Ten Stary Dom Partnership v. T. Brent Mauro (069079)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

Ten Stary Dom Partnership v. T. Brent Mauro (A-52-11) (069079)

Argued November 5, 2012 -- Decided August 5, 2013

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court considers defendant’s entitlement to a bulk variance from a frontage zoning
requirement and the appropriateness of affirming an order denying a variance without prejudice.

Defendant T. Brent Mauro owns property in the Borough of Bay Head that fronts on 10.02 feet of Willow
Drive. The property is located in a single-family, residential zone that requires frontage of fifty feet. Mauro’s property
conforms to all other zoning requirements. Mauro’s initial building permit application was denied based on a finding
that Willow Drive was not a public street. Thereafter, the Borough Council adopted a resolution permitting Mauro to
improve Willow Drive to have it certified as a public street. Mauro subsequently filed an application with the
Planning Board for a variance to permit a single-family home with frontage of 10.02. At the Board hearings, Mauro
testified that he had attempted, but failed, to acquire adjacent land to conform to the frontage requirement. A licensed
professional engineer and planner testified, among other things, that a variance denial would make the lot virtually
useless and that drainage for the site would be designed in accordance with appropriate engineering standards. Mauro
also submitted architectural plans including fire retardant building materials and a fire suppression system, and a New
Jersey Department of Environmental Protection (NJDEP) determination authorizing the use of fill on the site and
construction of a single-family house pursuant to a Freshwater Wetlands Statewide General Permit. Finally, the
Borough’s fire chief and his assistant testified that the fire company could adequately respond to an on-site emergency
at the property. In a 5-to-4 vote, the Board granted the variance conditioned on completion of improvements to
Willow Drive and approval of a stormwater management plan and fire suppression system.

Plaintiff Ten Stary Dom Partnership (Ten Stary Dom), owner of a neighboring property, filed an action in lieu
of prerogative writs challenging the Board’s action. After the parties confirmed that a voting board member had
missed relevant meetings, the trial court remanded the matter to the Board for deliberation and a new vote on the
existing record, and retained jurisdiction. In a 5-to-4 vote, a reconstituted Board denied the frontage variance. The
Board found that there was not sufficient access to permit the fire department to respond to a fire on the applicant’s
property; that the property is “in a natural wetland condition,” as designated by the NJDEP, and serves as a drainage
collector for surrounding properties; and that Mauro failed to provide engineering data addressing a recharge system
for the property or the amount of fill required. The Board concluded that the application did not promote the
appropriate use of the land, did not secure safety from fire and flood, did not provide sufficient space for a residential
use, and did not promote a desirable visual environment or provide adequate light, air, and open space. The Board
determined that a variance would not advance the purposes of the zoning ordinance and that its denial of a variance
would not result in undue hardship to Mauro.

The Law Division found that Mauro established the positive criteria but failed to establish the negative
criteria to support a variance. Primarily citing the inadequacy of the evidence concerning drainage on the property, the
court found that Mauro failed to carry his burden of proof that reduced frontage would not undermine the zoning plan
of the community. The trial court, however, affirmed the Board’s denial of the variance without prejudice, thereby
permitting the applicant to return to the Board with the same application on the same or additional evidence. Both
parties appealed. The Appellate Division reversed, concluding that Mauro presented sufficient evidence to support the
negative and positive criteria for the variance and that the Board’s findings were not supported by the record. The
panel found that Mauro was not obligated to address drainage at the time of the variance approval because drainage is
an issue relevant to obtaining subsequent site plan review. The panel did not reach the propriety of the trial court’s
denial without prejudice because it found that the variance should have been approved. This Court granted Ten Stary
Dom’s petition for certification. 209 N.J. 96 (2011).

HELD: Defendant satisfied the positive and negative criteria and is therefore entitled to a bulk variance from a
frontage zoning requirement. The trial court’s affirmance of the Board’s denial of the variance without prejudice
violated the principle of res judicata.
1. Bulk or dimensional provisions of a zoning ordinance control lot size and building location on a parcel of land.
N.J.S.A. 40:55D-70(c)(1) permits a variance from a bulk requirement, such as frontage, when, by reason of the
property’s conditions, strict application of the requirement would present peculiar and exceptional practical difficulties
or undue hardship to the applicant. Efforts made to bring the property into compliance with the ordinance are relevant
to hardship. An applicant for a (c)(1) variance must satisfy the negative criteria, which requires proof that the variance
will not result in substantial detriment to the public good or substantially impair the purpose of the zoning plan.
N.J.S.A. 40:55D-70(c)(2) permits a variance if the deviation from bulk or dimensional provisions would advance the
purposes of the zoning plan and if the benefit derived from the deviation would substantially outweigh any detriment.
The positive criteria include proof that the characteristics of the property present an opportunity to put the property
more in conformity with development plans and advance zoning purposes. The applicant bears the burden of proving
both the positive and negative criteria. (pp. 15-18)

2. An application for a (c)(1) or (c)(2) bulk variance often implicates purposes of the Municipal Land Use Law
(MLUL), N.J.S.A. 40:55D-1 to -163, including promoting public health; minimizing threats from disasters; providing
adequate light, air, and open space; and promoting a desirable visual environment. Evaluation of a bulk variance
request, however, must be directed to the specific zoning purposes actually implicated by the request. For example,
preservation of light, air, and open space may be a valid inquiry in assessing a variance from setback requirements,
and a variance from lot coverage requirements may implicate drainage and flood concerns. A minor deviation from a
height restriction, however, may have no impact on the valid goal of maintaining sufficient undeveloped area on a lot
to foster light, air, and open space. A planning board’s decision is presumptively valid. The party challenging the
action of a planning board carries the burden of demonstrating that the board acted arbitrarily, capriciously, or
unreasonably by making a decision not supported by the record. (pp. 18-22)

