MARK G. MONTENERO VS. TOMS RIVER TOWNSHIP PLANNING BOARD (L-0423-18, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-5767-17T4

MARK G. MONTENERO,

Plaintiff-Appellant,

v.

TOMS RIVER TOWNSHIP

PLANNING BOARD and

1209 CHURCH ROAD, LLC,

Defendants-Respondents.

__________________________

Argued December 2, 2019 – Decided March 9, 2020

Before Judges Fasciale, Moynihan and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law

Division, Ocean County, Docket No. L-0423-18.

Jay Bently Bohn argued the cause for appellant

(Schiller Pittenger & Galvin, PC, attorneys; Jay Bently

Bohn, on the briefs).

Kelsey Anne McGuckin Anthony argued the cause for

respondent Toms River Township Planning Board

(Dasti Murphy McGuckin Ulaky Koutsouris &

Connors, attorneys; Gregory P. McGuckin, of counsel;

Kelsey Anne McGuckin Anthony, on the brief).

Michael B. York argued the cause for respondent 1209

Church Road, LLC (Novins York & Jacobus, attorneys;

Michael B. York, on the brief).

PER CURIAM

In this action in lieu of prerogative writs, plaintiff Mark G. Montenero

appeals from an order for final judgment entered in favor of defendants Toms

River Township Planning Board (Board) and 1209 Church Road, LLC

(developer) dismissing plaintiff's complaint with prejudice. Plaintiff argues the

Board's preliminary and final subdivision approval of developer's application to

divide an L-shaped lot into twenty-six separate lots, with single-family homes

to be built on twenty-four lots,1 was invalid because the Board lacked a quorum

during its meetings leading up to the Board's vote, and the Board's grant of two

variances and a design waiver in connection with its subdivision approval was

arbitrary, capricious, unreasonable or otherwise illegal. We affirm the judgment

upholding the variances, but remand to the Board for further proceedings

consistent with this opinion on the driveway design waiver issue.

We are not persuaded that the Board acted without a quorum. Toms River,

in accordance with N.J.S.A. 40:55D-23(a), created a planning board consisting

1

Two lots are to be utilized for drainage facilities.

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of nine members.2 Toms River Twp., N.J., Land Use and Dev. Regulations

Ordinance § 348-3.1 (2017). In his merits brief, plaintiff contends five Board

members were present at the initial hearing on developer's application during

which developer presented the testimony of its engineer, and at the second

meeting during which plaintiff's counsel was afforded an opportunity to cross-

examine the engineer.3 The member absent during the first meeting appeared at

the second meeting, but one member who was present at the first meeting was

absent from the second.4 The vote at the second meeting was postponed because

the member absent during the first hearing had not listened to the recording of

that meeting, a pre-condition under N.J.S.A. 40:55D-10.2 to her voting. 5 All six

2

N.J.S.A. 40:55D-23(a) allows a governing body to create a planning board

consisting of seven or nine members.

3

The Board passed a motion at the first meeting to postpone its vote on the

application and continue the hearing to allow objectors, including plaintiff, to

have their absent counsel review the transcript and participate in the application

process.

4

The parties and the record fail to account for the other three Board members

or explain the reason only six Board members heard developer's application.

That issue was not briefed, and we will not consider it. 539 Absecon Blvd.,

L.L.C. v. Shan Enters. Ltd. P'Ship, 406 N.J. Super. 242, 272 n.10 (App. Div.

2009).

5

N.J.S.A. 40:55D-10.2 provides:

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members were present at the third meeting, voting five to one to approve the

subdivision; the member absent from the first hearing voted against approval.

Plaintiff concedes both absent members executed affidavits, attesting that they

listened to the recording of the meeting they missed. Each member stated on

the record of the last meeting that they had done so.

Plaintiff argues the Board lacked a required quorum of five members at

the second meeting because the member absent at the first hearing had not yet

listened to the recording of the first meeting and was thus ineligible to vote. He

contends the four members eligible to vote did not constitute a quorum rendering

that hearing "a nullity[.]"

