Golan Shazo v. Zoning Board of Adjustment of the Borough of Tenafly

• Court: New Jersey Superior Court Appellate Division
• Decided: December 5, 2023
• Docket: A-3206-21
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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 NO. A-3206-21

GOLAN SHAZO,

Plaintiff-Respondent/ Cross-Appellant,

v.

ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF TENAFLY, a/k/a BOARD OF ADJUSTMENT BOROUGH OF TENAFLY,

Defendant-Appellant/ Cross-Respondent,

and

BOROUGH OF TENAFLY,

Defendant. _______________________________

Argued November 14, 2023 – Decided December 5, 2023

Before Judges Mayer and Enright.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7857-21. Jeffrey A. Zenn argued the cause for appellant/cross- respondent (Cullen and Dykman LLP, attorneys; Jeffrey A. Zenn, on the briefs).

Robert M. Mayerovic argued the cause for respondent/cross-appellant.

PER CURIAM

Defendant Zoning Board of Adjustment of the Borough of Tenafly

(Board) appeals from a May 13, 2022 order remanding the matter to the Board

for supplemental testimony. Plaintiff Golan Shazo cross-appeals from that same

order. For the reasons that follow, we vacate the May 13, 2022 order remanding

the matter to the Board. We remand to the trial court for the judge to decide the

issues presented in Shazo's complaint in lieu of prerogative writs based on the

record before the Board.

We recite the facts from the judge's May 13, 2022 written decision. Shazo

owns property in Tenafly. On April 26, 2021, he applied to the Board for a side

yard variance to decrease the minimum side yard setback. The municipality's

zoning ordinance required a ten-foot side yard setback and Shazo proposed a

five-foot side yard setback along the right sideline of his property. Shazo

A-3206-21 2 required the side yard variance to construct a new two-family home, replacing

an existing single-family home.1 No additional variances were required.

On August 2, 2021, the Board held a public hearing on Shazo's

application. The sole witness at the hearing, Shazo's architect, testified any

redevelopment of the property would require a side yard variance, noting "[a]

fifteen-foot-wide structure, be it a one-family or two-family, would be very

difficult to operate as a residence," and "the residences are . . . [the] minimal

width that they can be." Although he was not a licensed planner, the architect

testified in support of Shazo's requested side yard variance.

On September 13, 2021, the Board adopted a memorializing resolution

denying Shazo's variance application. In its resolution, the Board found the

proposed two-family house would "loom over the adjacent dwelling" with "very

little light and air between the properties," and therefore "adversely impact the

light and air of the neighboring property owners." The resolution further found

Shazo's proposed parking for six cars "excessive" and "detriment[al] to the

zon[ing] plan and the streetscape," and the proposed garage "too tight for . . .

1 The property is zoned for both single family and two-family homes.

A-3206-21 3 cars to pull in and out." Based on these findings, the Board concluded Shazo

failed to satisfy the requirements for a variance and denied his application.

On November 30, 2021, Shazo filed a complaint in lieu of prerogative

writs challenging the Board's denial of his variance. His complaint named the

Borough of Tenafly (Borough) as an additional defendant. Shazo subsequently

dismissed his claims against the Borough.

The judge heard argument on Shazo's prerogative writs action on May 13,

2022, and entered an order that same day remanding the case to the Board. The

order stated "[t]he matter is remanded to the Borough of Tenafly Zoning Board

of Adjustment for [the] reasons set forth in the attached [o]pinion." In her

accompanying written decision, the judge asserted the Board's findings and

conclusions were unsupported by expert testimony. She also noted "[n]either

the application nor the Board's [r]esolution indicate[d] on which basis the

application was made or denied." She wrote:

Neither [Shazo] nor the [B]oard produced any testimony regarding the [Tenafly] Master Plan, and it is not clear to the court that [Shazo's architect] was qualified to testify as a planner. Although the burden of proof lies with the plaintiff[,] the court cannot decide . . . that the Board acted in a manner which was not arbitrary, unreasonable, or capricious on this record. The court finds many of the conclusions in the [r]esolution are without basis in the record.