3. The Board’s findings lack support in the record in all critical respects. Without a variance, the property cannot be
developed for residential use, the only permitted use in the zone. Mauro’s attempts to cure the nonconformity by
acquiring adjacent property failed. The Board also disregarded Mauro’s obligation to improve Willow Drive, which
addresses in part the ability of fire personnel to access the site; the testimony of the fire chief and his assistant that the
fire company could adequately respond to an on-site emergency; that the plans incorporate a fire suppression system
and fire retardant materials; and that the NJDEP issued a general permit to bring fill onto the property. In addition,
the Board ignored that the property conformed in all respects, except frontage, to the zoning ordinance for single-
family homes. Presumably, the Borough has already determined that a residence constructed on a lot the size of the
applicant’s meets all setback and height requirements and promotes and provides adequate light, air, and open space,
and a desirable visual environment. The Board’s findings fail to demonstrate how a ten-foot frontage rather than a
fifty-foot frontage would constitute a substantial detriment to the zoning plan. (pp. 23-28)

4. The Board afforded undue weight to the drainage factor in evaluating whether a variance from the frontage
requirement undermined the Borough’s zoning plan. Although drainage and the risk of flooding are legitimate zoning
concerns, Mauro’s plan is not a development proposal that would add many more units to an existing space. The
property conforms to the zoning plan’s single-family residential use. The Board delved into concerns that can be
adequately addressed in another way. A property owner who seeks to construct a house on a residential lot must apply
for a building permit. See N.J.S.A. 52:27D-130. The municipal building official determines whether the property
owner’s plans conform to the municipal building standards, including proper drainage and elevation to minimize the
impact of flooding. Thus, the drainage concerns will be considered during the building permit process. The record
does not support that Mauro failed to establish the positive or negative criteria for a (c)(1) or (c)(2) variance. (pp. 28-
30)

5. The trial court’s denial without prejudice, which permitted Mauro to return to the Board with the same application
on the same or additional evidence, ignored the principle of res judicata. Res judicata bars resubmission of the same
proposal following a dispositive ruling by a planning board. In this case, it was incumbent on the judge to affirm,
reverse, or modify the decision of the Board. (pp. 30-32)

The judgment of the Appellate Division is AFFIRMED AS MODIFIED.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, HOENS, and PATTERSON; and
JUDGE RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s opinion.

2
 SUPREME COURT OF NEW JERSEY
A-52 September Term 2011
069079

TEN STARY DOM PARTNERSHIP,

Plaintiff-Appellant,

v.

T. BRENT MAURO and
THE BOROUGH OF BAY HEAD
PLANNING BOARD,

Defendants-Respondents.

Argued November 5, 2012 – Decided August 5, 2013

On certification to the Superior Court,
Appellate Division.

Joseph Michelini argued the cause for
appellant (O'Malley Surman & Michelini,
attorneys).

Steven A. Zabarsky argued the cause for
respondent Borough of Bay Head Planning
Board (Citta, Holzapfel & Zabarsky,
attorneys; Mr. Zabarsky and Christian E.
Schlegel, on the letter in lieu of brief).

Richard H. Woods argued the cause for
respondent T. Brent Mauro.

JUDGE CUFF (temporarily assigned) delivered the opinion of

the Court.

This appeal arises in the context of a ten-year attempt by

the owner of a residential lot to build a house. We review a

judgment of the Appellate Division reversing the denial of an

application for a variance, without prejudice, from the frontage
requirement in the zone and ordering issuance of a bulk

variance. This appeal permits us to address the weight to be

accorded site-specific conditions, such as drainage, when the

proposed development conforms to the zoning requirements in all

respects but frontage. We also address the appropriateness of

affirming an order denying a variance without prejudice.

I.

Defendant T. Brent Mauro owns a lot in the Borough of Bay

Head (Borough). The lot is fifty feet by ninety-five feet and

located on Willow Drive, a 500-foot long passage best described

as a lane or alley. Garages for the homes fronting on the

streets north and south of Willow Drive line the lane. Mauro’s

property is situated at the end of the lane and fronts only on

10.02 feet of Willow Drive.

The property is located in a single-family, residential

zone that requires frontage of fifty feet. The property

conforms to all other zoning requirements, including lot size,

and the proposed residence conforms to all setback and height

requirements of the zone. Three easements, which benefit the

property, one for emergency access and two for utilities,

traverse neighboring properties. The property is unimproved and

accepts natural drainage from the neighboring properties and

Willow Drive.

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 Mauro’s attempt to build a single-family house on the lot

commenced in 2002. In September 2002, the Borough Attorney

rendered an opinion that Willow Drive was not a municipal

street; as a result, the zoning officer denied Mauro’s

application for a building permit. See N.J.S.A. 40:55D-35

(requiring lot to abut public street for building permit to

issue). Mauro filed an action in lieu of prerogative writs

challenging that decision. The matter was resolved when the

Borough Council adopted a resolution on January 17, 2006,

permitting Mauro to improve Willow Drive in accordance with the

engineering specifications utilized to improve another street in

the Borough. The Borough Council directed that, if improved in

accordance with those specifications, Willow Drive would be

certified as a public street. A January 3, 2006 order in the

action contesting the 2002 denial of the building permit

provided that Mauro “will be entitled to a building permit

subject to improvement of Willow Drive in accordance with the

governing body’s requirements, and [Mauro] obtaining a frontage

variance and any other variances, if required by the Planning

Board.”

