The opinion
NOT FOR PUBLICATION WITHOUT THE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-0737-23
JOHN VALENTINE and
VALENTINE'S FARM LLC,
Plaintiffs-Appellants,
v.
ZONING BOARD OF THE
TOWNSHIP OF MONROE,
DANIEL TOMARCHIO, and
LINDA TOMARCHIO,
Defendants-Respondents.
____________________________
Argued March 12, 2025 – Decided April 9, 2025
Before Judges Sabatino and Jablonski.
On appeal from the Superior Court of New Jersey,
Law Division, Gloucester County, Docket No. L-
1259-22.
Andrew J. Karcich argued the cause for appellants
(The Law Offices of Andrew J. Karcich, LLC,
attorneys; Andrew J. Karcich, on the briefs).
Richard P. Coe, Jr., argued the cause for respondent
Zoning Board of The Township of Monroe (Weir LLP,
attorneys; Richard P. Coe, Jr., on the brief).
Michael W. Herbert argued the cause for respondents
Daniel Tomarchio and Linda Tomarchio (Parker
McCay, PA, attorneys; Michael W. Herbert, on the
brief).
PER CURIAM
Plaintiffs appeal an October 2, 2023 Law Division summary judgment
order dismissing their complaint in lieu of prerogative writs against defendants
the Zoning Board of the Township of Monroe (the "Board") and Daniel and
Linda Tomarchio (the "Tomarchios"). Based on our review of the record and
the applicable legal principles, and for the reasons set forth by the trial judge
in his cogent oral opinion, we affirm.
I.
In 2017, the Tomarchios constructed a garage addition on their property
that exceeded the RD-C (rural development-commercial) zoning requirements
established by the Township of Monroe (the "Township"). Although the
Tomarchios previously received permission from the zoning officials and
obtained the required permits, a former zoning official failed to inform them
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that they were required to obtain a use variance 1 because the combined square
footage of their garage, an accessory structure, exceeded the size of their
home, the principal building. Therefore, their garage addition did not comply
with the Township's zoning requirements. To remedy the situation, and at the
Township's request, the Tomarchios applied to the Board for permission to
allow the structure to remain.
As they were required to do so under the Municipal Law Use Law 2 (the
"MLUL") and specifically N.J.S.A. 40:55D-11, the Tomarchios sent this
"Notice to Property Owners" with ownership interests within 200 feet of their
property:
A public hearing on Application #22-41 will be held
by the [Board] of the Township of Monroe on August
18, 2022 at 6:30 p.m., at the municipal building
located at 125 Virginia Avenue, Williamstown, NJ, on
the first floor in the courtroom.
The object of the hearing will be to consider an
application by the undersigned for the following
reasons:
The applicant is requesting a use variance to allow an
accessory structure larger than the princip[al] use on
1
A "use variance" is a special exception to a zoning requirement that permits
a property owner to use land in a way that is not ordinarily permitted by the
local zoning ordinance. N.J.S.A. 40:55D-70(d).
2
N.J.S.A. 40:55D-1 to -171.
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3
the property, along with any variances or waivers
deemed necessary by the Board. The accessory
structure is approximately 2160 square feet and the
princip[al] structure is approximately 1152 square
feet.
Location of the property: [] 3 Block :[] Lot: [] of the
official tax map of the Township of Monroe.
Nearest intersection/landmark: Coles Mill Road.
You are advised of this hearing because you are the
owner of property within 200 feet and required to be
notified according to the law.
You are not required to appear at this hearing unless
you wish to object to what the undersigned is
requesting.
All written objections must be presented to the Zoning
Board Office at the address above before the hearing
date.
Documents related to the application may be inspected
by the public between the hours of 8:30 a.m. and 4:00
p.m., Monday through Friday.
[(Emphasis in original).]