We reject plaintiff's argument that the Board was unable to transact any

business unless it had a quorum. "'Quorum' means the majority of the full

authorized membership of a municipal agency." N.J.S.A. 40:55D-6. Plaintiff

A member of a municipal agency who was absent for

one or more of the meetings at which a hearing was held

or was not a member of the municipal agency at that

time, shall be eligible to vote on the matter upon which

the hearing was conducted, notwithstanding his

absence from one or more of the meetings; provided,

however, that such board member has available to him

the transcript or recording of all of the hearing from

which he was absent or was not a member, and certifies

in writing to the board that he has read such transcript

or listened to such recording.

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relies on that portion of N.J.S.A. 40:55D-9(a) that provides: "No action shall be

taken at any meeting without a quorum being present." Culling that sentence,

however, ignores our Supreme Court's direction that

"[s]tatutes must be read in their entirety; each part or

section should be construed in connection with every

other part or section to provide a harmonious whole."

Burnett[v. County of Bergen, 198 N.J. 408, 421

(2009)]. "When reviewing two separate enactments,

the Court has an affirmative duty to reconcile them, so

as to give effect to both expressions of the lawmakers'

will." Saint Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 14

(2005). "Statutes that deal with the same matter or

subject should be read in pari materia and construed

together as a unitary and harmonious whole." Id. at 14-

15.

[In re Petition for Referendum on Trenton Ordinance

09-02, 201 N.J. 349, 359 (2010).]

The very next sentence of N.J.S.A. 40:55D-9(a) clarifies that the term

"action" means voting on a measure: "All actions shall be taken by a majority

vote of the members of the municipal agency present at the meeting[.]" When

read in conjunction with the Legislature's provision allowing members who were

not present at a meeting to vote on a measure if they listened to the missed

meeting's recording, N.J.S.A. 40:55D-10.2, the legislative intent in enacting

N.J.S.A. 40:55D-9(a) is clear. See Bosland v. Warnock Dodge, Inc., 197 N.J.

543, 553 (2009) ("Our task in statutory interpretation is to determine and

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effectuate the Legislature's intent."). No vote may be taken unless a quorum is

present.

We follow the statutory directive, recognized by our Supreme Court, to

explicate a legislative enactment:

In the construction of the laws and statutes of this state,

both civil and criminal, words and phrases shall be read

and construed with their context, and shall, unless

inconsistent with the manifest intent of the legislature

or unless another or different meaning is expressly

indicated, be given their generally accepted meaning,

according to the approved usage of the language.

[State v. Gandhi, 201 N.J. 161, 177 (2010) (quoting

N.J.S.A. 1:1-1).]

In doing so, we discern a legislative scheme that requires a planning board

to schedule meetings "not less than once a month . . . unless canceled for lack

of applications for development to process." N.J.S.A. 40:55D-9(a). A planning

board must also

hold a hearing on each application for development,

adoption, revision or amendment of the master plan,

each application for approval of an outdoor advertising

sign submitted to the municipal agency as required

pursuant to an ordinance adopted under subsection g. of

section 29.1 of P.L. 1975, c. 291 (C. 40:55D-39) or any

review undertaken by a planning board pursuant to

section 22 of P.L. 1975, c. 291 (C. 40:55D-31).

[N.J.S.A. 40:55D-10(a).]

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The Legislature anticipated that members of planning boards and other

municipal agencies would be unable to attend every meeting and provided a

mechanism for absent members to become informed of the business transacted

at any missed meeting before voting at a meeting at which a quorum is present.

Thus, voting is the action that requires a quorum, not the conduct of other

business that is recorded for later review. See N.J.S.A. 40:55D-10(f). There

was, therefore, a quorum present throughout all proceedings, including the

Board's vote.

The proposed development called for homes to be built on a new cul-de-

sac developer would construct intersecting with Church Road. The variances

sought by the developer involved the two lots, designated 8.01 and 9.01, that

were to be formed at the corner of Church Road and the new cul-de-sac, Feldmus

Lane. Because the homes to be constructed had to conform to the front-yard

setback requirements for both streets—sixty feet from each—front-yard

variances were needed because the planned construction provided only a forty-

foot setback on Church Road for each of the lots.

