Opinion
DOCKET NO. A-0070-12T2
01-16-2015
RECTOR, WARDENS & VESTRYMEN OF ST. BERNARD'S PROTESTANT EPISCOPAL CHURCH, Plaintiff-Respondent/Cross-Appellant, v. BERNARDS TOWNSHIP PLANNING BOARD, Defendant-Appellant/Cross-Respondent, and BERNARDS TOWNSHIP, JOHN LAFAKIS, JULIE LAFAKIS, ABHAY MAHAGAOKAR, and NANDITA SOOD, Defendants-Respondents. JOHN LAFAKIS, JULIE LAFAKIS, ABHAY MAHAGAOKAR, and NANDITA SOOD, Third-Party Plaintiffs, v. BELLE GROVE, LLC and FIRST AMERICAN TITLE INSURANCE COMPANY, Third-Party Defendants.
Jonathan E. Drill argued the cause for appellant/cross-respondent Bernards Township Planning Board (Stickel, Koenig, Sullivan & Drill and Gebhardt & Kiefer, attorneys; Mr. Drill, on the brief. Daniel E. Somers argued the cause for respondent/cross-appellant St. Bernard's Church (Somers & Malay, attorneys; Mr. Somers, on the brief). John P. Belardo argued the cause for respondent Bernards Township (McElroy, Deutsch, Mulvaney & Carpenter, LLP; Mr. Belardo, of counsel; Daniel Font, on the brief). Frederick B. Zelley argued the cause for respondents John Lafakis, Julie Lafakis, Abhay Mahagaokar and Nandita Sood (Bisogno, Loeffler & Zelley, LLC, attorneys; Mr. Zelley, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall, Waugh and Nugent. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-2184-09. Jonathan E. Drill argued the cause for appellant/cross-respondent Bernards Township Planning Board (Stickel, Koenig, Sullivan & Drill and Gebhardt & Kiefer, attorneys; Mr. Drill, on the brief. Daniel E. Somers argued the cause for respondent/cross-appellant St. Bernard's Church (Somers & Malay, attorneys; Mr. Somers, on the brief). John P. Belardo argued the cause for respondent Bernards Township (McElroy, Deutsch, Mulvaney & Carpenter, LLP; Mr. Belardo, of counsel; Daniel Font, on the brief). Frederick B. Zelley argued the cause for respondents John Lafakis, Julie Lafakis, Abhay Mahagaokar and Nandita Sood (Bisogno, Loeffler & Zelley, LLC, attorneys; Mr. Zelley, of counsel and on the brief). PER CURIAM
This appeal and cross-appeal are from orders entered in a civil action concerning an application filed pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -136. The Rector, Wardens and Vestrymen of St. Bernard's Protestant Episcopal Church (the Church) filed an application for preliminary approval of a major subdivision and associated variances and exceptions from the Bernards Township's zoning ordinance and the Residential Site Improvement Standards (RSIS), N.J.A.C. 5:21-1.1 to -8.1. The Bernards Township Planning Board (the Board) denied the application on the ground that the Church failed to establish its entitlement to the necessary variances and exceptions.
Planning Boards may approve a c(2) variance where approval of a subdivision is required. N.J.S.A. 40:55D-60; N.J.S.A. 40:55D-70.
Following the Board's denial of its application, the Church filed a civil action in which it sought: reversal of the Board's denials; a judgment defining rights and obligation under an access easement the Church granted in connection with a prior subdivision to the owners of residential lots in Belle Grove Estates - defendants John and Julie Lafakis and by Abhay Mahagaokar and Nandita Sood (the easement holders); and damages from the Board and Bernards Township (the Township) for an alleged inverse condemnation, alleged discrimination constituting violations of its rights to substantive due process and equal protection, 42 U.S.C.S. § 1983, and an alleged violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.S. §§ 2000cc to 2000cc-5.
In 1998, the Board approved the Church's application for a major subdivision that yielded a twelve-lot development for single family homes known as Belle Grove Estates. The Church sold that subdivision to its developer Belle Grove, L.L.C.
