Peter Franco v. Planning Board of the Borough of Little Silver

NOT FOR PUBLICATION WITHOUT THE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-0972-22

PETER FRANCO and

LINDA FRANCO,

Plaintiff-Appellants,

v.

PLANNING BOARD OF

THE BOROUGH OF

LITTLE SILVER,

Defendant-Respondent.

_________________________

Submitted November 29, 2023 – Decided January 16, 2024

Before Judges Firko and Susswein.

On appeal from the Superior Court of New Jersey, Law

Division, Monmouth County, Docket No. L-3655-19.

Michael A. Irene, Jr., attorney for appellants.

Leckstein & Leckstein, LLC, attorneys for respondents

(Mark A. Leckstein, on the brief).

PER CURIAM

Plaintiffs Peter and Linda Franco appeal from a November 1, 2022 Law

Division order entered by Judge Linda Grasso Jones, dismissing their complaint

and affirming defendant Little Silver Planning Board (Board)'s decision to deny

their application for a variance to subdivide a lot they own. After carefully

reviewing the record in light of the governing legal principles, we affirm

substantially for the reasons explained in Judge Jones's thorough written

decision.

I.

In April 2019, plaintiffs submitted a subdivision and variance application

to the Board, which conducted a hearing on August 1, 2019. On September 5,

2019, the Board adopted a five-page resolution memorializing its decision to

deny plaintiffs' application.

Plaintiffs filed a complaint in lieu of prerogative writs challenging the

Board's decision. In August 2022, Judge Jones convened a trial de novo after

which she affirmed the Board's denial of plaintiffs' application by order entered

on November 1, 2022. The order was accompanied by a twenty-two-page

written opinion.

We discern the following pertinent facts from the hearing record.

Plaintiffs own real property comprising approximately 2.5 acres. A two-story

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single-family residence and two detached family garages are located on the

existing lot. The property is on a cul-de-sac with the rear of the property facing

a creek. Plaintiffs sought to divide the property into two lots. One of the

proposed lots, lot 8.08A, would maintain the existing house and garages. The

other proposed lot, lot 8.08B, would be subject to development with a new

single-family residence. Because lot 8.08A would only have 29.93 feet in

frontage—less than the Little Silver ordinance requirement of 75 feet—plaintiffs

sought minor subdivision approval, including an application for lot frontage

variance relief pursuant to the Municipal Land Use Law (MLUL), N.J.S.A.

40:55D-1 to -163. Plaintiffs presented their application to the Board as an

N.J.S.A. 40:55D-70(c)(2) variance ((c)(2) variance).1

Plaintiffs presented expert testimony from a licensed professional

engineer and planner. He testified about the benefits of plaintiffs' application.

The expert opined the "proposed subdivision brings this [property] more into

compliance with the R-2 zoning. As it sits now, it is a very oversized lot. Even

1

Plaintiffs also argued to the trial judge that the Board should have granted

their application as a "hardship" variance under N.J.S.A. 40:55D-70(c)(1).

Judge Jones rejected that argument and plaintiffs have not renewed the argument

on appeal.

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as the lot to the south, I said before, that still is three times the required lot area,

but it's certainly more in conformance with the subdivision."

The Board heard competing expert testimony from its planner. She

testified the variance and subdivision would make plaintiffs' property non -

conforming with the neighborhood. She stated:

Additionally, just because the lot is larger than what's

permitted in the zone doesn't mean that it's too big and

needs to be subdivided. The lot area is a minimum, so

anything larger than that, you know, is permitted in the

zone district.

[Plaintiffs' expert] did argue that the lot area was larger

than all of the neighboring properties, but every other

property on that street seems to have a lot frontage that

meets the zone requirements. If you look at the map,

all of the lots are pretty conforming, rectangular-shaped

and even the other cul-de-sac lots seem to be large,

around 100 feet, if not larger than the 75 feet.

So I don't think this is a better planning alternative.