Developer's engineer testified that although the other lots in the proposed

development fronting entirely on Feldmus Lane conformed to the zoning

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ordinance, the lots at the Church Road intersection required relief. He

explained:

It's not uncommon for us to request a front setback

relief to Church Road. We would keep the front setback

along our proposed access, which would be really the

front yard of the property. So, Church Road would

essentially become a . . . true side yard of the property.

We would reduce that [setback requirement] from

[sixty feet] to [forty feet].

There are lots in the area, corner lots similar to

this that also have that same variance that are less than

[sixty feet]. On the corner of Cobblestone, there's a lot

that's approximately [fifty-four] feet. And on the

corner of Kalvel it's [forty-five] feet. The adjacent

property, which was recently approved, that was

approved at [forty feet] as well for the corner lots. It's

only those corner lots.

He further testified:

[T]here's certain criteria we have to meet for those

variances. I don't see where it would impact the zone

plan or master plan for the project or the surrounding

area, or to be a detriment to the area. And, in fact, . . .

granting this variance will allow us to basically have a

. . . side garage that's more aesthetically pleasing from

the roadway and also from the passerbys on Church

Road[.] In Burbridge v[. Twp. of] Mine Hill [6] it was

established that aesthetic appearance was actually a

legitimate reason to grant a D variance. We're only

looking for a C variance here. So, again, the aesthetics,

I believe, outweigh the minor variance that we're

6

117 N.J. 376 (1990).

A-5767-17T4

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looking . . . for . . . what's really a side yard to be front

setback.

The resolution memorializing the Board's grant of the variance sets forth

the Board's findings of fact:

WHEREAS, the Board notes that each of these

[two] lots are "corner lots" as part of this subdivision

fronting on Church Road; and

WHEREAS, the Board recognizes that it is

appropriate to have the houses face the new cul-de-sac

roadway as opposed to Church Road so that same fits

the character of the rest of the subdivision and

eliminates driveways which would have access to

Church Road, which is a high volume roadway; and

WHEREAS, as a result, the corner lots

essentially make Church Road a side yard; and

....

WHEREAS, [developer] has been represented by

[counsel] and submitted the testimony of [an engineer]

who is qualified and accepted by the Board as an expert

witness in this matter; and

....

WHEREAS, the Board agrees that having a side

garage provides a better aesthetic look to the

development and it is appropriate to grant a variance

for the front yard setback requirements for both [l]ots

8.01 and 9.01 as a result; and

WHEREAS, the Board is satisfied there will be

no negative impact from the granting of the variance

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relief sought as the use proposed is permitted, it is more

appropriate to face the new roadway than it would be to

have the [two] corner lots facing Church Road and the

application is similar to that which has been previously

approved for the adjoining lot[.]

Plaintiff asserts that the resolution does not identify the type of variance

granted and neither the public hearing record nor the resolution articulate "the

statutory standards for the grant of variance relief or application of those

standards to the evidence presented[.] Moreover, there was not substantial

evidence that would have supported the variances."

We accord substantial deference to a Board's findings of fact and will

affirm its discretionary ruling only if it is arbitrary and capricious. CBS

Outdoor, Inc. v. Borough of Lebanon Planning Bd./Bd. of Adjustment, 414 N.J.

Super. 563, 577 (App. Div. 2010). As the Court in Burbridge declared:

A court should sustain a local zoning board's

determination to grant a zoning variance if that board's

decision comports with the statutory criteria and is

founded on adequate evidence. If there is such support

in the record, approval will not be deemed arbitrary or

capricious. Boards of adjustment, "because of their

peculiar knowledge of local conditions, must be

allowed wide latitude in the exercise of the delegated

discretion." Medici v. BPR Co., 107 N.J. 1, 23 (1987);

Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. [268,

296 (1965)].

[117 N.J. at 385 (citations omitted).]

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In that planning boards also have the power to grant variances under N.J.S.A.

40:55D-70(c)—commonly called "(c) variances," see N.J.S.A. 40:55D-60—the

same review standard applies to the Board's grant of the (c) variance to

developer.

