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Monteforte v. Planning Board of the Borough of Oceanport

A-5623-07T1 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; WETLANDS — A land use board may not deny subdivision approval solely because a property is subject to wetlands regulation, but may deny an application because of legitimate flooding concerns in the area of the property.

A property owner who owned three contiguous lots filed an application for a minor subdivision and for bulk variances. The owner desired to create two lots, one of which was vacant land. The vacant lot would have contained less than the minimum lot area required in the residential zone. The board denied the application because: (a) it did not advance sound planning; as the new lot would become an irregular lot and to build a home on it would require variances; (b) the proposed action would be taking a conforming lot to create a non-conforming lot that did not meet neighborhood standards; (c) a substantial portion of the property was in an environmentally sensitive area and the application would not make existing flooding problems any less severe and could impact other properties; (d) the relief could not be granted without substantial detriment to the zoning ordinances and the applicant has not demonstrated a hardship for the granting of the variance relief since the applicant currently already had a single-family home on the lot; and (e) the applicant did not exhaust his available means of mitigating his request for variances since the neighboring property owner testified that the applicant never offered to purchase any part of his property to enlarge the undersized lot. The applicant sued the board, challenging its ruling.

The Law Division dismissed the complaint, holding that the applicant had failed to prove the statutory negative criteria for the grant of a variance under the Municipal Land Use Law. It rejected the applicant’s argument that the applicant’s request was trivial since the application required numerous deviations from the zoning ordinance. Moreover, it ruled that the board acted reasonably in believing that the drainage issues related to the area, which the board was familiar with, could be adversely impacted by the proposed subdivision. Further, it ruled that it would defer to the board’s discretion and held that the applicant failed to satisfy the requirements for bulk variance relief. It also ruled that all the lots merged. The property owner appealed.

The Appellate Division affirmed for substantially the same reasons expressed by the lower court. It added, however, that the property owner was correct that a local board may not deny subdivision approval solely because a property is subject to wetland regulations. It observed, however, that the lower court did not deny the application solely for that reason, but rather because of flooding concerns in the area of the property. In addition, it held that the applicant had not presented sufficient proofs to satisfy the negative criteria for the grant of the dimensional variances. Even after enlarging one of the existing lots, the new proposed lots would still be 24% smaller than required by the municipality’s zoning ordinance. The size of the proposed structure to be built on the undersized lot might also require a variance from the maximum lot coverage requirement. The Court further noted that there would be no zoning benefit to the community, just one in favor of the applicant. After reviewing the factors that the board considered, the Court was satisfied that the board took into account the appropriate factors and determined that the factors weighed against the grant of the variance. Thus, the denial was deemed not to be arbitrary or capricious.

Finally, the Court agreed with the property owner that the lower court should not have decided the issue of lot merger because the property owner never raised this issue in the lower court, it was not necessary to the decision, and no legal briefs on the issue were presented during the lower court proceedings.

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