The notice was signed by the property owners and was dated July 18,
2022. The Courier-Post 4 published a notice on August 4, 2022 that "the
3
The published notice included the address of the property and its block and
lot. We omit both here since this personal information is not relevant to our
decision.
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4
applicants are requesting a use variance to allow an existing accessory
structure larger than the principal use on their property, along with any other
variances or waivers deemed necessary." That notice also provided the
Tomarchios' names, property address, block and lot designations, and the zone
in which the property is located.
Plaintiffs are neighbors of the Tomarchios. They objected to the
application's completeness and argued that the notice was inadequate because
it did not include additional substantive information about other potential
variances that plaintiffs believed would be required. The Board heard
plaintiffs' objection, voted on its completeness, then considered the merits of
the application.
Defendants testified about the proposed use of the improvement and
highlighted that there would not be any adverse impact on any neighboring
property owner. Plaintiff, Daniel Tomarchio, testified to certain deleterious
impacts to his property that plaintiff believed were caused from defendants'
garage addition. The briefs advise us that those impacts, including the alleged
_________________________
4
The Courier-Post is a newspaper that "serve[s] the counties of Burlington,
Camden[,] and Gloucester in New Jersey." About the Courier-Post, Courier
Post, https://static.courierpostonline.com/about/ (last visited April 1, 2025).
A-0737-23
5
loss of trees, was resolved in separate litigation. Kevin Dixon, 5 plaintiff's
friend, testified about the positive and negative criteria that were required to be
considered by the Board under N.J.S.A. 40:55D-70. 6 The Board's planner
provided a "use variance review" report.
In a comprehensive resolution, the Board weighed the positive and
negative criteria and concluded that the structure promoted the general welfare
of the community and facilitated a desirable visual environment. The Board
granted the variance and imposed some limited conditions on its use.
Plaintiffs filed an application in lieu of prerogative writs and defendants
subsequently moved for summary judgment to dismiss it. In a detailed oral
decision on October 2, 2023, the trial court initially found that notice to the
property owners by defendants was sufficient under the MLUL and concluded
5
Dixon appeared as a lay witness as he had not prepared a report in
anticipation of the hearing, although he was noted to be an engineer and
planner.
6
Generally, the "positive criteria" focuses on the benefits of the proposed
variance and whether it advances the Township's zoning purposes or that the
site is particularly suited for the use. The "negative criteria" addresses
whether the variance would cause substantial detriment to the public good or
significantly impair the zoning plan or ordinance. N.J.S.A. 40:55D-70; see
New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of
Adjustment, 160 N.J. 1, 14 (1999).
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that the Board did not act arbitrarily, capriciously, nor unreasonably when it
granted the variance.
This appeal followed.
II.
We first analyze plaintiffs' claim that defendants failed to provide
adequate and proper notice to the public according to the MLUL, and,
therefore, deprived the Board of jurisdiction to conduct the hearing.
Specifically, plaintiffs argue that the notice provided either incorrect
information as to the type of variance that was required or failed to set forth
necessary additional information to provide the public with specific details of
the nature of the application. To plaintiffs, the notice was "vague and obscure
at best and misleading at worst." We disagree.
The public notice requirements of the MLUL are jurisdictional. Shakoor
Supermarkets, Inc., v. Old Bridge Twp. Plan. Bd., 420 N.J. Super. 193, 201
(App. Div. 2011). It is clear "the MLUL's mandate in N.J.S.A. 40:55D-11
requir[es] notice of the 'nature of the matters to be considered' by the board."
Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment,
397 N.J. Super. 335, 351 (App. Div. 2008) (quoting Perlmart of Lacey, Inc. v.
Lacey Twp. Plan. Bd., 295 N.J. Super. 234, 237 (App. Div. 1996)). To comply
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with the statute, the notice must "accurately identify[] the type of use or
activity proposed by the . . . applicant in lay[person]'s terms" with the purpose
of fairly apprising the public of the plan to allow them to determine whether to
participate at the public hearing. Id. at 352 (quoting Perlmart, 295 N.J. Super.
at 239). We have "read the statute to require a 'common sense description of
the nature of the application, such that the ordinary layperson could understand
its potential impact upon him or her.'" Ibid. (quoting Perlmart, 295 N.J. Super.
at 239).
