
the relevant MLUL provision is N.J.S.A. 40:55D-70(c)(2), which
prescribes in pertinent part:
[W]here in an application or appeal relating
to a specific piece of property [it is shown
that] 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 may] grant a variance
10 A-0170-16T4
to allow departure from regulations pursuant
to article 8 of this act; provided, however,
that the fact that a proposed use is an
inherently beneficial use shall not be
dispositive of a decision on a variance under
this subsection[.]
"N.J.S.A. 40:55D-70(c)(2) permits a variance for a specific
property, if the deviation from bulk or dimensional provisions of
a zoning ordinance would advance the purposes of the zoning plan
and if the benefit derived from the deviation would substantially
outweigh any detriment." Ten Stary Dom P'ship v. Mauro, 216 N.J.
16, 30 (2013).
Our courts refer to the balancing of benefit and detriment
as proving "the positive and negative criteria." Ibid. (citing
Nash v. Bd. of Adjustment of Morris Twp., 96 N.J. 97, 106 (1984))
"The applicant bears the burden of proving both the positive and
negative criteria." Ibid.To qualify for a (c)(2) variance, the applicant must
demonstrate that "the purposes of the MLUL would be advanced, the
variance can be granted without substantial detriment to the public
good, the benefits of the variance will outweigh any detriment,
and that the variance will not substantially impair the intent and
purpose of the zoning plan and ordinance." Jacoby v. Englewood
Cliffs Zoning Bd. of Adjustment, 442 N.J. Super. 450, 471 (App.
11 A-0170-16T4
Div. 2015) (citing Wilson v. Brick Twp. Zoning Bd. of Adjustment,
405 N.J. Super. 189, 198 (App. Div. 2009)).
Importantly, our Supreme Court has emphasized that a (c)(2)
variance should not be granted when only the purposes of the owner
will be advanced. Kaufmann, supra, 110 N.J. at 563. Instead, the
variance must actually benefit the community by allowing a better
zoning alternative for the property. Ibid. The focus of a (c)(2)
case, then, is 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."
Ibid.In short, the granting of a "(c)(2) variance will stand if,
after adequate proofs are presented, the Board concludes that the
'harms, if any, are substantially outweighed by the benefits.'"
Jacoby, supra, 442 N.J. Super. at 471 (quoting Kaufmann, supra,110 N.J. at 565).
An application for a bulk variance under subsection (c)(2)
frequently implicates several purposes of the MLUL,
including to encourage a municipality to guide
development in a manner that will promote the
health, safety, and welfare of its residents,
N.J.S.A. 40:55D-2(a); . . . and to provide
"adequate light air, and open space," N.J.S.A.
12 A-0170-16T4
40:55D-2(c). A municipality is also
authorized to guide development that will
promote "a desirable visual environment,"
N.J.S.A. 40:55D-2(i), and to establish
"appropriate population densities," N.J.S.A.
40:55D-2(e).
Ten Stary Dom P'ship, supra, 216 N.J. at 30-
31.
Site conditions, including the impact of the variance on the
risk of flooding, storm runoff, traffic congestion, and limited
available on-street parking, are legitimate concerns when the
proposed variance implicates those conditions. See id. at 38
(concerning drainage and risk of flooding); Kali Bari Temple v.
Bd. of Adjustment of Twp. of Readington, 271 N.J. Super. 241, 251
(App. Div. 1994) (concerning traffic and parking). Likewise, a
subdivision which creates two lots harmonious in size with
neighboring properties may also be a valid consideration. See
Kaufmann, supra, 110 N.J. at 565.
III.
With these standards in mind, we turn to the Board's
arguments. The Board raises two main issues for our consideration:
(1) the trial court reversed the Board based upon an inaccurate
description of the record regarding surrounding lot sizes and an
unsupported finding that the current use is non-conforming; and
(2) the Board was not obligated to grant the variance. Hein raises
two additional arguments for our consideration: (1) the trial
13 A-0170-16T4
court erred in allowing the applicant to supplement the record
with new and unsubstantiated evidence, and by substituting its own
opinions and judgment for the express findings of the Board in
denying the variance and subdivision; and (2) existing case law
does not support the trial court's reversal of the Board's decision
to deny the variance application.
