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NOT FOR PUBLICATION WITHOUT THE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-3212-19
MICHELE GONZALEZ,
Plaintiff-Appellant,
v.
ANTHONY ODUNLAMI,
PLANNING BOARD OF THE
TOWNSHIP OF HOLMDEL, and
TOWNSHIP OF HOLMDEL,
Defendants-Respondents.
____________________________
Submitted February 10, 2021 – Decided April 23, 2021
Before Judges Sumners and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-4343-18.
Robert M. Mayerovic, attorney for appellant.
Giordano, Halleran & Ciesla, PC, attorneys for
respondent Anthony Odunlami (Adam Garcia, on the
joint brief).
Harter & Pfleger, LLC, attorneys for respondents
Planning Board of the Township of Holmdel (Martin F.
Pfleger, on the joint brief).
PER CURIAM
Plaintiff Michele Gonzalez filed a verified complaint in lieu of prerogative
writ objecting to defendant Planning Board of the Township of Holmdel's
(Board) grant to defendant Anthony Odunlami of preliminary and final
subdivision approvals, with bulk and design variances approval to demolish an
existing one-family home and construct three new homes on the site. The Law
Division dismissed Gonzalez's complaint with prejudice and upheld the Board's
decision. We agree and affirm.
I.
Odunlami owned a one-family house situated on approximately 4.6 acres
of land (the Property) in the Township of Holmdel that he wanted to demolish
to create three new building lots for the construction of three one-family homes.
He successfully applied to the Board for "preliminary and final major
subdivision approval, 'c' or 'bulk' variance relief, design waiver relief, and such
other relief or approval" as the Board or its consultants may deem necessary to
permit the demolition of the existing property and the major subdivision of the
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land to create three single-family residential home. The application sought the
following variances:
(i) minimum driveway widths of [twelve feet] and
[sixteen feet] whereas [Ordinance] 30-80a requires a
minimum driveway width of [eighteen feet] (one-way
traffic) and [twenty-five feet] (two-way traffic);
(ii) a driveway setback approximately [twelve feet]
from the northerly tract boundary line whereas
[Ordinance] 30-80a requires a minimum setback of
[twenty feet];
(iii) a landscape easement width of [fifteen feet]
whereas [Ordinance] 30-54 requires a minimum width
of [forty feet];
(iv) a steep slope disturbance of 20,104 [square feet] of
slopes greater than [twenty-five percent] whereas
[Ordinance] 30-116.6.f.1 provides for a maximum
disturbance of 5,000 [square feet];
(v) a disturbance of 2,340 [square feet] of slopes greater
than [twenty-five percent] whereas [Ordinance] 30-
116.6.f.1 prohibits disturbance of any slopes greater
than [twenty-five percent];
(vi) relief from [Ordinance] 30-116.6.f.3 to permit
steep slopes outside a conservation easement;
(vii) relief from [Ordinance] 30-116.6.f.4 and 5 to
permit the creation of slopes greater than [twenty-five
percent]; and
(viii) relief from [Ordinance] 30-116.10.c to waive the
formal submission of a woodlands preservation plan.
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[(Pa57; Pa33-34).]
Based upon direction from the Board Secretary and Administrative Officer of
the Board, Odunlami published legal notice in the Asbury Park Press and sent
certified mail to all owners of real property located within 200 feet of the
Property, informing them that his application would be heard by the Board on
June 5, 2018.
The Board Secretary, however, realized on June 5 that a primary election
was scheduled that day and thus Odunlami's application would have to be
adjourned. Consistent with the Board's practice, she posted a notice of
adjournment on the front doors of the Township courthouse and the town hall
stating the Board would consider Odunlami's application at a Special Board
meeting on June 11. The Board also timely published notice of the rescheduled
hearing date in three local newspapers.
The Board considered Odunlami's application over the course of three
hearings. On June 11, Odunlami testified, as did his expert, Andrew Comi, a
licensed professional engineer, concerning the Property's existing condition and
the nature and scope of the proposed development. When the Board allowed
public comment, Gonzalez's husband, Ramon, acting as her proxy, questioned
whether proper notice was given regarding the rescheduled hearing date. The
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Board attorney and the Board chair responded that proper notice was provided
through the notifications posted on June 5 and published in the newspapers.
