ALAN VINEGRAD VS. DOUGLAS MILLER (L-5569-14 AND L-7701-16, ESSEX COUNTY AND STATEWIDE) (CONSOLIDATED)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 12, 2019
• Docket: A-0896-15T2/A-1844-17T2
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 NOS. A-0896-15T2 A-1844-17T2

ALAN VINEGRAD,

Plaintiff-Appellant,

v.

DOUGLAS MILLER, BETH MILLER, and THE TOWNSHIP OF MILLBURN ZONING BOARD OF ADJUSTMENT,

Defendants-Respondents,

and

FLAMINGO BUILDERS, LLC,

Defendant. _____________________________

Argued January 15, 2019 – Decided March 12, 2019

Before Judges Rothstadt, Gilson, and Natali.

On appeal from Superior Court of New Jersey, Law Division, Essex County Docket Nos. L-5569-14 and L- 7701-16. Patrick J. Dwyer argued the cause for appellant (Nusbaum, Stein, Goldstein, Bronstein & Kron, attorneys; Patrick J. Dwyer, on the briefs).

Robert F. Simon argued the cause for respondents Douglas Miller and Beth Miller (Herold Law, PA, attorneys; Robert F. Simon and Arjun D. Shah, on the brief).

Gail H. Fraser argued the cause for respondent Township of Millburn Zoning Board of Adjustment (Gail H. Fraser, attorney, join in the brief of respondents Douglas Miller and Beth Miller).

PER CURIAM

These two appeals arise out of challenges to zoning variances granted to

defendants by the Township of Millburn Zoning Board of Adjustment (Board)

to allow defendants to build a residential home on an undersized, vacant piece

of property. Plaintiff Alan Vinegrad, a neighbor, appeals from the Law

Division's two final orders and judgments rejecting his challenges to the Board's

approvals issued in resolutions dated July 7, 2014, and October 24, 2016. We

affirm. The Board acted within its authority, there was substantial evidence in

the record supporting its discretionary decisions, and we find no errors in the

application of the relevant principles of land use law.

A-0896-15T2 2 I.

In September 2013, defendants Douglas and Beth Miller (the Millers) filed

an application with the Board seeking zoning variances to allow them to build a

single-family home in Millburn. The property fronts on Brookside Drive and is

located in an area zoned for single-family residences (the Property). At the time

that the Millers made their application in 2013, the Property was vacant, was

owned by defendant Flamingo Builders, LLC, and the Millers had a contract to

purchase the Property.

The Property is located in a zoning district that required a minimum lot

area of 14,500 square feet, a minimum lot width of 75 feet, and a minimum lot

depth of 125 feet. The Property is undersized; its area is under 7000 square feet,

with approximately 60 feet of width and 110 feet of depth. The Property is also

steeply sloped, with an approximately 40-foot elevation change from the front

to the rear of the property. Accordingly, the Millers sought a number of

variances, including variances from the lot size, setback and coverage, slope

disturbance, and maximum height elevation requirements.

Between December 2013 and May 2014, the Board conducted four

hearings on the Millers' 2013 application. During those hearings, the Board

heard testimony from Douglas Miller, who is a licensed architect, and a number

A-0896-15T2 3 of experts. The Board also reviewed various site and architectural plans,

including the architectural drawings of the Millers' proposed home.

Plaintiff, who owns the lot behind the Property, participated in those

hearings and objected to the Millers' application. As part of his objections,

plaintiff called various experts and submitted alternative plans that would have

allowed for construction of a home, but with fewer variances.

In March 2014, while their 2013 application was pending before the

Board, the Millers sent offers to all abutting property owners, including plaintiff.

The offers proposed either to purchase a portion of the abutting properties or to

sell the Property at fair market value. No abutting property owner accepted

either offer.

On July 7, 2014, the Board adopted a resolution granting the variances

requested in the Millers' application. The Board's eighteen-page resolution

identified the materials and documents it considered, discussed the witnesses

who had presented testimony, and summarized the reasons for the approval. The

Board then granted a number of zoning variances to allow the Millers to build a

home. The variances were conditioned on the Millers adhering to the

architectural plans they had submitted to the Board.

A-0896-15T2 4 In August 2014, plaintiff filed a complaint in lieu of prerogative writs

challenging the Board's 2014 resolution. Plaintiff contended that the Millers

had failed to satisfy the requirements of the Municipal Land Use Law (MLUL),

N.J.S.A. 40:55D-1 to -163. Specifically, plaintiff argued that his alternate

proposals showed that the Millers' application failed to satisfy N.J.S.A. 40:55D-

70, and the Board's decision was unreasonable, arbitrary, and capricious.