The Board found that Walsh failed to meet the positive
criteria of the statute. Departing from that finding, the judge
found that "Walsh's proposed subdivision will eliminate a non-
conforming use and structure while creating only a [de minimis]
(4%) deviation from the minimum lot area requirement." The judge
concluded that the proposed subdivision satisfied the positive
criteria for a (c)(2) variance "by creating more harmonious lot
sizes and eliminating a non-conforming use and structure." We
disagree.
As the court noted in Kaufmann, "no c(2) variance should be
granted when merely the purposes of the owner will be advanced."
110 N.J. at 563. Rather "[t]he grant of approval must actually
benefit the community in that it represents a better zoning
alternative for the property." Ibid. Here, the board had an
ample basis to conclude that the benefits claimed by Walsh are
insubstantial or non-existent. The Board reasonably determined
that the construction of two new homes on a narrow street would
14 A-0170-16T4
not result in a more harmonious condition in the neighborhood and
would be contrary to the master plan.
The judge found that Walsh satisfied the positive criteria,
in part, because the proposed subdivision would eliminate a non-
conforming use in the form of a guest house. In reaching that
conclusion the judge stated: "Walsh's home sits side-by-side with
a guest home and garage." The judge further stated that Walsh's
expert, Noon, opined that the proposed lots "would eliminate the
separate guest house which is a non-conforming use[.]" Although
Walsh made such arguments to the judge, the record before the
Board does not support them. The record contains only a single
fleeting reference to a guest house, which appears to have stemmed
from that term being used on one of the applicant's submissions,
rather than by competent evidence presented to the Board. Walsh's
expert did not even mention the guest house. The record is
otherwise devoid of any reference to a non-conforming guest house
or its elimination. Thus, a fact central to the court's decision
had never been properly developed on the record before the Board,
which became the record before the Law Division.
We also part company with the judge's rejection of the Board's
finding that Walsh's application failed to meet the negative
criteria of the statute. "The requirement that the grant of the
variance not 'substantially impair the intent and purpose of the
15 A-0170-16T4
zone plan and zoning ordinance' focuses on whether the grant of
the variance can be reconciled with the zoning restriction from
which the applicant intends to deviate." Lang, supra, 160 N.J.
at 57 (quoting Medici v. BPR Co., 107 N.J. 1, 21 (1987)). In
Lang, the Supreme noted that "reconciliation of a dimensional
variance with the zone plan and zoning ordinance is a relatively
uncomplicated issue, and depends on whether the grounds offered
to support the variance, either under subsection c(1) or c(2),
adequately justify the board's action in granting an exception
from the ordinance's requirements." Ibid. at 57-58.
The Board rejected plaintiff's contention that granting its
application for a variance would not result in "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. In overturning that finding, the trial judge
found that proposed subdivision would create only a de minimis
four percent deviation from the minimum lot area requirement. On
this point, we again conclude that the judge should have accorded
the Board more deference.
In attempting to negate the Board's concern that the
subdivision of her property would result in a substantial detriment
to the surrounding properties, plaintiff notes that the proposed
subdivided lots would deviate no more than four percent from the
16 A-0170-16T4
minimum lot size requirement. While that may be so, the Board did
not act arbitrarily or capriciously in finding these deviations
to be significant nonetheless. If viewed in a different numeric
manner, each proposed lot would be 250 square feet below the
minimum size. The Board was not obligated to treat that shortfall
as negligible.
Walsh also emphasizes that several other nearby lots are
smaller than 6250 square feet. The Board was entitled to consider
the cumulative negative impact of creating additional undersized
lots on the neighborhood in light of the master plan's goal of
controlling population density.
We are satisfied that the Board's decision to deny the
variance was not arbitrary, capricious or unreasonable and was
supported by substantial evidence in the record. The proofs here
demonstrate that the variance would advance the purposes of the
owner rather than the community. Walsh did not meet her burden
of demonstrating that the community will benefit due to improved
zoning if the variance is granted. See Loscalzo v. Pini, 228 N.J.
Super. 291, 304 (App. Div. 1988), certif. denied, 118 N.J. 216(1989).
In sum, the Board did not act arbitrarily in reaching its
considered assessment that Walsh's variance application did not
fit within the "very narrow band of cases" in which a (c)(2)
17 A-0170-16T4
variance is warranted. Kaufmann, supra, 110 N.J. at 560. Adhering
to our limited scope of review, we conclude the Board could have
reasonably reached its decision on the competent evidence before
it. Davis Entrs., supra, 105 N.J. at 485. We therefore reverse
the Law Division's decision and reinstate the denial of the
variance by the Board.
Reversed.
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