After closing public comment, the Board announced Odunlami's application
was continued to July 24, stating it would make an on-site visit to the Property
on July 10.
The Board evidentially continued Odunlami's hearing on August 7 and
September 4, the date the Board approved the application by a four-to-one vote.
A corresponding resolution of approval was adopted by the Board on October
16.
Gonzalez challenged the Board's action by filing a complaint in lieu of
prerogative writs asserting the Board lacked proper jurisdiction to consider
Odunlami's application due to improper notice and that its approval of the
application was arbitrary, capricious, or unreasonable. She demanded the court
declare the Board's resolution to be null and void and that any permits issued to
Odunlami by defendant Holmdel in furtherance of the resolution were without
force and effect.1
Following briefing and argument, Judge Joseph P. Quinn issued an order
and thorough written decision on March 18, 2020 rejecting Gonzalez's challenge
1
A stipulation of dismissal was later filed dismissing Holmdel.
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to the Board's resolution. The judge determined "that the . . . Board extensively
considered all relevant and legal elements relating to the application over three
days of hearings and site inspections, and that approval was not arbitrary,
capricious, or unreasonable."
II
Gonzalez contends that the Board was without jurisdiction to consider
Odunlami's application because the notice given to the property owners within
200 feet of the Property was defective, thereby causing the Board not to have
jurisdiction to act on the application. She maintains the Board's June 5, 2018
adjournment notice posted on the municipal buildings was not statutorily
authorized, as a municipal body can only act by way of official action on the
record. We disagree.
There is no doubt that Odunlami complied with the notice provisions of
N.J.S.A. 40:55D-12 by publishing notice of his application in the Asbury Press
and sending it by certified mail to Gonzalez and other property owners within
200 feet of the Property. Relying on Pond Run Watershed Ass'n v. Twp. of
Hamilton Zoning Bd. of Adjustment, 397 N.J. Super. 335 (App. Div. 2008),
Judge Quinn did not err—as Gonzalez argues—in upholding the Board's
meeting rescheduling with its door postings. In Pond Run, "the [Hamilton
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Township Zoning] Board[] chairman announced on the record the adjournment
of the hearing to a future date." Id. at 349. Thus, we agree with the trial court's
observation that "[t]here is no . . . provision in . . . [N.J.S.A. 40:55D-112]
requiring additional certified notices if an application is carried to another
meeting. The [statute] only requires initial notice." Ibid. (first, second, and fifth
alterations in original).
Because the Board could not meet on June 5, it could not state on the
record that Odunlami's application was adjourned. Thus, consistent with its
practice, the Board understandably placed adjournment notices on the front door
where the meeting was to be held and where municipal business was conducted.
See N.J.S.A. 40:55D-10(b) (allowing municipal bodies to enact rules that govern
their hearings). This was adequate notice to the public.
Moreover, as the judge recognized, Gonzalez's husband, "as [her] proxy
and also neighboring property owner and interested party," saw "the [p]osted
[n]otice advising him of the adjournment to the June 11 . . . special meeting,"
where he appeared and addressed the Board. See Cox & Koenig, N.J. Zoning &
2
The statute, in pertinent part, requires that public notices for a proposed
variance "shall state the date, time and place of the hearing, [and] the nature of
the matters to be considered . . . ."
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Land Use Admin., § 18-1.2 at 363 (2021) ("Note, however, that once [a person
entitled to notice] has appeared [to a public hearing], even a party asserting that
he is prejudiced is estopped from asserting that he got no notice."). Indeed, there
was "no harm, no foul" in the Board's adjournment notification.
III
Turning to the merits of the Board's action, Gonzalez contends its
resolution was arbitrary, capricious, or unreasonable, and must be vacated
because Odunlami's major subdivision application was a self-created hardship
that does not qualify as a hardship under N.J.S.A. 40:55D-70(c)(1). She also
argues Odunlami neither satisfied the positive or negative criteria necessary for
the Board to approve his application. Again, we disagree.
An application for a variance from a bulk or dimensional provision of a
zoning ordinance is governed by N.J.S.A. 40:55D-70(c). Subsection 70(c)(1)
permits a variance when strict application of the zoning ordinance would create
exceptional practical difficulties or exceptional hardship because of the
characteristics of the subject property. N.J.S.A. 40:55D-70(c)(1). "Undue
hardship refers solely to the particular physical condition of the property, not
personal hardship to its owner, financial or otherwise." Jock v. Zoning Bd. of
Adjustment of Twp. of Wall, 184 N.J. 562, 590 (2005).