A-3206-21 4 On remand, the judge directed the parties to "supplement [the] record with

additional testimony and experts, including that of planners."

The Board filed an appeal and Shazo filed a cross-appeal from the May

13, 2022 order. On appeal, the Board argues the judge erred in failing to defer

to its findings of fact in the resolution denying Shazo's variance. In addition,

the Board asserts the judge improperly shifted the burden of proof to the Board

in reviewing Shazo's prerogative writs action. Further, the Board claims the

judge erred in requiring it to present expert testimony supporting the denial of

Shazo's variance. On the cross-appeal, Shazo requests that we exercise original

jurisdiction and decide the case based on the evidence and testimony presented

to the Board.

We first address the Board's appeal. "[I]n all actions tried without a jury,"

a trial court must, "by an opinion or memorandum decision . . . [,] find the facts

and state its conclusions of law thereon." R. 1:7-4. A trial judge "must make

adequate findings of fact 'so that the parties and the appellate court may be

informed of the rationale underlying his [or her] conclusion[s].'" Ducey v.

Ducey, 424 N.J. Super. 68, 74 (App. Div. 2012) (quoting Esposito v. Esposito,

158 N.J. Super. 285, 291 (App. Div. 1978)). "Neither the parties nor [an

appellate court] are well-served by an opinion devoid of analysis," especially

A-3206-21 5 because "our function as an appellate court is to review the decision of the trial

court, not to decide the motion tabula rasa." Estate of Doerfler v. Fed. Ins. Co.,

454 N.J. Super. 298, 301-02 (App. Div. 2018) (alteration in original) (quoting

Great Atl. & Pac. Tea Co., Inc. v. Checchio, 335 N.J. Super. 495, 498 (App. Div.

2000)).

Where a party challenges a board's decision "in a prerogative writ action,

a trial court must make specific factual findings and conclusions of law to

support its decision." L.I.M.A. Partners v. Borough of Northvale, 219 N.J.

Super. 512, 519 (App. Div. 1987). When a trial court reviewing a municipal

board's decision fails to state findings of fact and conclusions of law, an

appellate panel must remand the case to the trial court so the appellate court may

"properly perform its reviewing function." Id. at 520.

In this prerogative writs action, the judge was tasked with determining

whether the Board's decision was "arbitrary, capricious or unreasonable." CBS

Outdoor, Inc. v. Borough of Lebanon Plan. Bd./Bd. of Adj., 414 N.J. Super. 563,

577 (App. Div. 2010) (quoting Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296

(1965)). In a zoning dispute, "the role of the court is to evaluate whether the

Zoning Board's decision 'is founded on adequate evidence[,]' and . . . 'the record

made before the Board is the record upon which the correctness of the Board's

A-3206-21 6 action must be determined.'" Price v. Himeji, LLC, 214 N.J. 263, 295 (2013)

(citations omitted). Thus, the judge was required to "review the record before

the [b]oard in order to determine whether [its] decision was adequately

supported by the evidence." CBS Outdoor, Inc., 414 N.J. Super. at 578 (citing

Lang v. Zoning Bd. of Adj. of Borough of N. Caldwell, 160 N.J. 41, 58 (1999)).

Moreover, because "the deference accorded to a board's denial of a variance is

greater than that given to its decision to grant a variance," the judge was required

to determine whether "the evidence before the local board was 'overwhelmingly

in favor of [Shazo].'" Id. at 578-79 (quoting Scully-Bozarth Post 1817 of the

VFW v. Plan. Bd. of City of Burlington, 362 N.J. Super. 296, 314-15 (App. Div.