Belle Grove, L.L.C. is a thirdparty defendant on a thirdparty complaint seeking contribution filed by the defendant easement holders. The easement holders also filed a thirdparty complaint for contribution from their title insurer, First American Title Insurance Company. Neither the developer nor the title insurer has participated in this appeal.
The defendants also sought affirmative relief. The easement holders filed a counterclaim for declaratory judgment and related relief; the Board filed a counterclaim to recover a $4892.75 deficit in the Church's escrow account; and the Township sought monetary sanctions pursuant to Rule 1:4-8.
The trial court reversed the Board's denial of the Church's application and approved the subdivision requested with a modified plan for a roadway leading to the residential lots not presented to the Board at the hearing. Although the court's modification of the proposed roadway implicated rights and obligations under the easement, the court required the Church to pay for any relocation or reconstruction of the easement holders' driveways necessitated by the modified roadway plan.
The trial court denied or dismissed all of the Church's claims for damages against the Board and the Township, in orders entered on the motion. The trial court also resolved the Board's and the Township's affirmative claims. It ordered the Church to pay the escrow deficit, $4892.75, and required the Church to pay sanctions for frivolous litigation in the amount of $7913.57, which was less than the Township requested.
The Board appeals and challenges specific provisions of the partial judgment dated June 22, 2012. That partial judgment addresses the Church's application for the subdivision approval and the related variances and exceptions. The Church cross-appeals and challenges different provisions of the same partial judgment. In addition, the Church challenges a provision of the "final judgment" entered on July 23, 2012 that requires it to pay the Board's escrow charge.
The Church appeals the following orders dismissing, denying leave to file or denying claims for damages: April 21, 2010, dismissing a first-amended complaint as to the Township; May 17, 2010, dismissing a second-amended complaint against the Township; November 12, 2010, dismissing "cross claims" the Church filed against the Township; and March 4, 2011, denying leave to file a third-party complaint seeking damages and contribution from the Township.
Finally, the Church appeals from orders related to sanctions for frivolous litigations. Those orders are dated January 21 and March 1, 2011, and June 21, 2012.
I
Before turning to the facts pertinent to this application, it is important to indicate that we are exercising our discretion to grant leave to appeal and cross-appeal as if within time. R. 2:4-4(b). It is apparent that the Church's and the easement holders' competing claims for declaratory relief pertinent to the easement, as well as their related claims for contribution from Belle Grove, L.L.C. and the easement holders' title insurer, have not been resolved. Because the trial court dismissed those claims without prejudice, the parties may pursue them. Accordingly, a grant of leave to appeal is required.
For reasons discussed in Part III of this opinion, we affirm the Board's decision to deny the steep slope variance for Lot 27 pursuant to N.J.S.A. 40:55D-70(c)(2) and, on that basis we affirm the denial of the preliminary major subdivision approval. Our affirmance of the Board's determination on those points makes it unnecessary to discuss the parties' respective objections to the provisions of the court's order approving exceptions to the Township's ordinance and RSIS standards that are based on the subdivision plan the Church submitted to the Board for approval. Any objections are moot as the Church may not resubmit a similar or substantially similar plan and a different plan would require consideration anew. Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 38-40 (2013).
Because the Board has not appealed the court's reversal and grant of a c(1) hardship variance for the proposed roadway in the subdivision, that issue is not before us. The Board has abandoned any objection to that aspect of the judgment. Muto v. Kemper Reinsurance Co., 189 N.J. Super. 417, 420-21 (App. Div. 1983).
The Church seeks reversal of several orders that we do not address because we summarily affirm them here. The arguments the Church offers to establish error warranting reversal of the orders identified here have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Those orders are: the orders disposing of its claims for damages from the Township and the Board; the orders requiring the Church to pay the escrow charge; and the orders involving the imposition of sanctions for frivolous litigation. In each instance, the trial court has provided findings of fact and legal conclusions for its determinations, and we affirm substantially for the reasons stated by the court.
The foregoing matters having been addressed, we turn to discuss the facts pertaining to the dispositive issues.