Mauro filed an application with defendant the Borough of

Bay Head Planning Board (Planning Board or Board) for a bulk

variance pursuant to N.J.S.A. 40:55D-70(c) to permit development

of the property with a frontage of 10.02 feet rather than the

3
required fifty feet. The Board conducted hearings on three

dates: August 15, 2007; September 19, 2007; and November 28,

2007. Mauro testified that the proposed single-family dwelling

would meet all bulk requirements other than frontage. He

testified that he had attempted, but failed, to acquire

additional land from neighboring property owners to conform to

the frontage requirement. He also testified that his

discussions with neighboring property owners to purchase his lot

had “come to a halt.”

Mauro presented testimony from Robert Burdick, a licensed

professional engineer and professional planner, who confirmed

that the best use of the property was single-family residential.

Burdick also stated that “the denial of the variance would

certainly represent an exceptional and undue hardship on [Mauro]

. . . by making the lot virtually useless.” He confirmed that

the lot and the proposed single-family house conformed in all

other respects to the zoning ordinance and that the easement for

emergency access and the access provided by Willow Drive would

permit response by emergency vehicles and personnel to an

emergency on the property. Finally, Burdick testified that the

drainage for the site would be designed in accordance with

appropriate engineering standards and that runoff would not flow

onto the neighboring properties.

4
 Mauro submitted a determination from the New Jersey

Department of Environmental Protection (NJDEP) authorizing the

use of fill on the site and construction of a single-family

house pursuant to a Freshwater Wetlands Statewide General

Permit. Mauro also submitted architectural plans for the

proposed house. The specifications included a fire suppression

system and use of fire retardant building materials.

The Board subpoenaed two witnesses to address fire safety.

William Vander Noot, Chief of the Bay Head Fire Company,

conceded that only one truck could be brought down Willow Drive,

but he also testified that fighting a fire on the subject

property would not necessarily be more dangerous than on any

other property. William Boyle, Assistant Chief, concurred with

Vander Noot. Both men stated that the installation of

residential sprinklers in the proposed structure, the use of

fire retardant building materials, and the installation of a

fire hydrant on Willow Drive, as required by the road

improvements, would assist fighting a fire on the property.

Several members of the public opposed the variance. A

member of plaintiff Ten Stary Dom Partnership (Ten Stary Dom),

owner of a neighboring property, expressed concerns about the

recharge system and stormwater run-off onto adjacent properties,

the aesthetic impact of a ten-foot frontage, the after-

5
improvement width of Willow Drive, safety of children playing on

Willow Drive, and fire safety.

On November 28, 2007, in a 5-to-4 vote, the Board granted

the variance. The Board conditioned the variance on completion

of improvements to Willow Drive and further provided that a

building permit could not issue until completion of those

improvements. In addition, the house constructed on the

property was required to conform to the plans submitted in

support of the variance, the Board Engineer’s approval of the

stormwater management plan was necessary, and a fire sub-code

official’s approval of the fire suppression system installed in

the structure was required. In its resolution, the Board

determined that failure to grant the variance would result in

undue hardship to Mauro and that the variance could be granted

without undue detriment to the public good and would not “impair

the intent and purpose of the zone plan, master plan and/or

zoning ordinances.” The resolution incorporated the following

findings of fact:

2. The application for development does not
block the light, air or space of any
adjacent property owners based upon the
dimensions of the house as provided for in
the elevation and architectural plans as
well as the placement of the house, and,
therefore, providing for the setbacks as
established during the testimony.

3. The property . . . has an exceptional
and unique configuration in that it only has

6
 10 feet of frontage on Willow Drive which is
a preexisting, non-conforming condition and
also constitutes an extraordinary and
exceptional situation uniquely affecting the
specific piece of property which results in
peculiar and exceptional practical
difficulties and undue hardship to the
Applicant.

. . . .

5. The application for development and the
lot itself completely conforms to all the
zoning requirements of the [Borough] except
for lot frontage.

6. . . . [T]here are adequate provisions
for emergency services to be provided to the
subject property . . . .

7. The proposed application for development
will contribute to the desirable visual
environment of the neighborhood as the
aesthetics of the house proposed are
consistent with those houses in the
[Borough] and the surrounding neighborhood.

II.

Ten Stary Dom filed an action in lieu of prerogative writs

challenging the Board’s action. It argued that the Board acted

arbitrarily, capriciously, and unreasonably by granting the

frontage variance. Ten Stary Dom also asserted irregularities

in the Board proceedings approving the variance, specifically

the participation of a member who had not attended all of the

meetings and had not read the transcripts or listened to tapes

of the proceedings. After all parties confirmed that

7
allegation, the trial court remanded the matter to the Board for

deliberation and a new vote on the existing record.

On December 19, 2009, a reconstituted Board1 considered the

application on the same record compiled by the applicant in

support of his August 2006 variance application. The Board, by

a 5-to-4 vote, denied the frontage variance. The Board founded

its decision on concerns expressed by neighboring property

owners about drainage and the water recharge system. The Board

also cited fire safety and aesthetic concerns. In its January

20, 2010 resolution, the Board determined that the failure to

grant the variance would not result in undue hardship to the

applicant and the purposes of the zoning ordinance would not be

advanced by a deviation from the zoning ordinance. The

resolution incorporated the following findings of fact:

1. The subject property in question
is located at the dead end of a 500 foot
alley, subject to the requirement of
constructing a road, with a width arguably
between 18 and 20 feet. Therefore, for
emergency purposes, only one (1) fire truck
or such other emergency vehicle can access
the site to the exclusion of all others.
When fighting a fire, the usual three (3)
fire trucks which respond to a fire will
only be able to fight the fire with one (1)
truck on Willow Drive and the other
emergency vehicles located on either Park
Avenue or Bridge Avenue. This poses a
substantial risk to the improvements located

1
During the period between the adoption of the November 2007
resolution and remand, there had been a change of membership on
the Board.