The Board's planner also opined that flag lots—rear lots with a narrow

corridor running alongside front lots permitting access to a roadway—are "not

good planning practice, generally." She explained:

The flag part of the flag lot where it meets the road is

only 29 feet wide and as given the length of the

driveway, you would want two-way vehicular access,

so in and out, and in addition to some buffer for the

neighbors. You notice the neighbor to the west of the

property, his house meets that lot line. The driveway is

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already there, but it might be impacted further by

subdividing the lot.

....

Another purpose of the [MLUL] is to promote a

desirable visual environment through creative

development techniques and good civic design and

arrangement. As I stated, most municipalities do not

encourage the creation of flag lots, so I don't think that

this would be promoting that municipal land use.

In relying on the expert opinion of its planner, the Board determined "the

applicant failed to demonstrate positive criteria that would justify the

subdivision a[t] that location with a substantial reduction in street frontage and

creating a flag lot."

After a thorough review of the record, Judge Jones rejected plaintiffs'

arguments and affirmed the Board's decision. Judge Jones stated:

[A]s reflected in the resolution adopted by the Board

below on September 5, 2019, the Board determined,

relying upon the testimony of the Board's expert

planner, that plaintiffs had not met their burden [sic] of

proving the positive and negative criteria applicable to

a (c)(2) variance. The court in reviewing the actions of

the Little Silver Planning Board thus cannot find that

the decision of the Board denying plaintiff[s']

application for variance approval was arbitrary,

capricious and unreasonable.

This appeal follows.

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On appeal, plaintiffs contend Judge Jones erred in rejecting their argument

that the Board's denial of their variance application was arbitrary, capricious,

and unreasonable. They maintain their application satisfied the criteria for a

(c)(2) variance. They also contend the Board's denial "was actually rooted in

incorrect and improper factors and considerations." Specifically, plaintiffs

argue the Board incorrectly assumed flag lots are not permitted, and improperly

considered the question of a public access easement.

II.

We begin our analysis by acknowledging the legal principles governing

this appeal. "When reviewing a trial court's decision regarding the validity of a

local board's determination," appellate courts "'are bound by the same standards

as was the trial court.'" Jacoby v. Zoning Bd. of Adj. of Borough of Englewood

Cliffs, 442 N.J. Super. 450, 462 (App. Div. 2015) (quoting Fallone Props., LLC

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

"Thus, while we give substantial deference to findings of fact, it is essential that

the board's actions be grounded in evidence in the record." Fallone Props., LLC,

442 N.J. Super. at 562. "The proper scope of judicial review is not to suggest a

decision that may be better than the one made by the board, but to determine

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whether the board could reasonably have reached its decision on the record."

Jock v. Zoning Bd. of Adjustment of Twp. of Wall, 184 N.J. 562, 597 (2005).

Stated another way, municipal decisions enjoy a presumption of validity

and will only be overturned if arbitrary and capricious or unreasonable. See

ibid. Furthermore, zoning boards, "'because of their peculiar knowledge of local

conditions[,] must be allowed wide latitude in the exercise of delegated

discretion.'" Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (quoting Kramer

v. Bd. of Adjustment, 45 N.J. 268, 296 (1965)). And because the MLUL

"exhibits a preference for municipal land use planning by ordinance rather than

by variance," ibid. at 284, a reviewing court accords less deference to the grant

of a variance than it does to a denial. See Scully-Bozarth Post # 1817 of

Veterans of Foreign Wars of U.S. v. Plan. Bd. of City of Burlington, 362 N.J.

Super. 296, 314 (App. Div. 2003). We consider questions of law, however, d e

novo without deference to interpretive conclusions we believe mistaken.

Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of Twp. of Franklin , 233 N.J.

546, 559 (2018).

III.