The Millers and the Board filed answers. Thereafter, the trial court

considered the arguments presented, and on September 15, 2015, the court

issued a final order and judgment finding that the Board's 2014 resolution was

supported by substantial evidence in the record and was not arbitrary, capricious,

or unreasonable. The court also issued a written opinion on August 12, 2015,

explaining the reasons for its rulings.

The court found that the Board had carefully considered the requirements

of the MLUL and, in particular, N.J.S.A. 40:55D-70. Thus, the court found that

the Board's conclusion that the Millers satisfied the positive and negative criteria

warranting relief under N.J.S.A. 40:55D-70(c) and (d) was supported by

substantial, credible evidence. In that regard, the court noted that the Board had

determined that the Millers proved undue hardship concerning the undersized

lot area. The court also pointed out that the Board's finding of exceptional

A-0896-15T2 5 circumstances warranting variance relief was supported by the record. Turning

to the issue of the Millers' proposed elevation for their home, the court found

that the Board had acted within its discretion and its decision was supported by

substantial, credible evidence in the record.

In October 2015, plaintiff appealed from the September 15, 2015 final

order and judgment. That appeal was assigned Docket No. A-0896-15. While

that appeal was pending, defendants learned of a mistake in their original

application.

In their application in 2013, the Millers identified the Property as

consisting of 6641 square feet. A subsequent title search, however, revealed

that approximately 313 square feet had been conveyed to the Township as part

of a right-of-way along Brookside Avenue. Accordingly, the Millers revised

their architectural plans to preserve the percentage of variance relief granted to

them, and in 2016, they filed an amended application with the Board.

The Board held a hearing on August 15, 2016. Plaintiff appeared through

counsel and argued that the 2016 application was an application for new

variances, the Board should reconsider all the issues, and the Millers were

obligated to again offer to sell the Property to plaintiff. The Board disagreed

and, on October 24, 2016, it issued a resolution ratifying and incorporating the

A-0896-15T2 6 2014 resolution and amending the conditions to reflect the Millers' new home

design.

Thereafter, plaintiff filed a second complaint in lieu of prerogative writs

challenging the 2016 resolution. The same trial judge considered the second

prerogative writs action. Plaintiff argued that the 2016 application and the 2013

application concerned different properties and, therefore, the variances granted

in the 2014 resolution could not apply to the Property. Plaintiff also argued that

the Board did not have the power to "ratify" its previously-granted variances.

Finally, plaintiff argued that the Millers lacked standing in the 2013 application,

and the Board, therefore, lacked jurisdiction to issue the 2014 resolution because

the Millers did not own the entire Property.

In a final order and judgment, filed on November 29, 2017, the trial court

rejected those arguments and found that the Board's 2016 resolution was

supported by substantial, credible evidence in the record and its determinations

were not arbitrary, capricious, unreasonable, or contrary to the law. The court

explained the reasons for its rulings on the record on November 14, 2017. In

essence, the court found that the 2016 application was a request for a

modification of the condition concerning the architectural drawings. The court

A-0896-15T2 7 found that both the 2013 and 2016 applications involved the same Property and,

accordingly, the Board had acted appropriately in issuing the 2016 resolution.

Plaintiff also appealed from the November 29, 2017 order and judgment.

That appeal was docketed under No. A-1844-17. We had stayed the first appeal

pending resolution of the second action in lieu of prerogative writs. Thereafter,

we ordered that both appeals be calendared back-to-back before the same panel

of judges. We now issue this consolidated opinion addressing both appeals.

II.

The two appeals brought by plaintiff seek to challenge local land use

zoning variances granted by the Board. Accordingly, we initially identify our

limited scope of review. Zoning board decisions "enjoy a presumption of

validity, and a court may not substitute its judgment for that of the board unless

there has been a clear abuse of discretion." Price v. Himeji, LLC, 214 N.J. 263,

284 (2013) (citing Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J.

75, 81 (2002)). Accordingly, "courts ordinarily should not disturb the

discretionary decisions of local boards that are supported by substantial

evidence in the record and reflect a correct application of the relevant principles

of land use law." Lang v. Zoning Bd. of Adjustment, 160 N.J. 41, 58-59 (1999).

A-0896-15T2 8 The party challenging the action of a zoning board carries the burden of

demonstrating that the Board acted arbitrarily, capriciously, or unreasonably.

Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 33 (2013) (citing Smart SMR of

N.Y., Inc. v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998)). "A board

acts arbitrarily, capriciously, or unreasonably if its findings of fact in support of

a grant or denial of a variance are not supported by the record, or if it usurps

power reserved to the municipal governing body or another duly authorized

municipal official." Ibid. (citations omitted) (first citing Smart SMR of N.Y.,

Inc., 152 N.J. at 327; then citing Leimann v. Bd. of Adjustment, 9 N.J. 336, 340

(1952)). "Even when doubt is entertained as to the wisdom of the [board's]

action, or as to some part of it, there can be no judicial declaration of invalidity

in the absence of clear abuse of discretion[.]" Kramer v. Bd. of Adjustment, 45

N.J. 268, 296-97 (1965).

III.

On appeal, plaintiff makes two primary arguments. First, he contends that

because the 2013 application mistakenly included a portion of the Township's

right-of-way as part of the Property, that application was defective. Thus, as

subparts of this first argument, plaintiff contends that (1) the Millers lacked

standing to make the 2013 application because they did not own the entire

A-0896-15T2 9 Property; (2) the Board lacked jurisdiction to grant the variances because of that

mistake; (3) the Millers were not a "developer" as required by the MLUL; (4)

the Millers were required to reoffer the Property for sale to plaintiff in 2 016;

and (5) the variances granted in 2014 do not apply to the 2016 application.

Second, plaintiff asserts that the Board acted arbitrarily, capriciously, and

unreasonably in granting the variances to the Millers. As subparts of that second

argument, plaintiff maintains that (1) the Millers failed to carry their burden of

proof; (2) the Millers failed to prove the positive criteria for the variances; (3)

the Millers failed to prove the negative criteria for the variances; and (4) the

Board failed to properly weigh the negative criteria. We are not persuaded by

either of these arguments or any of their subparts. We will address the

arguments in two analyses.

A.

The Property is designated as Lot 12, Block 1303 on the Millburn tax map.

That property was the subject of both applications made by the Millers to the

Board in 2013 and 2016. In 2013, however, the Millers mistakenly described

the lot as consisting of 6641 square feet. A title search conducted thereafter

disclosed that a strip of land along Brookside Drive, consisting of approximately

313 square feet, had been conveyed to Millburn Township as part of the right-

A-0896-15T2 10 of-way for Brookside Drive. Accordingly, the actual size of the lot was

approximately 6328 square feet.

To account for that mistake, the Millers revised their architectural plans

and filed an amended application with the Board in 2016. The Board then

considered that amended application, held a hearing, considered the objections

and arguments raised by plaintiff, and found that the 2013 application

mistakenly included the Township's right-of-way, but that mistake did not have

a material impact on any of the variances that were granted to the Millers.

Indeed, the Township's right-of-way was not part of the land that was being

developed. The only impact of the Township's right-of-way was to cause the

Millers to reduce the size of their proposed home.

The MLUL defines an applicant as "a developer submitting an application

for development." N.J.S.A. 40:55D-3. A "developer" is then defined as "the

legal or beneficial owner or owners of a lot or of any land proposed to be

included in a proposed development, including the holder of an option or

contract to purchase, or other person having an enforceable proprietary interest

in such land." N.J.S.A. 40:55D-4.

The MLUL authorizes the Board to grant variances from zoning

ordinances when "the developer of such property" can demonstrate that the

A-0896-15T2 11 property is "exceptional[ly]" narrow, shallow, or otherwise shaped, or has

"exceptional topographical conditions" or there is an "extraordinary and

exceptional situation uniquely affecting a specific piece of property[.]" N.J.S.A.

40:55D-70(c)(1).

The MLUL does not state that the applicant or developer must be the legal

or beneficial owner of all the land; rather, the statute provides that the applicant

or developer must have a proprietary interest in "any land proposed to be

included in a proposed development." N.J.S.A. 40:55D-4. Accordingly, under

the facts of this case, we reject plaintiff's argument that the Millers did not own

the property that was the subject of the 2013 application. We also reject

plaintiff's arguments concerning the Millers' lack of standing, the Board's l ack

of jurisdiction, the Millers' requirement to reoffer the Property for sale to

plaintiff, and the arguments that the variances granted in 2014 do not apply to

the 2016 application. The Board acted within its authority in treating the

mistake as just that—an innocent mistake.

B.

Plaintiff's remaining arguments are all addressed to the variances granted

by the Board. In rejecting plaintiff's arguments in the first prerogative writ s

action, the trial court issued a well-reasoned written opinion. In that opinion,

A-0896-15T2 12 the court analyzed the arguments plaintiff iterates on this appeal. We reject

those arguments for the reasons set forth in the trial court's written opinion

issued on August 12, 2015.

Plaintiff's arguments that the Board acted outside its authority, or

arbitrarily, capriciously, or unreasonably in issuing the modified variances in

2016 lack sufficient merit to warrant further discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.

A-0896-15T2 13