8
on the property as well as any persons
located at the property at the time of a
fire or emergency due to the limited access
to the property. Further, if there is a
vehicle parked on Willow Drive at the time
of a fire, there will be no access
whatsoever for a fire truck to be parked
adjacent to the property to fight a fire.

2. The subject property is designated
by the New Jersey Department of
Environmental Protection as a wetland
property. The property is in a natural
wetland condition and, during rain, the
property is known as “the swamp”. In
addition, water runs down Willow Drive
toward the subject property and accumulates
run off from other adjacent properties as
well. There have been no calculations
provided to the Planning Board as to how a
recharge system would actually be designed
and/or work successfully with regard to the
subject property. There have been no
calculations provided to the Planning Board
with regard to the amount of fill which will
be necessary, nor topographic surveys or
soil investigations performed to determine
the exact elevation which will result from
filling of the wetland on the property, as
well as the design of a recharge system so
that all storm water which runs onto the
property or is on the property shall be
recharged into the ground and not further
run off to any adjacent property owners or
onto Willow Drive.

3. The subject property is surrounded
by six (6) residential houses. To the north
side of the property, there are three (3)
residential houses which have rear yards
extending to what will be the subject
property’s side yard. In addition, to the
southern portion of the property, there are
two (2) houses which have rear yards which,
again, will abut to the side yard of the
subject property. Finally, located in the

9
 very front yard of the property, will be
another residential dwelling.

4. The subject property has only 10
feet of lot frontage on a 20 foot wide
alley/road which greatly prohibits access to
the subject property, having only 20% [] of
the necessary 50 feet of road frontage
pursuant to the Borough of Bay Head Land Use
Ordinance.

5. The application for development
does not promote the purposes of zoning
under the State Municipal Land Use Law and,
more specifically, does not:

A. Encourage an appropriate use or
development of land which promotes the
public health, safety and general welfare.

B. Secure safety from fire and
flood.

C. Provide sufficient space for a
residential use according to environmental
requirements in order to meet the needs of
the homeowners of the adjacent properties.

D. Promote a desirable visual
environment.

E. Provide adequate light, air and
open space.

The Law Division had retained jurisdiction when it remanded

the matter to the Board. Thus, Mauro filed a petition with the

Law Division to review the January 20, 2010 resolution. Mauro

asserted that the denial of the variance was arbitrary,

capricious, and unreasonable because the findings were

inconsistent with the Board’s previous findings. He also

10
contended that the denial of the variance constituted a taking

of his property without just compensation.

By order dated July 13, 2010, the Law Division affirmed the

action of the Board without prejudice. The order provided that

Mauro “shall have the right to file a new application with the

Board seeking the same or such other relief” to permit

development of the property. In his June 17, 2010 oral opinion,

the judge determined that Mauro had not carried his burden to

establish the negative criteria to support a variance. That is,

Mauro failed to carry his burden of proof that reduced frontage

would not undermine the zoning plan of the community. The judge

further explained that the critical inadequacy of Mauro’s proof

concerned drainage. The judge stated:

This court finds that the Board’s denial of
the application in the face of the absence
of critical evidence presented is neither
arbitrary nor unreasonable. [Mauro’s]
application might have been more persuasive
if the only issue was fire safety. Such a
denial in the face of relatively
uncontroverted testimony might arguably be
arbitrary and unreasonable. However, the
Board’s denial on the issue of drainage and
water displacement is neither arbitrary nor
unreasonable. This is because the Board has
the legal right to require proofs regarding
drainage and water displacement. See Field
[v. Mayor & Council of Franklin, 190 N.J.
Super. 326 (App. Div.), certif. denied, 95
N.J. 183 (1983);] Morris C[nty.] Fair Hous.
[Council v. Boonton Twp., 230 N.J. Super.
345 (App. Div. 1989)].

11
 The judge explained, however, that the denial was without

prejudice “because the case in and of itself is relatively

unusual and unique in its history.” He reasoned that a new,

fully constituted Board should have the opportunity to hear the

application anew, address questions to the witnesses, and

“determine for itself whether[,] in addition to meeting the

safety concerns, the potential flooding in adjacent properties

could be adequately addressed by applying reasonable and

appropriate engineering principles and design.” The judge also

expressed a concern that the remand procedure adopted by the

court, which confined the remand to the record compiled in 2007,

did not permit “a fair exchange with the Board,” particularly

relating to the drainage issues on the site and in the

neighborhood.

III.

Ten Stary Dom appealed the Law Division’s decision

affirming without prejudice the Board’s denial. Mauro cross-

appealed, similarly challenging the Law Division ruling that the

denial was without prejudice and also disputing the decision

affirming the Board’s denial.

The Appellate Division concluded that the Board’s findings

of fact and expressed reasons for denying the variance were

insufficient. The panel found that drainage is an issue

relevant to obtaining site plan approval rather than a zoning

12
variance and that Mauro was not obligated to convince the Board

such a plan existed at the time of the bulk variance approval.

The panel determined it was “unreasonably speculative to

consider a possible component of [Mauro’s] future drainage plan

when denying his requested variance.” Finally, the panel

declined to reach the denial without prejudice because it found

that the variance should have been approved. Accordingly, the

Appellate Division reversed the denial of the variance, finding

that Mauro presented sufficient evidence to support the variance

and concluding that the Board acted unreasonably by denying the

requested relief. The panel remanded for the grant of the bulk

variance. This Court granted Ten Stary Dom’s petition for

certification. 209 N.J. 96 (2011).