II
The Church submitted an application to the Board for preliminary major subdivision approval to develop 8.75 acres of its property located at Lot 1, Block 1204 (formerly known as Block 32, Lot 22) in the Township's R-7 zone. In its application the Church proposed subdividing the property into seven lots all of which are larger than 0.5 acres — six to be sold to a developer as lots for single family homes, a permitted use in the zone, and one remainder lot abutting the Church's cemetery in Bernardsville to be retained by the Church for cemetery use. The lot size for each lot meets the 0.5-acre maximum density requirement for the zone. The remainder lot is east of those proposed for development and not adjacent to a twelve-home residential development known as Belle Grove Estates.
Development of six residential lots where proposed is complicated because the land is steeply sloped, lacks street access to the subdivision, and the fact that the Church previously subdivided property on the western side and down slope of the site. That subdivision, approved by the Board in 1998, yielded the lots in Belle Grove Estates, and the Church proposed access to the six residential lots that it would gain with this subdivision by way of an extension of a street in Belle Grove Estates.
The homes in Belle Grove Estates lie on either side of Belle Grove Court, a road with a cul-de-sac at each end. That road is intersected by Schindler Drive, which is the only road that connects Belle Grove Court with a road outside the development, Washington Avenue. As noted, the property at issue here has no access to that road.
When the Church conveyed the lots in Belle Grove Estates to a developer, Belle Grove, L.L.C., the Church retained a fifty-foot wide strip of land extending eastward into the back of that subdivision from Schindler Drive's intersection with Belle Grove Court. The Church intended to use the unimproved fifty-foot wide strip for access from Washington Avenue by way of Schindler Drive and the unimproved extension that, if improved, would link Schindler Drive with Lot 1, Block 1204. And that is the course of the access roadway the Church proposed in the application for the subdivision at issue here.
Despite the Church's plan at the time of the Belle Grove Estates subdivision, by deed of January 28, 1999, conveying the property to Belle Grove, L.L.C., the Church granted the two Belle Grove lots that lie on either side of the fifty-foot wide strip it retained "for use as a driveway to provide ingress and egress to" those lots. Those lots, owned by the easement holders, are Block 32, Lot 6 and Lot 7. The deed provides:
Block 32, Lot 6 and Lot 7 on the subdivision plat were formerly designated as Block 32, Lot 16 and Lot 17. Both designations appear in the record. We refer to the properties as Lot 6 and Lot 7.
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Such easement is and will remain subject and subordinate to the right of Grantor
[plaintiff] and its successors and assigns of ingress and egress to Grantor's [plaintiff's] property and any right-of-way, whether express or implied, granted, dedicated or conveyed for public or private use now or at any time in the future.
As originally planned, the houses on those lots with the easement were to face each other across the fifty-foot strip with driveways extending from garages underneath the house facing Belle Grove Court. But that is not how they were built. According to one of the easement holders, who was on the Board when the Belle Grove Estates subdivision was approved, the builder told them the Church did not intend to develop Lot 1, Block 1204, and the easement holders decided to face their homes to Belle Grove Court with driveway accessed from the easement, which they covered with gravel connecting them to Belle Grove Court.
The Church's application for this subdivision proposed access to the subdivision by way of an extension of Schindler Drive by improving the fifty-foot strip it retained between Lots 6 and 7. Because the land slopes steeply uphill east of the intersection, compliance with RSIS standards required a change in the grade of the unimproved strip and that requires erection of a retaining wall on both sides of the strip. In its final iteration, the Church's plan called for retaining walls that block the driveways of Lot 6 and Lot 7. For that reason, the easement holders objected.
The easement holders retained an engineering expert. In his opinion, maintaining access to the easement would require excavation, re-grading with retaining walls on the lots, relocation of utilities and new landscaping. He thought the work would cost between fifty and one hundred thousand dollars per lot. The Church took the position that it was not obligated to fund the work, although the record indicates there was some willingness to contribute to the cost.