Here, we agree with the trial court that the notice was legally sufficient
and properly advised the public about the specific application for a use
variance. Defendants sent the notice to the property owners within 200 feet of
the subject property which sufficiently informed them of: (1) the date, time,
and place of the hearing; (2) the nature of the matters considered; (3) the
identification of the property by street address or lot and block number; and (4)
the location and times at which the documents pertaining to the application
would be available for review. N.J.S.A. 40:55D-11. Moreover, the
information contained in the notice was sufficient to permit plaintiffs to appear
at the hearing with their witness and to advocate their position before the
Board.
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III.
We next turn to the substantive merits of plaintiffs' appeal and their
argument that the Board's decision conflicts with the Township's master plan
and that defendants failed to meet their burden of proof. Considering the
deference provided to the Board's decision, we discern no error from the trial
court's affirmance of the Board's decision.
"[W]e are bound by the same standards as was the trial court" when
reviewing the validity of a local board's decision. Jacoby v. Zoning Bd. of
Adjustment 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)). "Like the trial court, our review of a planning
board's decision is limited." Bd. of Educ. of Clifton v. Zoning Bd. of
Adjustment of Clifton, 409 N.J. Super. 389, 434 (App. Div. 2009) (citing
Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327
(1998)). "[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). As the trial court properly did here, we defer "to the actions
and factual findings of local boards and may not disturb [the] findings unless
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they were arbitrary, capricious, or unreasonable." Jacoby, 442 N.J. Super. at
462.
"A board acts arbitrarily, capriciously, or unreasonably if its findings of
fact . . . are not supported by the record, or if it usurps power reserved to the
municipal governing body or another duly authorized municipal official." Ten
Stary Dom. P'Ship v. Mauro, 216 N.J. 16, 33 (2013) (citations omitted).
Consequently, "courts 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."
Simeone v. Zoning Bd. of Adjustment of E. Hanover, 377 N.J. Super. 417, 426
(App. Div. 2005) (quoting Lang v. Zoning Bd. of Adjustment of N. Caldwell,
160 N.J. 41, 58-59 (1999)). Further, land use boards are provided "wide
latitude in the exercise of the delegated discretion" under the MLUL because
of their particular "knowledge of local conditions." Berkeley Square Ass'n v.
Zoning Bd. of Adjustment of Trenton, 410 N.J. Super. 255, 263 (App. Div.
2009) (quoting Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990)).
This court defers to decisions made by local board members because
they are more "familiar with their communities' characteristics and interests"
and are better suited to decide concerns on local zoning regulations. Pullen v.
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Twp. of S. Plainfield Plan. Bd., 291 N.J. Super. 1, 6 (App. Div. 1996) (quoting
Ward v. Scott, 16 N.J. 16, 23 (1954)). However, determinations of questions
of law in land use matters are reviewed de novo. Bubis v. Kassin, 184 N.J.
612, 627 (2005).
Here, we are satisfied that the Board made detailed factual findings
justifying the positive and negative statutory requirements to grant the use
variance. See N.J.S.A. 40:55D-10g(2); Medici v. BPR Co., 107 N.J. 1, 23-25
(1987). Accordingly, as the trial court found, the Board's resolution provides
substantial detail for its findings on both. We reject plaintiffs' contention that
it was legally necessary for each Board member to attest on the record as
having read the full text of the proposed resolution. We, too, are satisfied that
the Board's decision was not arbitrary, capricious, nor unreasonable and was
amply supported by the record.
To the extent we have not otherwise addressed plaintiffs' arguments,
they are without sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(A) and (E).
Affirmed.
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