IV.

Ten Stary Dom contends that N.J.S.A. 40:55D-37(a)

establishes that applications for single-family homes are exempt

from site plan review and approval by a planning board.

Accordingly, it maintains the Appellate Division incorrectly

found that drainage issues could be considered by the Board

during the site plan approval process. Ten Stary Dom also

argues that, in finding drainage is an improper consideration

for a variance request, the Appellate Division denied the Board

the “sole opportunity to engage in meaningful review of all

aspects of the application,” that those concerns are the sole

13
province of the Board, and that the Appellate Division erred by

shifting review of drainage issues to the site plan review

stage. It also argues the Appellate Division impermissibly

substituted its own judgment for that of the Board in deciding

to grant Mauro’s application as there was sufficient evidence in

the record to support the Board’s conclusion that Mauro failed

to make a sufficient showing of hardship.

Mauro concedes that the Appellate Division improperly

stated his development plan was subject to site plan review;

however, he maintains that the “misstatement” was dictum and

does not undermine the heart of its decision. Mauro argues that

the panel’s remand to adopt a resolution granting approval was

based on the panel’s finding that he met both the positive and

negative criteria required by the statute.

The Board argues its findings of fact and conclusions of

law amply support its finding that the applicant failed to

satisfy his burden of proving the negative criteria. The Board

contends Mauro failed to provide adequate testimony regarding

numerous issues related to the variance, including how the

drainage and recharge system would work and whether the proposed

structure conflicted with the character of the neighborhood.

Additionally, the Board maintains that the decision to deny the

application without prejudice was proper, noting that, given the

conflicting decisions on the same record, it would be

14
“fundamentally unfair to deny [d]efendant Mauro the opportunity

to resubmit his application to the current Board and be heard

anew” and would deny Mauro due process.

V.

Provisions in a zoning ordinance that control the size and

shape of a lot and the size and location of buildings or other

structures on a parcel of property are known as bulk or

dimensional requirements. See N.J.S.A. 40:55D-65(b)

(authorizing zoning ordinance to regulate bulk, height,

orientation, and size of buildings and other structures). See

also Morris Cnty. Fair Hous. Council, supra, 230 N.J. Super at

353 (noting that “bulk area and yard requirements, density,

distance between buildings, off-street parking and floor area

ratio” are not design requirements but ordinance requisites from

which deviations require variance). Many ordinances dictate a

minimum amount of frontage required on a public street and

provide that a building permit may not issue to erect any

building or structure on a lot that does not front a public

street. N.J.S.A. 40:55D-35. Here, after the applicant agreed

to improve Willow Drive in accordance with standards prescribed

by the Board Engineer and the governing body agreed to accept

Willow Drive as a public street, Mauro applied for a bulk

variance from the ordinance requiring fifty feet of frontage on

a public street. We, therefore, commence our discussion with

15
the standard to be applied by a planning board to an application

for a bulk variance.

N.J.S.A. 40:55D-70(c)(1) permits a variance from a bulk or

dimensional provision of a zoning ordinance, such as frontage,

when, by reason of exceptional conditions of the property,

strict application of a bulk or dimensional provision would

present peculiar and exceptional practical difficulties or

exceptional hardship to the applicant. Such exceptional

conditions may include the dimensions of the property,

topographic conditions, or some other extraordinary or

exceptional feature unique to the property. Ibid. Undue

hardship does not include personal hardship to the property

owner. Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562,

590 (2005). Rather, it refers to the particular condition of

the property. Ibid. Hardship, however, is not synonymous with

complete inutility due to the land use restriction, Kaufmann v.

Planning Bd. for Warren Twp., 110 N.J. 551, 561-62 (1988),

although the inability to use the property for any productive

use absent a variance often informs the decision to grant a

variance from bulk requirements, Chirichello v. Zoning Bd. of

Adjustment of Monmouth Beach, 78 N.J. 544, 557-58 (1979).

An applicant who pursues a variance under N.J.S.A. 40:55D-

70(c)(1) must establish that the particular conditions of the

property present a hardship. The efforts made to bring the

16
property into compliance with the ordinance are factors that must

be considered. Jock, supra, 184 N.J. at 594; Commons v. Westwood

Zoning Bd. of Adjustment, 81 N.J. 597, 606 (1980). Those efforts

may include attempts to acquire additional land or offers to sell

the nonconforming lot to adjacent property owners. Jock, supra,

184 N.J. at 594.

In addition, an applicant for a (c)(1) variance must

satisfy the negative criteria. Nash v. Bd. of Adjustment of

Morris Twp., 96 N.J. 97, 102 (1984). The negative criteria

require proof that the variance will not result in substantial

detriment to the public good or substantially impair the purpose

of the zoning plan. Ibid.

N.J.S.A. 40:55D-70(c)(2) permits a variance for a specific

property, if the deviation from bulk or dimensional provisions

of a zoning ordinance would advance the purposes of the zoning

plan and if the benefit derived from the deviation would

substantially outweigh any detriment. The applicant bears the

burden of proving both the positive and negative criteria.

Nash, supra, 96 N.J. at 106.

For a (c)(2) variance, approval must be rooted in the

purposes of the zoning ordinance rather than the advancement of

the purposes of the property owner. Kaufmann, supra, 110 N.J. at

562-63. Thus, the positive criteria include proof that the

characteristics of the property present an opportunity to put the

17
property more in conformity with development plans and advance

the purposes of zoning. Id. at 563-64. As with the (c)(1)

variance, the negative criteria include proof that the variance

would not result in substantial detriment to the public good or

substantially impair the purpose of the zone plan. Id. at 565.