In relevant part, the statute provides that (c) variances, may be granted:

(1) Where: . . . (b) by reason of exceptional topographic

conditions or physical features uniquely affecting a

specific piece of property, or (c) by reason of an

extraordinary and exceptional situation uniquely

affecting a specific piece of property . . . , the strict

application of any regulation . . . would result in

peculiar and exceptional practical difficulties to, or

exceptional and undue hardship upon, the developer of

such property . . . ; [or] (2) where in an application or

appeal relating to a specific piece of property 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[.]

[N.J.S.A. 40:55D-70(c).]

The statute further provides that a (c) variance cannot be granted unless the

applicant establishes what is colloquially referred to as the negative criteria,

proving that "that such variance or other relief can be granted without 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; Lang v.

Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 57 (1999).

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Plaintiff correctly observes the Board did not specify whether its grant of

the (c) variances was pursuant to N.J.S.A. 40:55D-70(c)(1)—a (c)(1) variance—

or N.J.S.A. 40:55D-70(c)(2)—a (c)(2) variance. But we do not agree with

plaintiff's contention that the Board was required to provide analysis relating to

its grant. The Board's resolution included its "findings of fact and conclusions

based thereon" in compliance with N.J.S.A. 40:55D-10(g). From those findings,

we deduce, as did the trial judge, the Board granted (c)(2) variances.

As to those variances, our Supreme Court explained:

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. The applicant bears the

burden of proving both the positive and negative

criteria.

For a (c)(2) variance, approval must be rooted in the

purposes of the zoning ordinance rather than the

advancement of the purposes of the property owner.

Thus, the positive criteria include proof that the

characteristics of the property present an opportunity to

put the property more in conformity with development

plans and advance the purposes of zoning[.] [T]he

negative criteria include proof that the variance would

not result in substantial detriment to the public good or

substantially impair the purpose of the zone plan.

[Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 30 (2013)

(citations omitted).]

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As it was free to do, see Hawrylo v. Bd. of Adjustment, Harding Twp.,

249 N.J. Super. 568, 579 (App. Div. 1991), the Board evidently accepted the

testimony of developer's engineer that the grant of the setback relief would

conform with other developments intersecting Church Road and moreover,

would allow the houses on lots 8.01 and 9.01 to conform with the homes in the

development facing Feldmus Lane with side garages, producing a more

aesthetically pleasing development. Instead of homes on those two lots facing

Church Road, the Board determined "that it is appropriate to have the houses

face the new cul-de-sac roadway as opposed to Church Road so that same fits

the character of the rest of the subdivision and eliminates driveways which

would have access to Church Road, which is a high volume roadway[.]" The

Board also adopted the uncontroverted testimony of developer's engineer, and

concluded the variances would not have any negative impact, and "it is more

appropriate to face the new roadway than it would be to have the [two] corner

lots facing Church Road[,] and the application is similar to that which has been

previously approved for the adjoining lot[.]"

We note the Board also perpended the detailed plans submitted by

developer that illustrate the location of the two corner lots on Church Road in

relation to the entire development. Those plans, in conjunction with the

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engineer's testimony, supported the position advanced to the Board by

developer's counsel: "[I]f you don't approve the variance . . . [t]he houses merely

get moved [twenty] feet further away from Church Road. And the driveway and

the garage will now be in the front of the house." The conformity of houses in

the cul-de-sac and the elimination of ingress and egress on the busier Church

Road support the Board's implicit finding that developer met the positive

criteria.

From the proffered evidence and the reasonable inferences that could have

been drawn therefrom, the Board found developer's counsel's suggestion—made

in summation to the Board that the development with the variances is "a better

plan and design"—a sound one, supporting the Board's finding that the

deviations, also made in other developments, would not have a negative impact

resulting in substantial detriment to the public good or substantial impairment

to the purpose of the zone plan. The Board obviously focused on the

surrounding properties in making that determination and found the development

with the granted variances was a better zoning alternative.

We defer to the Board's factual determinations, which were based on its

assessment of the witness testimony and documentary evidence, and its

"'peculiar knowledge of local conditions[.]'" Burbridge, 117 N.J. at 385

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(quoting Medici, 107 N.J. at 23; Kramer, 45 N.J. at 296). We see no basis to

disturb the Board's conclusions regarding the grant of the variances.