The Church argued that if the easement holders had their homes and driveways built as planned, the problem with the roadway would not be as severe. There is no dispute that the 1998 plat shows the easement holders' driveways positioned at spots along the easement that have a higher elevation than the location of driveways as built by the developer. But the Church's engineer and attorney acknowledged that even if the driveways had been positioned where shown on the 1998 plat, the driveways would have required alterations, albeit less significant alterations, to meet the grade of the proposed extension of Schindler Drive.
The Board suggested the Church consider other options for a roadway, including a course that would pass through the cemetery. The Church opposed that plan and presented a witness whose testimony pointed to negative ramifications such as additional disturbance of steep slopes, disturbance of some graves and proximity to others, impact on traffic and the potential for making conforming lots in Belle Grove Estates non-conforming.
The Board considered five iterations of the Church's application, and the Board held eight hearings to do that. In its final iteration the application sought the following variances and exceptions:
a) two variances from the limits on steep slope disturbance imposed by Bernards Twp. Code § 21-14.2, one for the roadway (100% where 40% is permitted) based on hardship, N.J.S.A. 40:55D-70(c)(1), and one for a proposed residential lot (79.5% where 40% is permitted) based on the balance of public benefits and detriments, N.J.S.A. 40:55D-70(c)(2);
b) a credit not authorized by any ordinance amounting to a relaxation of the design standards governing tree replacement set forth in sections 21-45.3 and 21-45.4 of the Township's ordinance;
c) an exception from a RSIS standard for cart way width (24 feet where 28 feet is required), N.J.A.C. 5:21-4.2(c);
d) two exceptions from RSIS standards for cubic feet per second runoff (cfs) rate for water at the peak of a two-year storm, N.J.A.C. 5:21-7, Appendix B (.86 cfs where .80 cfs is the limit and .89 cfs where .45 cfs is the limit);
e) an exception from a RSIS standard requiring sidewalks on both sides of a street, N.J.A.C. 5:21-4.5(b); and
f) an exception for the vertical curve of the proposed roadway, N.J.A.C. 5:21-4.20(a).
We turn to focus on the evidence presented to the Board pertaining to the steep slopes variance for Lot 27. The purpose of the Township's ordinance is "to regulate the intensity of use in areas of steeply sloping terrain in order to limit soil loss and erosion and the degradation of surface water." Bernards Twp. Code § 21-14.2(a).
The Church's engineering expert explained that the area of Lot 27 is 46,464 square feet, 7248 square feet of which has slopes of 15% to 19.9% slopes. The house and driveway for that lot would encroach on 5761 square feet, or 79.5% of those slopes. Under the ordinance, no more than 40% of slopes within that range on a lot may be disturbed. Thus, for this lot, the maximum is 2899 square feet.
The engineer testified that he "did not believe" the disturbance proposed on Lot 27 would "cause erosion or cause degradation to the surface water runoff." The only explanation he gave for that conclusion was that it was based, in part, on the soil and ground water studies conducted by the Church's geotechnical engineer.
The geotechnical engineer prepared reports and testified about the Church's proposed drywell system that is a part of the stormwater management system the Church proposed to limit runoff from the proposed subdivision. He did not discuss or even refer to the impact of steep slope disturbance on that system or on the soil, and he did not test the soil or comment on Lot 27 at all.
The Church had its professional engineer prepare a "conceptual plan" demonstrating that elimination of one of the six residential lots would eliminate the need for a steep slope variance for the lots. The engineer and attorney made it clear that the Church was not proposing that five-residential lot development. All five of the lots shown in the "conceptual plan" are appreciably larger than the "minimum" permissible lot area in the R-7 zone — 21,780 square feet. Specifically, the areas of the five lots are 86,000, 30,000, 39,000, 58,000 and 37,000 square feet. As previously noted, the six residential lots the Church proposed are also larger than the minimum permitted.
In the opinion of the Church's planning expert, the Church's proposed six-lot development is "a better planning alternative" than a plan that has a lot that is "eighty some-odd thousand square foot" and "really is not in character of the surrounding area." The planner did not describe the "character of the surrounding area" in his testimony or report. In his opinion, the benefit of oversizing Lot 27 and burdening it with a conservation easement barring further subdivision would protect the remaining steeply sloped areas on that lot. In response to questions about the "positive aspects" he had identified, the planner explained that the Church could have gotten more lots if they had made them irregular. On further questioning, however, he admitted the ordinance would preclude such lots.