An application for a bulk or dimensional variance pursuant

to either N.J.S.A. 40:55D-70(c)(1) or (c)(2) often implicates

several purposes of the Municipal Land Use Law (MLUL), N.J.S.A.

40:55D-1 to -163, including to encourage a municipality to guide

development of land in a manner that will promote the health,

safety, and welfare of its residents, N.J.S.A. 40:55D-2(a); to

minimize or control threats to the public safety from “fire,

flood, . . . and other natural or man-made disasters,” N.J.S.A.

40:55D-2(b); and to provide “adequate light, air, and open

space,” N.J.S.A. 40:55D-2(c). A municipality is also authorized

to guide development that will promote “a desirable visual

environment,” N.J.S.A. 40:55D-2(i), and to establish “appropriate

population densities,” N.J.S.A. 40:55D-2(e).

In Kaufmann, supra, a planning board granted a variance

permitting a subdivision of an over-sized lot into two lots

“marginally insufficient in respect to frontage and side-yard

requirements” but fully consistent with all other bulk

requirements in the zone. 110 N.J. at 563, 565. The Law

Division reversed the action of the planning board, and an

18
appellate panel affirmed. Id. at 556. This Court determined

that the application presented a situation representative of the

purpose of the newly-enacted (c)(2) provision because the

subdivision plan with minor deviations from the bulk requirements

in the zone permitted two lots harmonious in size with

neighboring properties when balanced against little, if any, harm

to the zone plan. Id. at 565.

A variance from bulk requirements in a zoning ordinance

often arises in the context of an isolated nonconforming lot.

Frequently, such applications concern an undersized lot. One

commentator has observed that “[a]n isolated undersized lot is

almost always entitled to a dimensional variance.” 36 New Jersey

Practice, Land Use Law § 15.9, at 364 (David J. Frizell) (3d ed.

2005); see also Jock, supra, 184 N.J. at 575 (noting undue

hardship due to undersized nature of lot); Harrington Glen, Inc.

v. Mun. Bd. of Adjustment of Leonia, 52 N.J. 22, 28 (1968)

(discussing right to relief from zoning ordinance for undersized

lot). Nonetheless, the applicant must still satisfy the positive

and negative criteria for either a (c)(1) or (c)(2) variance.

Site conditions, including access and drainage, are valid

considerations of a board when the relief requested implicates

those conditions. In Chirichello, supra, this Court recognized

that the magnitude of the deviation from the bulk or dimensional

requirements of the zoning ordinance and the impact on the

19
zoning plan are often a matter of degree and that a board’s

consideration of a variance should recognize that fact. 78 N.J.

at 561. We stated:

We have also adverted to the fact that an
impingement of the zoning restrictions may
be of varying degrees. The less of an
impact, the more likely the restriction is
not that vital to valid public interests.
Conversely, where the change sought is
substantial, the applicant will have to
demonstrate more convincingly that the
variance will not be contrary to the public
good and general welfare expressed in the
ordinance.

[Ibid.]

In other words, care must be taken to direct the evaluation of a

request for a bulk variance to those purposes of zoning that are

actually implicated or triggered by the requested relief.

However, not every deviation from prescribed bulk standards

implicates the same concerns.

Thus, if an applicant seeks a variance from setback

requirements, traditional zoning concerns such as preservation

of light, air, and open space may be valid inquiries in an

assessment of the impact of the requested variance. If an

applicant seeks a variance from lot coverage requirements,

drainage may be a valid inquiry in an assessment of the impact

of the requested variance on the surrounding properties.

Similarly, a subdivision application that will create additional

lots and permit intensified development of the property prompts

20
examination of traditional zoning purposes, including light,

air, open space, access, and drainage. For example, in Field,

supra, the Appellate Division outlined the authority of a board

or municipal governing body to delve into the details of

drainage and sanitary sewer facilities in the context of an

approval of a 396.5 acre tract for a planned unit development

(PUD). 190 N.J. Super. at 328-29. As proposed, the PUD would

consist of 1332 townhomes and 1332 garden apartment units,

commercial development on 19.85 acres, and open space on 99.36

acres. Id. at 328. It is in that context that the Appellate

Division stated that

[i]t is evident that a municipality cannot
guide the use and development of lands in
this state if fundamental elements of a
development plan are left unresolved before
preliminary approval, leaving them instead
for an unspecified later day. . . . Certain
elements -– for example, drainage, sewage
disposal and water supply -– may have such a
pervasive impact on the public health and
welfare in the community that they must be
resolved at least as to feasibility of
specific proposals or solutions before
preliminary approval is granted. . . . If
the applicant fails to provide sufficient
information on the fundamental elements of
his plan, preliminary approval should be
denied.

[Id. at 332-33.]

On the other hand, some variances from prescribed bulk

requirements may not implicate some of the otherwise valid

zoning purposes advanced by other bulk variances. For example,

21
a minor deviation from a height restriction has no impact on lot

coverage and the valid goal of maintaining sufficient

undeveloped area on a lot to foster light, air, and open space.

A deviation from prescribed lot frontage may have no impact on

any valid zoning purpose other than the stated public interest

in location of all lots on a public street. See Kaufmann,

supra, 110 N.J. at 564-65 (finding lots with deficient frontage

not unharmonious with neighboring properties).

Finally, we acknowledge the wide latitude accorded to a

municipal planning board in the exercise of its delegated

discretion. A board’s decisions are presumptively valid, and a

court may not substitute its own judgment for that of the board

unless there has been a clear abuse of discretion by the board.