We first address plaintiffs' contention "the Board's denial of the single

item of variance relief necessary to allow minor subdivision of this grossly

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oversized lot, and thus the resulting denial of the subdivision application as a

whole, is action that is arbitrary, capricious and unreasonable." Relatedly, we

address plaintiffs' contention they satisfied both the "positive" and "negative"

criteria required for variance relief.

N.J.S.A. 40:55D-70(c)(2) provides, in pertinent part:

[W]here 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,

[the zoning board may] grant a variance to allow

departure from regulations pursuant to article 8

[N.J.S.A. 40:55D-62 to -68.6] of this act . . . .

To obtain a (c)(2) variance, an 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, 442 N.J. Super.

at 471. Thus, "no [(c)](2) variance should be granted when merely the purposes

of the owner will be advanced." Kaufmann v. Plan. Bd. for Warren Twp., 110

N.J. 551, 563 (1988). "The grant of approval must actually benefit the

community in that it represents a better zoning alternative for the property."

Ibid. "The focus of a [(c)](2) case," our Supreme Court stressed, must be "on

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the characteristics of the land that present an opportunity for improved zoning

and planning that will benefit the community." Ibid.

The "positive criteria" for a variance are "rooted in the purposes of the

zoning ordinance rather than the advancement of the purposes of the property

owner," such as "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." Ten Stary Dom P'ship v. Mauro, 216 N.J. 16,

30 (2013). The "negative criteria" are the resulting burdens, such as "the impact

the variance will have on the specific adjacent properties affected by the

permitted deviations from the ordinance." Lang v. Zoning Bd. of Adjustment of

Borough of N. Caldwell, 160 N.J. 41, 57 (1999).

With respect to positive criteria, plaintiffs argue (c)(2) variance relief

should have been granted to address their "very oversized" lot. But the Board

accredited the contrary expert testimony of its planner. The Board's resolution

states: "[t]he Board having considered the testimony of [its planner], a licensed

planner, and [plaintiffs' expert], a licensed engineer with planning credentials

and finds that [its planner's] testimony was more credible."

As Judge Jones aptly noted, "the Board is free to accept or reject the

opinions of experts who testify before the Board." See Allen v. Hopewell Twp.

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Zoning Bd. of Adjustment, 227 N.J. Super. 574, 581 (App. Div. 1988) ("It is

within the province of the board of adjustment to accept or reject the opinions

of . . . the expert planner. . . ."). Therefore, Judge Jones concluded, "[t]he Board

was free to accept the testimony of its planner over the testimony of plaintiffs'

expert planner." We agree with Judge Jones that the Board's decision was

grounded in evidence in the record, and, therefore, was not arbitrary, capricious

and unreasonable. See Jock, 184 N.J. at 597.

Plaintiffs' argument on appeal relies heavily on their interpretation of

Kaufmann and Green Meadows at Montville, LLC v. Planning Bd. of Twp. of

Montville, 329 N.J. Super. 12 (App. Div. 2000). In Kaufmann, the Court

affirmed a (c)(2) variance that created two-nonconforming lots—each lot would

have a width of 83.74 feet where 100 feet was required. 110 N.J. at 554. The

proposed lots "would be similar in character to the other lots in the area" and the

applicants' actual lot was "much larger and wider than those." Id. at 556. The

surrounding area "consists of a mix of older and newer residential homes with

the vast majority of lots having frontage widths of less than 100 feet." Id. at

555.

Furthermore, the Court noted, a (c)(2) variance would promote the general

welfare, establish appropriate population densities, and provide "sufficient

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space to meet public needs." Id. at 556. Thus, the Court affirmed the planning

board's conclusion that "the benefit of this deviation would substantially

outweigh any resulting harm or detriment." Ibid.

Here, unlike the situation in Kaufmann, plaintiffs' proposal would not

create properties with very similar characteristics to other lots in the area.