The planner did not offer an opinion on any negative impact a grant of the steep sole variance for Lot 27 would have on erosion or degradation of soil. He simply testified to his understanding of what the engineers had said.
The penultimate paragraph of the Board's resolution denying approval of a preliminary major subdivision explains that the denial is based on the Church's failure to present the proofs required for the Board to grant the requisite variances and exceptions. In the preceding paragraphs, the Board recites and applies the criteria governing its authority to grant steep slope variances pursuant to N.J.S.A. 40:55D-70(c)(1)-(2), exceptions to the design standards of a local ordinance's requirements for subdivision approval pursuant to N.J.S.A. 40:55D-51(a), and exceptions to RSIS standards that are de minimis as authorized by N.J.A.C. 5:21-3.1. And, in the remaining paragraphs the Board explains each denial.
The court's determinations on the Board's denials are memorialized in a partial judgment entered on June 22, 2012. The Board and the Church both challenge different provisions of that judgment on appeal. The Board appeals from ¶ 8, which reverses the Board's denial of and grants a steep slope variance for one proposed lot; ¶ 3 a and b, which reverse the Board's denial and grant exceptions to the RSIS standard for runoff rates applicable to two-year storms; ¶ 6 a, b and c, which approve and establish a roadway plan not presented to the Board during the hearings on the application; and ¶ 12, which grants preliminary approval of the major subdivision as modified by the court. The Church cross-appeals from different provisions of the judgment: ¶ 5, which affirms the denial of the Church's roadway plan; and ¶ 6 e, which requires the Church to pay the cost of reconstructing the easement holders' driveways. Neither party appeals from ¶ 4, which grants a hardship variance from the steep slope ordinance required because of the proposed road.
III
Courts reviewing a municipal board's action on planning matters are limited to determining whether the board's decision was arbitrary, unreasonable or capricious. Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965); Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd., 343 N.J. Super. 177, 198 (App. Div. 2001); Terner v. Spyco, Inc., 226 N.J. Super. 532, 547 (App. Div. 1988). As explained in Kramer:
Courts cannot substitute an independent judgment for that of the boards in areas of factual disputes; neither will they exercise anew the original jurisdiction of such boards or trespass on their administrative work. So long as the power exists to do the act complained of and there is substantial evidence to support it, the judicial branch of the government cannot interfere. . . . Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.Appellate courts apply the same standard of review as the trial court. Charlie Brown of Chatham v. Bd. of Adjustment of Chatham, 202 N.J. Super. 312, 321 (App. Div. 1985).
[45 N.J. at 296-97.]
The wide latitude afforded to municipal boards in the exercise of their delegated discretion is due to their peculiar knowledge of local conditions. Jock v. Wall Twp. Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005); Pierce Estates Corp. v. Bridgewater Twp. Zoning Bd. of Adjustment, 303 N.J. Super. 507, 514 (App. Div. 1997). Moreover, in interpreting N.J.S.A. 40:55D-70(c)(2), the Supreme Court has concluded "that the negative criteria of the c(2) variance require 'statutory focus . . . on the surrounding properties' . . . ." Kaufmann v. Planning Bd. for Warren Tp. 110 N.J. 551, 565 (1988) (quoting Medici v. BPR Co., 107 N.J. 1, 22 n.12 (1987) and concluding the analysis of the sort the Court required for the "d variance's negative criteria . . . as well as any possible detriment to the zoning plan, the second prong"). Moreover, the Court concluded that "the Legislature undoubtedly intended through the c(2) variance to vest a larger measure of discretion in local boards in a limited area of cases." Ibid.
The Board argues that the court erred when it reversed the Board's denial of and granted the variance for steep slope disturbance on Lot 27, which the Church sought pursuant to N.J.S.A. 40:55D-70(c)(2). We agree.