Id. at 558; Davis Enters. v. Karpf, 105 N.J. 476, 485 (1987).

The party challenging the action of a planning board carries the

burden of demonstrating that the board acted arbitrarily,

capriciously, or unreasonably. 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, ibid., or if it usurps power reserved

to the municipal governing body or another duly authorized

municipal official, Leimann v. Bd. of Adjustment of Cranford, 9

N.J. 336, 340 (1952).

22
 VI.

Applying those principles, we conclude that Mauro satisfied

both the positive and negative criteria to obtain a variance

from the frontage regulations of the zone. In focusing on the

failure of the applicant to present an engineering plan

calculated to solve the identified drainage issue on the lot,

the Board and trial court misperceived the weight to be afforded

to that factor in evaluating whether a variance from the

frontage requirements of the zone undermined the zoning plan of

the Borough. That focus also ignored the authority of the Board

to impose conditions, such as submission of a satisfactory plan

to address on-site drainage issues, for issuance of a building

permit. In addition, the Board’s findings in all critical

respects lack support in the record.

In its second resolution, the Board found that the improved

lane still did not afford sufficient access to permit the fire

department to respond to a fire on the applicant’s property.

The Board also found that the property is “in a natural wetland

condition,” as designated by the NJDEP, and that the property

serves as a drainage collector for surrounding properties. The

Board cited the absence of engineering data addressing a

recharge system for the property or the amount of fill required

or topographic surveys or soil surveys. It, therefore,

concluded that the application did not promote the appropriate

23
use of the land, did not secure safety from fire and flood, did

not provide sufficient space for a residential use, and did not

promote a desirable visual environment or provide adequate

light, air, and open space.

The trial court determined that Mauro satisfied his burden

of proving that the property has an exceptional and unique

configuration that presents a peculiar and undue hardship to

him. In doing so, it found that critical findings made by the

Board in support of its resolution had no support in the record.

The court accepted as unrebutted that the property would be

rendered useless without a variance from the frontage

requirement. The trial court also recognized that the

improvement of Willow Drive by the applicant would address the

public safety requirements of health, safety, and welfare. The

trial court cited the unrefuted testimony of the fire chief that

fire equipment suitable to fight a fire on the premises could

gain access to the property by the improved drive and from

public streets to the north and south of the property. The

court acknowledged that Mauro’s property meets all other

requirements of the R-50 zone. Finally, the trial court

concluded that Mauro had made efforts to bring the property into

conformity by offering to buy adjacent property or by offering

to sell his property to adjacent owners.

24
 The Appellate Division determined that the trial court did

not exceed its authority in its review of the Board’s findings

regarding the positive criteria. The panel agreed that the

critical findings undergirding the Board’s evaluation of Mauro’s

evidence concerning the configuration of the lot, the hardship

presented by the physical characteristics of the lot, and the

furtherance of the purposes of the zoning plan by the requested

relief were not supported by the record. Our review of the

record underscores the correctness of the determination by the

Appellate Division and the trial court that the Board’s findings

of fact regarding the applicant’s satisfaction of the positive

criteria were not supported by the record.

To be sure, the deviation from the frontage provision in

the ordinance is substantial in this case. The size of the

deviation, however, illustrates the unique and exceptional

character of the property. The magnitude of the discrepancy

between the required frontage and the actual frontage of the

property also informs the critical question of hardship because,

without a variance, the property cannot be developed for

residential use, the only permitted use in the zone. There is

no suggestion in the record of any other permitted use of the

property in its current condition. Nor is there any suggestion

that the applicant did not make a good faith effort to cure the

nonconformity by acquiring adjacent property or to alleviate the

25
need for variance relief by selling his property to adjacent

property owners.

The Board’s findings also disregarded the obligation

imposed on the applicant by the municipal governing body to

improve Willow Drive. Pursuant to the terms of the January 17,

2006 resolution, any development of the property must be

preceded by improvement of Willow Drive in accordance with

standards that permit the Borough to accept it as a public

street. The satisfaction of that antecedent act addresses in

part the ability of fire apparatus to gain access to the site to

fight a fire or for any other emergency situation. Yet, the

Board ignored the improvement of the drive, the testimony of the

fire chief and his assistant that the fire company from the

Borough and neighboring towns could adequately respond to any

on-site emergency, and the plans for the house to be constructed

on the subject property incorporating a fire suppression system

and fire retardant materials.

The Board’s findings that development of the property would

not provide adequate light, air, or open space disregard the

fact that the property conformed in all respects, except

frontage, to the zoning ordinance for single-family homes in the

R-50 zone. Presumably, the Borough has already determined that

a residence constructed on a lot the size of the applicant’s

meets all setback and height requirements and promotes and

26
provides adequate light, air, and open space, and a desirable

visual environment.

The trial court determined, however, that the applicant

failed to provide adequate information to address drainage and

water displacement. According to the court, that omission

justified a finding that the applicant failed to carry his

burden that the reduced frontage would not undermine the zoning

plan of the community. The Appellate Division determined that

the applicant had no obligation to convince the Board that a

drainage plan existed. The panel observed that drainage is

typically a matter for site plan review and the bulk variance

requested here could be conditioned on later approval of a

proper drainage plan.

The Board and the objector contend that the Appellate

Division founded its decision on a misstatement of the law.

They emphasize that, contrary to the panel’s statement, Mauro is

not required to seek site plan review for development of a

single lot. That misstatement, however, does not undercut the

validity of the panel’s opinion, because a property owner who

seeks to construct a house on a residential lot must apply for a

building permit. See N.J.S.A. 52:27D-130. The building

official, in turn, is required to determine whether the building

plan conforms to all requirements to construct a home, including

a proper drainage plan and proper elevation to minimize the

27
impact of flooding.2 See N.J.S.A. 52:27D-131(a); N.J.A.C. 5:23-

2.15A.