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An applicant who pursues a variance under N.J.S.A. 40:55D-70(c)(1)
must establish that the conditions of the property present a hardship and efforts
have been made to bring the property into compliance with the ordinance. Ten
Stary Dom P'ship v. Mauro, 216 N.J. 16, 29 (2013). "Those efforts may include
attempts to acquire additional land or offers to sell the nonconforming lot to
adjacent property owners." Id. at 30 (citing Jock, 184 N.J. at 594). Establishing
undue hardship constitutes a showing of the "positive" criteria for a (c)(1)
variance. Ibid.
"In addition, an applicant for a (c)(1) variance must satisfy the negative
criteria." Ibid. (citing Nash v. Bd. of Adjustment of Morris Twp., 96 N.J. 97,
102 (1984)). "The negative criteria require proof that the variance will not result
in substantial detriment to the public good or substantially impair the purpose
of the zoning plan." Ibid.
The Board's decision was proper as it supported by Comi's uncontroverted
testimony. See id. at 33 (holding a board's resolution to grant or deny a variance
must be based on findings of fact in the record) (citations omitted). Comi
thoroughly explained why the variances were necessary for Odunlami to develop
his property because of its peculiar physical features. He also indicated that
Odunlami's development could be completed without substantial detriment to
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the public good or substantial impairment of the intent and purpose of the zone
plan and zoning ordinance. Comi stated:
Regarding the access to these proposed sites, we
met with your Board professionals before we submitted
an application. At first[,] we were looking at or
proposing three accesses off of Holmdel Road. We
soon decided that that wouldn't be the best idea, as we
would ruin the character of the steep slopes, the steep
wooded slopes along Holmdel Road.
Next[,] we thought of proposing a cul-de-sac, or
a traditional [twenty-eight]-foot wide cul-de-sac, with
sidewalks. But again, that would be more intense and
would not really fit with the character of this
neighborhood residential community.
So[,] . . . we settled upon an [eighteen]-foot wide
shared driveway, which essentially would be a slight
expansion of the existing driveway that currently exists.
We feel that this is, although we require a
variance for the width of this driveway, which requires
[twenty-five]-foot wid[th] for two-way access, . . . is
appropriate, given that the only vehicles that will be
needed to access this site would be [] these single-
family dwellings and emergency vehicles, if necessary.
No public vehicles or other service vehicles would be
needed to access the site.
Additionally[,] there are three internal
driveways, of [twelve] feet and [sixteen] feet width.
Lot 31.01, the largest of the three lots, will have a
[sixteen]-foot wide driveway. The remaining two lots
will have a [twelve]-foot wide driveway.
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Similarly[,] these require a variance for not
providing a [twenty-five]-foot wide, two-way driveway
width.
The proposed driveway, the main driveway, will
be privately maintained. We propose a homeowners
associat[ion] will be created to manage the maintenance
of this shared driveway.
....
Additionally, the entrance to the site is proposed
to remain. However, it will be [twelve] feet from the
northerly property line, and [twenty] feet is required.
Rather than relocating the driveway and disturbing
some of the wooded steep slopes that are along Holmdel
Road, we propose to leave the driveways in the existing
location as it's already cleared, and provide good
advantage point in both the north and south direction.
[(emphasis added).]
In satisfying the positive and negative criteria, Odunlami demonstrated his
hardship was not self-created, meeting the requirements necessary for the Board
to grant variance relief.
In addition, the Board visited the site, which was not its usual course, and
held three hearings to discuss Odunlami's application. The Board resolution
fully detailed the initial application, the testimony and factual history of the
proceedings, the modifications to the application, and articulated the statutory
bases for the Board's actions with regards to the Municipal Land Use Law,
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N.J.S.A. 40:55D-1 to -163. Gonzalez has not overcome the presumption of
validity, nor demonstrated the unreasonableness of the Board's action. See
Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of Twp. of Franklin, 233 N.J.
546, 558 (2018). There is nothing in the record showing that the Board's
decision was arbitrary, unreasonable, or capricious; thus, as Judge Quinn
appropriately determined, its decision should not be disturbed.
Affirmed.
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