Mirco Kaja v. Borough of West Long Branch Planning Board

NOT FOR PUBLICATION WITHOUT THE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-3680-22

MIRCO KAJA,

Plaintiff-Appellant,

v.

BOROUGH OF WEST

LONG BRANCH

PLANNING BOARD,

Defendant-Respondent.

________________________

Argued September 17, 2024 – Decided February 3, 2025

Before Judges Gilson and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Law

Division, Monmouth County, Docket No. L-0086-22.

R.S. Gasiorowski argued the cause for appellant

(Gasiorowski & Holobinko, attorneys; R.S.

Gasiorowski, on the briefs).

Michael A. Irene, Jr. argued the cause for respondent.

PER CURIAM

In this action in lieu of a prerogative writs, plaintiff Mirco Kaja appeals

from the July 14, 2023 order, denying his challenge to a planning board's

decision to deny his application for a variance to subdivide his single-family

residential property and construct a second single-family home. Having

considered the arguments, the record, and the applicable law, we affirm

substantially for the reasons set forth by the trial court in its comprehensive

written decision.

I.

Plaintiff owns and resides in a two-story single-family home with a two-

car attached garage at 91 Parker Road in the Borough of West Long Branch,

identified as Block 70, Lot 29. The existing lot size was 26,487.75 square feet,

150 feet wide, with a 43.6 feet front yard setback, a 52.2 feet side yard setback,

a 71.9 feet rear yard setback, 6.8% maximum lot coverage, and 11.4% maximum

impervious coverage. Plaintiff's property is a fully conforming corner lot in the

R-22, single family residential zone.

On April 21, 2021, plaintiff applied to the Borough's Planning Board to

subdivide the property into two non-conforming lots with bulk variance relief.

Specifically, he sought approval to renovate the existing residence and build a

detached garage on the proposed Lot 29.01, and approval to build a thirty-foot

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long home on the proposed Lot 29.02. If subdivided, both lots would be

undersized.

In that regard, the removal of a portion of plaintiff's existing home, with

the attached garage, on Lot 29.01 would result in only 76% of the required lot

area (17,168 square feet proposed; 22,500 square feet required) and only 58%

of the required lot width (87.87 feet proposed; 150 feet required). Plaintiff

planned to install a pool and raise the pool patio behind his residence, causing

the proposed new detached garage to be deficient in its rear yard setback.

The proposed thirty feet home on Lot 29.02 would consist of only 41% of

the required lot area (9,319 square feet proposed; 22,500 square feet required)

and only 41% of the required lot width (62.13 feet proposed; 150 feet required).

That home would be deficient in each side yard setback (14.44 feet and 17.70

feet proposed; 20 feet required for each), as well as total combined side yard

setbacks (32.14 feet proposed; 50 feet required).

Plaintiff also proposed three accommodations to appease any issues

caused by the proposed construction: (1) plant additional evergreens on the rear

property line to shield any light that would shine from his car's headlights onto

the apartment complex behind him whenever he would pull into the proposed

rear garage; (2) install a drywell system to handle any stormwater runoff from

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the increased imperviousness of the property; and (3) build a sidewalk along

Parker Road that would connect to the sidewalk along Monmouth Road.

On October 12, 2021, the West Long Branch Planning Board (Planning

Board) held a public hearing. Represented by counsel, plaintiff testified

concerning his overall goal and plan for the proposed property. He contended

that subdividing the lot would be a way "to give back [to the community] in a

way . . . [that] improves the town . . . by building another home." When asked

whether his application contained plans, plaintiff conceded no architectural,

drainage, or grading plans had been submitted with his application. A traffic

study had not been conducted nor had plaintiff spoken with any of his neighbors.

Plaintiff presented testimony from his professional planner, Christina

Nazzaro Cofone, who testified plaintiff's proposal was supported under the

N.J.S.A. 40:55D-70(c)(2) criteria. Cofone further testified plaintiff's proposal

would "create[] investment in the area . . . [and] create[] a variety of housing

types." Cofone referenced the neighborhood inventory and stated that many of

the properties surrounding the subject property were similarly sized to the

proposed lots, including the lot immediately adjacent to the proposed lots and

most of the lots on the south side of Parker Road. Four lots are 9,300 square

feet or less, roughly the same size or smaller than the proposed size of Lot 29.02.

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Another thirteen nonconforming lots existed on Parker Road and Summers

Avenue, but Cofone did not know if those properties were created by variance

or were grandfathered. Cofone stated the overall lot development scale was

proportionate to and harmonious with the surrounding community.