2003)). The single sentence in the judge's order, remanding the matter to the

Board for the parties to supplement the record, failed to satisfy the requirements

of Rule 1:7-4.2

In order to obtain a variance under N.J.S.A. 40:55D-70(c)(1), as requested

by Shazo, an applicant must demonstrate "(1) that he 'will suffer exceptional or

undue hardship if the variance is not granted—the so-called positive criteria;

2 We note "appeals are taken from orders and judgments and not from opinions, oral decisions, informal written decisions, or reasons given for the ultimate conclusion." Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001). See also R. 2:2-3(a). A-3206-21 7 and (2) that the variance will not result in a substantial detriment to the public

good or the zoning plan—the so-called negative criteria.'" Cohen v. Bd. of Adj.

of Borough of Rumson, 396 N.J. Super. 608, 615 (App. Div. 2007) (quoting

Nash v. Bd. of Adj. of Twp. of Morris, 96 N.J. 97, 102 (1984)).

Applying this legal standard, based on the evidence presented to the

Board, the judge was required to determine whether Shazo presented affirmative

evidence satisfying the positive and negative criteria for a variance under

N.J.S.A. 40:55D-70(c)(1). The judge failed to do so here.

Nor did the judge address whether the Board's denial of the variance was

arbitrary, capricious, or unreasonable. We note "the absence of evidence in

support of [a] denial does not in itself mean that the board's determination is

arbitrary. Since the burden rests with the applicant to establish the criteria for

the grant of the variance, [the applicant] must demonstrate that the affirmative

evidence in the record dictates the conclusion that the denial was arbitrary."

Kenwood Associates v. Bd. of Adj. of City of Englewood, 141 N.J. Super. 1, 5

(App. Div. 1976).

On appeal, both parties assert the judge had sufficient evidence, based on

the record before the Board, to decide the issues raised in Shazo's complaint in

lieu of prerogative writs. However, in her written decision, the judge believed

A-3206-21 8 there was insufficient information to decide the issues. Thus, the judge

remanded the matter for a "do-over," allowing the parties to supplement the

record.

The judge had the complete record related to Shazo's variance application

and the Board's decision on that application. Rather than decide the issues in

Shazo's complaint in lieu of prerogative writs based on the record as it existed,

the judge remanded the matter for supplementation of the record by the parties.

The judge did not decide whether Shazo satisfied his burden for entitlement to

the variance or whether the Board's denial was arbitrary, capricious, or

unreasonable. Thus, we are constrained to vacate the May 13, 2022 order and

remand for the trial court to do so.

We next address Shazo's cross-appeal requesting we exercise original

jurisdiction and decide his variance application. We decline to do so.

An appellate court "can 'exercise . . . original jurisdiction as is necessary

to the complete determination of any matter on review.'" Rivera v. Union Cnty.

Prosecutor's Off., 250 N.J. 124, 146 (2022) (omission in original) (quoting R.

2:10-5). "[T]he exercise of original jurisdiction is appropriate when there is

'public interest in an expeditious disposition of the significant issues raised.'"

Price 214 N.J. at 294 (quoting Karins v. City of Atlantic City, 152 N.J. 532, 540-

A-3206-21 9 41 (1998)). "This power should be invoked 'sparingly,' and is generally used

when the record is adequately developed and no further fact-finding is needed."

Rivera, 250 N.J. at 146 (citations omitted) (quoting State v. Jarbath, 114 N.J.

394, 412 (1989)). Additionally, an appellate court should exercise original

jurisdiction to eliminate unnecessary litigation only if that litigation would be

"lengthy" or "burdensome." See Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289,

302 (App. Div. 2009) ("There is . . . no threat of perpetual litigation [in this

appeal], and it does not appear that the exercise of original jurisdiction is

necessary to avoid lengthy or burdensome litigation.").

We decline to exercise original jurisdiction although we recognize

remanding this case to the trial court may briefly delay resolution of the matter.

However, the trial judge has a complete record to render a decision on Shazo's

action in lieu of prerogative writs. Thus, a remand in this matter should not be

lengthy or burdensome. Moreover, original jurisdiction would not be

appropriate because this case implicates one individual's private interests rather

than the public interest.

Reversed and remanded to the trial court for further proceedings

consistent with this opinion. We take no position on the outcome of the matter

on remand. We do not retain jurisdiction.

A-3206-21 10