"The applicant bears the burden of proving both the positive and negative criteria" for a c(2) variance. Ten Stary Dom, supra, 216 N.J. at 30. And, to obtain the variance the Church sought for Lot 27, it had to introduce evidence adequate to establish the following: that the purposes of the MLUL "would be advanced by a deviation from the zoning ordinance requirements"; that "the benefits of the deviation would substantially outweigh any detriment"; and that the "variance . . . 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(c)(2).
The Court has interpreted the positive criteria as follows:
[N]o c(2) variance should be granted when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property. The focus of a c(2) case, then, will be not on the characteristics of the land that, in light of current zoning requirements, create a "hardship" on the owner warranting a relaxation of standards, but on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community.
[Kaufmann, supra, 110 N.J. at 563.]
In addition, the Court has cautioned boards and reviewing courts to consider only those general principles of zoning that are implicated by the relief sought. Ten Stary Dom, supra, 216 N.J. at 32-33.
In denying plaintiff's request for a c(2) variance from the Township's steep slope ordinance, the Board found and reasoned:
[T]here was no presentation of any public benefit to be gained by allowing such a variance. Moreover, the applicant introduced an exhibit [five-lot "conceptual plan"] which showed that development could occur with one less lot and allegedly conform to the steep slope disturbance on all of such lots. As a result, the applicant's own professional planner was forced to acknowledge, on cross-examination, that a five lot subdivision would be better than a six lot subdivision, because it could be made to conform to ordinance. The applicant simply failed to meet the proofs required for such a variance, and the Board
determined the requested variance should be denied.We could not agree more.
The planner posited that because Lot 27 was larger than required by zoning ordinance and would be encumbered by a conservation easement that barred subdivision, it would protect more steep slopes. In questioning the planner, a member of the Board expressed his inability to see how the conservation easement protecting steep slopes could be considered a public benefit justifying a variance from an ordinance protecting steep slopes. He was obviously correct in taking that view. Under the ordinance, the steeply sloped area on Lot 27 was taken into account in calculating the permissible area of disturbance that the Church sought to exceed.
The second benefit the planner argued was based on a general zoning principle favoring uniformity of lot size in the zone. Relying on the Church's conceptual plan indicating how big the lots in this subdivision would have to be to comply with the ordinance's steep slope limitations, he argued that a variance for Lot 27 would have the benefit of keeping the lot at a size more consistent with the character of the surrounding area. He presented no evidence establishing the characteristics to which he referred. And, in any event, harmonious lot size had no relevance to the purposes of zoning implicated by a variance from an ordinance intended to protect erosion and degradation of water.
Finally, as our prior discussion of the information presented to the Board indicates, the Church presented no competent evidence on the negative criteria.
For the reasons stated above, the Board's determination that the Church simply failed to meet the proofs required for a c(2) variance is adequately supported by the record and wholly consistent with the controlling legal principles. Accordingly, the trial court's decision reversing the denial and granting the variance must be reversed.
The denial of the c(2) variance for Lot 27 provided an adequate basis for the Board to deny preliminary approval of the major subdivision. Where "a proposed subdivision or site plan fails to conform with any provision of the zoning ordinance, the applicant must secure a variance allowing that nonconformity." Cortesini v. Hamilton Twp. Planning Bd., 417 N.J. Super. 210, 215 (App. Div. 2010), certif. denied, 207 N.J. 35 (2011); see also Northgate Condominium Ass'n, Inc. v. Borough of Hillsdale Planning Bd., 214 N.J. 120, 144 (2013) (discussing planning board's obligation to evaluate applications for subdivision approval for compliance with RSIS). A grant of subdivision approval that involves a variance that has been denied would be inconsistent with N.J.S.A. 40:55D-60, which precludes a planning board reviewing an application for subdivision approval involving a variance that has been granted by a board of adjustment from granting approval "unless the approval can be granted . . . without substantial impairment of the intent and purpose of the zone plan and zoning ordinance."
For all of the foregoing reasons, we reverse the trial court's grants of a c(2) variance for Lot 27 and subdivision approval and affirm the Board's denial of that relief.
Affirmed in part and reversed in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION