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Brenner v. The Planning Board of Little Silver

MON-L-5083-97 (N.J. Super. Law Div. 2000) (Unpublished)

ZONING; SUBDIVISION—A subdivision applicant has the obligation to furnish information requested, in good faith, by a zoning board even if the applicant believes that the board’s vote will be unchanged by the responsive material.

A property owner’s land measured 96,183 square feet. It contained a single family home, a pool and a dock. The owner intended to subdivide the property into one lot measuring approximately 56,000 square feet and another of about 40,000 square feet. Most of the property was located in an R-1 zone which required a minimum of 60,000 square feet per lot. Many of the adjacent properties were smaller than that and, in addition, a portion of the property was located in an R-2 zone which required a minimum lot area of only 25,000 square feet. The applicant claimed that the subdivision application would help address a flooding problem by including a drainage easement and an additional storm water line under the western portion of its property. The applicant’s expert testified that while the proposed solution would not cure all flooding in the area, it certainly would have had a “positive impact on the current” situation. Further, a planner testified that the proposed subdivision “was not only in keeping with the character of the neighborhood but more in keeping with the character of the neighborhood than its current condition… .” The board denied the application holding that “the applicant failed to meet its obligations to establish positive criteria as it did not establish that the benefit derived from installing the drainage pipe would reduce the flooding, nor did it submit a specifications [sic] for a valve that would work under all conditions so as to prevent back flow.” Consequently, the board believed that the amount of water which might have been reduced by the applicant’s proposal did not outweigh the substantial reduction in lot size requested by the applicant. On appeal to the Law Division, the applicant alleged that the board did not consider the testimony of its engineer or even give the applicant an opportunity to provide evidence of the extent to which flooding would be reduced. Accordingly, it alleged that the board had been arbitrary, unreasonable, and capricious in reaching its decision. The applicant also argued that the board made an erroneous conclusion of law when it determined that keeping the applicant’s lot at more than one and one-half times the minimum lot size best achieved the purposes of the zone plan, zoning ordinance, and master plan. In opposition, the board argued that the applicant had the burden of producing sufficient evidence such that the board could render a decision. Further, it alleged that the applicant refused to supply the board with a study that would determine the time it would take for flooding to subside under various conditions. In response, the applicant’s attorney expressed the opinion that his client was being asked to spend money in the face of what appeared to be a negative vote. The board countered that whether the applicant interpreted the mood of the board as being adverse to its application was immaterial to the documentation of what evidence the applicant must place in the record. After reviewing these arguments, the Court held that “[w]hen a request for additional information is made in good faith, that request should not be questioned by a reviewing court.” For that reason, and because a reviewing court must accord boards wide latitude in their exercise of their delegated, discretion in light of their peculiar knowledge of local conditions, the Court upheld the board’s determination that the proposal was not a benefit. As a result, because the only evidence of a proposed benefit shown by properly presented evidence was found that to be significant, the board’s decision was not arbitrary and capricious and was upheld.


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