Although plaintiffs' lot is larger than the neighboring properties, all the

properties on the street satisfy the frontage requirements. As noted by the

Board's expert, "all of the lots are pretty conforming, rectangular-shaped and

even the other cul-de-sac lots seem to be large, around 100 feet, if not larger

than the 75 feet [frontage]." As noted in the Board's resolution, "lots on the

water often greatly exceed the minimum required." Furthermore, the record

shows there are no flag lots on the street.

It also bears noting that in Kaufmann, the Court affirmed the planning

board's subdivision approval. Id. at 566. Here, plaintiffs seek to reverse the

Board and the trial court. See Kramer, 45 N.J. at 296 ("Such public bodies,

because of their peculiar knowledge of local conditions must be allowed wide

latitude in the exercise of delegated discretion."); see also Scully-Bozarth Post

# 1817 of Veterans of Foreign Wars of U.S., 362 N.J. Super. at 314 (advising

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that a reviewing court grants more deference to the denial of a variance than to

the grant of a variance).

Plaintiffs' reliance on Green Meadows is also misplaced. In Green

Meadows the planning board denied the plaintiff's proposal "to subdivide an

undeveloped tract of approximately 8.5 acres into eight lots for the construction

of one-family homes." 329 N.J. Super. at 15. A seven-lot subdivision could

have been built without any variance relief. Id. at 17. The board's denial was

reversed for being "arbitrary and unreasonable." Id. at 24. We explained:

[The Board's] basic objection to a proposed eight-lot

subdivision, expressed both in the discussions on the

record and in the Board's resolution, was to the

"density" of the proposed land utilization. However,

the applicable zoning ordinance deals with density by

prescribing lot sizes, and all of the proposed lots exceed

the applicable minimums. A "density" of construction

consistent with the minimum lot size requirements of

the zoning ordinance is not a detriment.

[Id. at 23-24.]

Unlike Green Meadows, where the application was denied for the non-

variance issue of "density," here, plaintiffs' application was denied because

proposed lot 8.08A would have a frontage of 29.93 feet—45.07 feet less than

required by the applicable ordinance. That lot would be the only property in the

neighborhood without the required frontage.

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We are likewise unpersuaded by plaintiffs' argument their application

satisfied the "negative" criteria required for variance relief. Plaintiffs maintain

the "trivial" variance "would result in no 'substantial detriment' to the public

good, nor 'substantial impairment' of the intent and purpose of the zone plan and

zoning ordinance." Plaintiffs also contend "that the Board's Resolution fails to

make any findings whatsoever regarding the 'negative' criteria." We are

satisfied the Board's findings with respect to negative criteria are couched in its

decision to accept the testimony of the Board's planner over plaintiffs' expert's

testimony.

Plaintiffs' expert testified:

In terms of the negative criteria, the [land]…especially

on the site for the new home on Lot B, has had a home

there since 1870…It's not new or changed. In fact, the

home was there physically until sometime during 2016,

and was moved to its current location to the south. So

a home, on this Lot B, is not something new or really

different. In fact,…for…quite a long period of time

that home has been there.

The subdivision pattern [is] very much in keeping with

the neighborhood, so I don't think there is a detriment

in terms of the character of the neighborhood. So it's

my opinion that the variance can be granted without any

substantial detriment to the public good and it can be

granted without…substantially impairing the intent and

purposes of the Zone Plan in the Ordinance.

In contrast, the Board's planner testified:

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[Plaintiffs' expert] also stated that the

application…would not negatively impact the zone

district and the purposes of the M[LUL] I slightly

disagree, respectfully. He stated the purpose to

promote the establishment of appropriate population

densities in concentrations, however, that purpose goes

onto say that it will contribute to the [well-being] of

persons, neighborhoods, communities and regions in

the preservation of the environment.

I think that this lot area, creating the frontage variance

is not preserving the natural environment around it and

is also not contributing to the [well-being] of the

neighbors.

We reiterate—as Judge Jones aptly acknowledged— a zoning board has

the choice of accepting or rejecting conflicting testimony. See Allen, 227 N.J.