The Planning Board also heard from several members of the public who

were concerned about the proposal. Two members of the public, Larry Shapiro

and Frank Scaquorchio, testified that all the nonconforming lots on Parker and

Summers Avenue were built prior to the creation of the R-22 zone and were thus

grandfathered. Shapiro also presented the Planning Board with a copy of the

unpublished case addressing that issue and asserted that the Planning Board had

found in that case that those properties were grandfathered into the R-22 zone.

The public was concerned that the creation of another driveway close to

Parker Road's intersection with Monmouth Road would significantly worsen the

traffic on Parker Road and increase the frequency of backups onto Monmouth

Road. Cofone acknowledged that there would be an increase in the number of

vehicles accessing the property but expressed that "I am hard[-]pressed to find

that one additional 9,000-square foot lot is going to have a remarkable difference

on the traffic impact in this area."

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At the conclusion of the hearing, the Planning Board unanimously voted

to deny plaintiff's application, which was memorialized in a resolution on

December 14, 2021. In its resolution, the Planning Board found that "the

applicant has failed to satisfy the 'positive criteria' and the 'negative criteria'

necessary to support granting bulk ('C') variance relief." Regarding the positive

criteria, the Planning Board rejected Cofone's reasoning, finding that

"[a]lthough the applicant's [p]lanner claimed that the project advances 'purpose

(g)' [of the MLUL], the Board finds that the opposite is the case; this proposal

clearly does not provide sufficient space in appropriate locations for residential

uses."

The Planning Board further explained that the adoption of Cofone's

reasoning "would lead to absurd results, allowing for the subdivision of the

existing conforming lots in the zone . . . thereby completely destroying the zone

plan." Instead of benefitting the community or advancing the purposes of the

zoning plan, "the Board [found] that the proposal serves only to advance the

personal interests of Mr. Kaja in deriving additional profit from the site."

The Planning Board also found that plaintiff failed to satisfy the negative

criteria, finding the lot area and lot width of the proposed lots were so

"materially deficient" that "[t]his proposal clearly constitutes a substantial

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deviation from and impairment of the R-22 zone scheme requirements." It

rejected Kaja's argument that similarly-sized lots on the south side of Parker

Road and on Summers Avenue show that his proposal would not substantially

impair the zoning plan, finding that "any such nonconforming lots predate the

R-22 zoning scheme" and that "no evidence was presented by the applicant

demonstrating that any of the few nonconforming lots were created . . .

subsequent to the establishment of the R-22 zone."

Plaintiff filed a complaint in lieu of prerogative writs, challenging the

Board's action as arbitrary, capricious, and unreasonable and contending that he

was entitled to variances under N.J.S.A. 40:55D-70(c)(2). Plaintiff also moved

to supplement the record to include a copy of the unpublished opinion, a copy

of the transcript and resolution of an application to the Planning Board

concerning a proposed subdivision at 63 Summers Ave (the "Chambers" matter).

Following a one-day trial, the trial court reserved decision. On April 21,

2023, Judge Linda Grasso Jones enter an order accompanied by a thorough

statement of reasons, dismissing plaintiff's complaint with prejudice. In

rejecting plaintiff's argument that the Planning Board failed to conduct an

analysis concerning the bulk variances, the judge reasoned "[t]he Board

determined, citing N.J.S.A. 50:55D-2(g), . . . that the application [did] not

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provide sufficient space for the proposed residential uses and that the project in

no way benefits the community but rather serves only to advance the private

interest of plaintiff."

As to the negative criteria, the judge concluded that the Board found

plaintiff's application would result in a "substantial detriment" to the public good

and relied on the Board's explanation in the resolution. The judge also rejected

plaintiff's argument that based on Cofone's testimony, an additional single-

family home would not have a remarkable difference on traffic impact in the

area. The judge reasoned "the Board is free to consider the arrangement of the

driveways and the proximity to intersections, which is what the Board did here,

and determine that the benefits [plaintiff'] claimed would result from the grant

of the variance did not substantially outweigh the detriment to traffic." Lastly,

citing to Cerdel Constr. Co., Inc. v. Twp. Comm. of E. Hanover Twp. in Morris

Cnty., 86 N.J. 303, 306-07 (1981), the judge rejected plaintiff's argument that

his proposal would not cause damage to the character of the neighborhood

because his lot borders denser zones and is in proximity to nonconforming lots

within the R-22 zone.

II.

On appeal, plaintiff raises the following points:

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POINT ONE

THE WEST LONG BRANCH PLANNING BOARD'S

DENIAL OF THE APPLICANT'S TWO LOT

SUBDIVISION WITH SEVERAL BULK

VARIANCES WAS ARBITRARY, CAPRICIOUS[,]

AND UNREASONABLE AND SHOULD BE

REVERSED.

POINT TWO

THE BOARD AND THE TRIAL COURT FAILED TO

PROPERLY ASSESS THE NEGATIVE CRITERIA

IMPLICATING THE EVALUATION OF GRANTING

BULK VARIANCES.

A. The Bulk Variances Requested for the Two-Lot

Subdivision Will Not Cause Substantial Detriment to

the Public Good.

B. The Bulk Variances Requests which Accompany

the Applicant's Proposed Two Lot Subdivision Will

Not Substantially Impair the intent of the West Long

Branch's Zone Plan or Zoning Ordinance:

After reviewing the record, we affirm for the reasons stated by Judge

Grasso Jones. Accordingly, we need not address plaintiff's contentions at

length. We add the following comments.

A zoning board's decisions "enjoy a presumption of validity, and a court

may not substitute its judgment for that of the board unless there has been a clear

abuse of discretion." Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (citing

Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002)).

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"When reviewing a trial court's decision regarding the validity of a local board's

determination, 'we are bound by the same standards as . . . the trial court.'"

Jacoby v. Zoning Bd. of Adjustment of Bor. of Englewood Cliffs, 442 N.J.

Super. 450, 462 (App. Div. 2015) (quoting Fallone Props., L.L.C. v. Bethlehem

Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004)).

Giving all due deference to the decision of a board, the trial court must

determine whether the board's resolution is supported by "substantial evidence

in the record." Lang v. Zoning Bd. of Adjustment, 160 N.J. 41, 58-59 (1999).

Additionally, the resolution cannot merely recite conclusory findings but must

include a reasoned explanation, supported by the evidence presented. Loscalzo

v. Pini, 228 N.J. Super. 291, 305 (App. Div. 1988).

"A board's decision 'is presumptively valid, and is reversible only if

arbitrary, capricious, and unreasonable.'" Smart SMR of N.Y., Inc. v. Borough

of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998) (quoting Sica v. Bd.

of Adjustment of Twp. of Wall, 127 N.J. 152, 166-67 (1992)); see also Kane

Props., LLC v. City of Hoboken, 214 N.J. 199, 229 (2013). "We do not review

the wisdom of [a planning board's] decision, rather . . . we merely 'determine

whether the board could reasonably have reached its decision.'" Pullen v. Twp.

of S. Plainfield Plan. Bd., 291 N.J. Super. 1, 6-7 (App. Div. 1996) (quoting Davis

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Enters. v. Karpf, 105 N.J. 476, 485 (1987)). "Accordingly, we will not disturb

a board's decision unless we find a clear abuse of discretion." Cell S. of N.J.,

Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 82 (2002)

(citing Med. Realty Assocs. v. Bd. of Adjustment, 228 N.J. Super. 226, 233

(App. Div. 1988)). "[T]he party 'attacking such action [has] the burden of

proving otherwise.'" Id. at 81 (alteration in original) (quoting N.Y. SMSA Ltd.

P'ship v. Bd. of Adjustment, 324 N.J. Super 149, 163 (App. Div. 1999)).

In order to obtain a (c)(2) variance, a plaintiff is required to establish a

"substantial benefit." See N.J.S.A. 40:55D-70(c)(2). Thus, "[a] [(c)(2)]

variance . . . must set forth what purposes of the MLUL will be advanced by

granting the requested variance." Wilson v. Brick Twp. Zoning Bd. of

Adjustment, 405 N.J. Super. 189, 198 (App. Div. 2009); see also Kaufmann v.

Planning Bd. for Warren Twp., 110 N.J. 551, 562 (1988) (explaining a grant of

a (c)(2) variance "must be rooted in the purposes of zoning and planning itself

and must advance the purposes of the MLUL.").

Based on our scope of review, we hold plaintiff has not demonstrated the

criteria necessary for a (c)(2) variance. It is well established that a grant of

approval must "actually benefit the community in that it presents a better zoning

alternative for the property." Kaufman, 110 N.J. at 563. Here, we agree with

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Judge Grasso Jones that only plaintiff would derive a benefit for the subdivided

lot and there is no apparent benefit for West Long Branch. Accordingly, we

conclude there is sufficient support in the record that plaintiff's proposed

improvements do not advance the purposes of municipal land use and may be a

detriment to the intent and purpose of the R-22 zoning ordinance.

Affirmed.

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