The Board also considered developer's requests for exceptions to

subdivision approval requirements—or "design waivers"—only one of which is

in issue on appeal. N.J.S.A. 40:55D-51(a) permits a planning board to grant

exceptions from the requirements for subdivision

approval as may be reasonable and within the general

purpose and intent of the provisions for subdivision

review and approval of an ordinance adopted pursuant

to this article, if the literal enforcement of one or more

provisions of the ordinance is impracticable or will

exact undue hardship because of peculiar conditions

pertaining to the land in question.

In his merits brief, plaintiff set forth Ordinance § 348-8.11.1D, the design

standards from which developer sought the waiver in question; it provides in

part:

Driveways serving one- or two-family dwellings shall

be no closer than five feet to a side or rear lot line,

except that lots less than 4[]000 square feet in lot area

or [forty] feet or less in lot width shall have driveways

no closer than two feet to a side or rear lot line.

Developer's engineer described the waiver in his testimony before the

Board:

On lots 8.02 and 8.03, 8.04, 9.03, 9.04, 2.02, 2.09 and

2.10, we would request that a setback of two feet to the

property line for the driveway where five feet is

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required. That gives us room to basically have a side

back out, to provide a side garage out of house, back

out and then come down. We . . . would be willing to

stipulate that driveways would have to be ten feet apart

as a condition, so there's separation between driveways.

But, basically, we're trying to keep the driveways

consistent going down the roadway, so that they're not

up against each other. So, we're requesting that waiver

of, basically, two feet.

Addressing the waiver request in its resolution, the Board found:

WHEREAS, [developer] . . . requires a waiver

with respect to the setback for the driveways, [five feet]

required, [two feet] proposed on eight of the proposed

lots; and

WHEREAS, the Board is amenable to granting

that waiver provided [developer] agrees that the

driveways shall be located at least [ten feet] apart and

[developer] has agreed to same[.]

We agree with plaintiff that the Board failed to address how "the literal

enforcement of one or more provisions of the ordinance is impracticable or will

exact undue hardship because of peculiar conditions pertaining to the land in

question." N.J.S.A. 40:55D-51(a). Unlike its findings related to the variances,

we cannot glean the Board's reasoning from its findings. The bald conclusions

set forth in the resolution are inadequate to support the grant of the waiver.

We fully appreciate, as we recognized in Amato v. Randolph Twp.

Planning Bd., 188 N.J. Super. 439, 447 (App. Div. 1982), "if particular

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requirements for development are imposable upon an applicant as conditions of

subdivision approval, they may only be imposed, relieved from, or varied as part

of the consideration of and action on the subdivision application." We

determined a planning board has the discretionary power under N.J.S.A.

40:55D-51(a) to grant relief from any requirement. Id. at 452.

But, here, as was the case in Amato,

no reviewing court, either this court or the Law

Division, can make a determination as to whether that

power was reasonably and sustainably exercised since

the resolution here complained of, which required strict

enforcement, is completely silent as to the

considerations set forth by N.J.S.A. 40:55D-51(a)

governing disposition of an application for relief.

There is not a single finding of fact or conclusion

respecting the reasonableness of plaintiffs' request, the

consistency thereof with the general purpose and intent

of subdivision control, the impracticability of strict

enforcement or the undue hardship resultant from strict

enforcement.

[Ibid.]

In short, the Board failed to state why the exception for the driveways should be

granted under the statutory criteria. 7 The necessity of those findings has long

been a bedrock requirement in administrative law. Id. at 453.

7

The trial court's conclusory decision on this issue, without mention of the

statutory requirements, states:

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We are constrained to remand this case to the Board for reconsideration

and specific findings with regard only to the driveway design waiver. Ward v.

Scott, 11 N.J. 117, 129 (1952). We leave to the Board's discretion the outcome

of the exception request. Affirmed in part; remanded in part. We do not retain

jurisdiction.

The approval of the design waivers by the Board

was within the exercise of sound discretion of the

Board, and in reliance upon the expert

recommendations of its engineer. Waivers are

distinguishable from variances in that they address

issues of design standards for subdivision and site plan

approval and the Board routinely considers

modifications of these design standards.

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