Super. at 581. When that decision is reasonably made, it is conclusive on appeal.

See ibid. In this instance, the negative impact of plaintiffs' proposal is clearly

explained. The resolution notes, "[p]roposed Lot 8.08A, which will retain the

existing home, will have frontage of 29.93 feet or a little over 1/3 the

requirement." Although the [current] lot is oversized, it is waterfront and

"25,000 square feet is a minimum for the zone and lots on the water often greatly

exceed the minimum required." Additionally, "flag lots are discouraged and

prohibited in most zoning ordinances."

Thus, the record clearly shows the Board considered and rejected

plaintiffs' "negative criteria" contention. Relying on their planner's expert

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testimony, the Board determined plaintiffs failed to meet their burden of proving

the positive and negative criteria applicable to a (c)(2) variance.

IV.

We turn next to plaintiffs' contention the "Board's denial was rooted in

incorrect and improper factors and considerations." Specifically, plaintiffs

contend the Board presumed incorrectly the Borough Ordinance does not permit

flag lots. Plaintiffs also contend the "real reason" for the Board's decision was

concern the New Jersey Department of Environmental Protection (DEP) would

require a public access easement across their property. Neither of these

contentions have merit.

It is true that there is no absolute prohibition against flag lots in Little

Silver's land use ordinances. However, there is also no provision allowing flag

lots. Judge Jones concluded, "[t]he lack of a provision allowing flag lots, which

have insufficient frontage in the Little Silver land use ordinances constitutes a

lack of authority in the Little Silver Land use ordinances for flag lots." Judge

Jones explained:

A flag lot is so named because the driveway does not

have sufficient frontage on the public road. The

driveway forms the "flagpole," leading back to the

remainder of the property; the wider remainder is the

"flag." Nothing has been presented to the court

indicating that any provision in the Little Silver land

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use ordinances allows development of property with

insufficient frontage (the flagpole) as long as the

property widens at the back, at the back of the driveway

(the flag). Inclusion of such an ordinance provision

would indicate approval of flag lots in Little Silver's

land use ordinances, perhaps under certain

circumstances and/or in certain land use zones. Based

upon the record presented, as plaintiff[s] contend[], the

court must conclude that Little Silver's land use

ordinances do not provide for the development of

property with insufficient frontage utilizing a flag lot

configuration.

Development that is not permitted in a municipality's

land use ordinances is not permitted, that is, prohibited.

A flag lot is created due to a lack of available frontage.

If flag lots, that is, creation of a separate lot with less

frontage than is required under the applicable land use

ordinance were permitted, plaintiff[s] would not have

needed to file an application for variance relief. The

Borough's land use ordinances for the zone require 100

feet of frontage, reduced to 75 feet of frontage on a cul-

de-sac. Plaintiffs' proposed subdivision provided for

29.93 feet of frontage on the flag lot. The mere fact of

the filing of plaintiffs' application requesting variance

relief due to the insufficient frontage on the flag lot

recognizes that development of the subject property

using a flag lot is not permitted, without variance relief.

We agree with Judge Jones's conclusion that the Board's statement that Little

Silver's land use ordinances do not permit flag lots with insufficient frontage

was neither arbitrary, capricious, or unreasonable.

Nor are we persuaded by plaintiffs' argument "the real reason for the

Board's denial was concern about a possible DEP requirement for an easement

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across [p]laintiff[s'] property to provide public access to the Shrewsbury River."

Plaintiffs maintain "the entire record of proceedings" reveals the Board denied

its application because of the potential easement. They point to paragraph

eighteen of the Board's resolution, which states: "[a] number of residents

complained about the way the subject property is maintained, possible violation

of zoning laws and worries about the public access." Plaintiffs further argue,

"the words of the Board [m]embers themselves . . . show the scope of the

impropriety."

The hearing transcript confirms individual Board members and interested

members of the public expressed concern about a potential DEP-mandated

public access on plaintiffs' property if the subdivision application was approved.

But the record also shows the Board attorney forcefully cautioned the Board:

We're not an enforcement Board. What went on in the

past is not really before us. What's before us tonight is

a zoning and planning issue and a variance for what is

or isn't a flag lot. And . . . we have testimony from

planners, so I think are very specific as to what they

think the rules are. I think both parties agree that the

issue is really a [(c)(2)] variance. I don't think there is

any disagreement between the two planners. Now the

question is whether or not the positive or the negative

criteria have been met and that is for the Board to really

decide.

The Board attorney reiterated:

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I would instruct the Board, if they deny this application,

it should not be based upon the fact where the public

access is, if the Applicant has no control over it. So

that should not be the . . . reason for denying the

application. If they are going to deny the application,

it must be on the planning aspects that have been

testified to as to the positive and negative criteria.

After these instructions, a Board member indicated the public access

location "has a bearing on how I vote." Again, the Board was instructed not to

consider the issue. After additional discussion on the public access issue, the

Board attorney repeated "[i]t is a flag lot issue. Don't get into what they have to

do." The attorney continued:

To maybe answer your question, the focus of a

[(c)(2)]variance is the Board needs to decide if the

characteristics of the land, if the development they are

improving present an opportunity for improved zoning

and planning that will benefit the community. So I

think that is really what you need to think about, you

know, if the positive criteria and negative criteria pros

and cons outweigh each other and it benefits the

community versus it doesn't benefit the community.

A Board member then confirmed the Board's counsel "has made that clear that

we have to not consider any other issues." After plaintiff Peter Franco testified,

counsel again advised the Board, "if it's going to be denied, do not deny it on

the issue of public access."

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After the presentation on the application was completed, Board members

made various comments agreeing with the Board's planner that the "flag lot is

just out of character" and "there is no positive impact of this subdivis ion."

However, one Board member explicitly stated, "[m]y concern is the building

access." The Board's counsel responded, "[b]ut that is something we will not be

getting into."

We stress that board members do not act individually. See Scully-Bozarth

Post # 1817 of Veterans of Foreign Wars of U.S., 362 N.J. Super. at 312.

Instead, "[t]he board acts as a body. The resolution provides the body's findings

and conclusions, expressed by those who vote to adopt the resolution." Ibid.

Furthermore, "[w]hether the final version of the resolution, as adopted, differs

from any comments publicly made by one or more members voting on it, or

whether one or more members did not publicly comment at all, does not detract

from the resolution's status as the official statement of the board's findings and

conclusions." Id. at 312-13.

"It is the resolution, and not board members' deliberations, that provides

the statutorily required findings of fact and conclusions." See N.Y. SMSA, L.P.

v. Bd. of Adjustment of Twp. of Weehawken, 370 N.J. Super. 319, 333-34 (App.

Div. 2004) ("[R]emarks [made by an individual board member] at best reflect

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the beliefs of the speaker and cannot be assumed to represent the findings of an

entire Board."). Such individual comments do "not detract from the resolution's

status as the official statement of the board's findings and conclusions." Scully-

Bozarth Post # 1817 of Veterans of Foreign Wars of U.S., 362 N.J. Super. at

312-13.

Here, the Board's resolution explicitly states:

The Board Attorney noted that a decision on the

application would not be based on whether or not there

was public access since the applicant had no discretion

and needed to follow the requirements for a [Coastal

Area Facility Review Act] permit, and since the

Planning Board is not an enforcement agency it could

not rest its decision based upon pas[t] use and activities

on the subject property.

As previously noted, the resolution concludes by stating, "the Board determines

that the applicant failed to demonstrate positive criteria that would justify the

subdivision a[t] that location with a substantial reduction in street frontage and

creating a flag lot."

We therefore conclude the Board's decision was not based on "improper

considerations" as plaintiffs contend, but rather was based on sufficient credible

evidence.

Affirmed.

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