We, as the Appellate Division did, determine from our

review of the record that the ultimate finding that the proposed

variance and subsequent development would result in substantial

detriment to the public good or zone plan is not supported by

the record. For example, the Board found that the property is

in a natural wetland condition but disregarded the issuance of a

general permit by the NJDEP to bring fill onto the property.

The Board’s findings also fail to demonstrate how a ten-foot

2
The trial court’s reliance on Field and Morris County Fair
Housing Council may have contributed to the appellate panel’s
misstatement about the availability of site plan review. In
Field, supra, an application for a PUD on almost 400 acres
justified the board’s close examination of sewage and drainage.
190 N.J. Super. at 328, 333-34. Such close attention is hardly
applicable to the development of a lot in a residential zone
that conforms in all respects to local zoning requirements but
for the lack of sufficient frontage on a public street.
Similarly, in Morris County Fair Housing Council, supra,
the Appellate Division recognized that the appearance of a house
to be built on a nonconforming lot was a legitimate concern to a
board when considering whether to grant a “c” variance. 230
N.J. Super. at 357. Yet, the panel also determined that
appearance was irrelevant when the relief requested, i.e., a
bridle path and conservation easement in place of a fifty-foot
landscaped buffer, would effectively screen the proposed
development in a different manner. Id. at 350, 357-58. In
other words, a board cannot use the occasion of a request for a
waiver of a site plan regulation or a request for a variance
from a density provision of an ordinance to delve into areas not
implicated by the application or which can be adequately
addressed in another fashion.

28
frontage rather than a fifty-foot frontage would constitute a

substantial detriment to the zone plan.

Here, the record reveals that the Board utilized the

occasion of a request for a variance from a density standard to

delve into other concerns that can be adequately addressed in

another fashion. It is not that drainage and the risk of

flooding are not legitimate zoning concerns. Mauro’s plan,

however, is not a development proposal that would add many more

units to an existing space. The property is zoned for single-

family residential use and conforms in all respects to the

zoning standards for the zone but for the required frontage on a

public street. Except for that deficiency, Mauro could apply

for a building permit. It would then be incumbent on the

municipal building official to determine if the plans submitted

by the property owner conform with building standards in the

town, including access to water, sewer, stormwater drainage,

electric, and gas. It is in that context the municipal building

official could address whether the soil would support the

proposed foundation and the impact on surrounding properties of

the fill authorized by the general permit that the NJDEP issued.

It is in that context the municipal building official also may

determine whether the proposed plans conform to other municipal

building standards, such as any elevation standards adopted by

the municipal governing body for new or substantially damaged

29
residences in the town. Recognizing the authority of the

municipal building official, the Board could have conditioned

the variance on the issuance of a building permit. See N.J.S.A.

40:55D-18. In no event, however, does the record support the

ultimate conclusion that the applicant failed to establish the

positive or negative criteria for a (c)(1) or (c)(2) variance.

VII.

Finally, we address whether dismissal of the complaint in

lieu of prerogative writs should have been without prejudice.

After finding that the applicant established the positive

criteria for the variance, the trial court concluded that the

applicant did not satisfy the negative criteria, primarily

citing the inadequacy of the evidence adduced by the applicant

concerning drainage on the property. The trial court, however,

affirmed that denial without prejudice, thereby permitting the

applicant to return to the Board with the same application on

the same or additional evidence. We discern from the record

that the trial judge regretted the terms of the original remand

order that restricted all parties from supplementing the record

before the new vote and preventing all parties from addressing

the issue of drainage in greater detail. In doing so, however,

the trial judge side-stepped the salutary rule that bars

resubmission of the same proposal following a dispositive ruling

by the Board.

30
 The principle of res judicata has evolved principally in

the judicial system to prevent the same claims involving the

same parties from being filed and brought before a court

repeatedly. Velasquez v. Franz, 123 N.J. 498, 505 (1991). It

is a salutary rule that respects the finality of the initial

decision, limits the burden of litigation on adverse parties,

and removes unnecessary litigation from the courts. City of

Hackensack v. Winner, 82 N.J. 1, 32 (1980). “[A]n adjudicative

decision of an administrative agency ‘should be accorded the

same finality.’” Bressman v. Gash, 131 N.J. 517, 526 (1993)

(quoting Restatement (Second) of Judgments § 83 cmt. b (1982));

see also Russell v. Bd. of Adjustment of Tenafly, 31 N.J. 58, 65

(1959).

If an applicant files an application similar or

substantially similar to a prior application, the application

involves the same parties or parties in privity with them, there

are no substantial changes in the current application or

conditions affecting the property from the prior application,

there was a prior adjudication on the merits of the application,

and both applications seek the same relief, the later

application may be barred. It is for the Board to make that

determination in the first instance. Bressman, supra, 131 N.J.

at 527; Russell, supra, 31 N.J. at 67. By permitting the

applicant to return to the Board with the same application, the

31
trial judge ignored the salutary purposes of the principle of

res judicata, usurped the role of the Board to determine if it

should hear the same application involving the same parties once

again, and deprived all parties of the benefits of a final

decision. In this case, it was incumbent on the judge to

affirm, reverse, or modify the decision of the Board, not to

prolong an already protracted proceeding.

VIII.

The judgment of the Appellate Division is affirmed as

modified.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, HOENS, and
PATTERSON; and JUDGE RODRÍGUEZ (temporarily assigned) join in
JUDGE CUFF’s opinion.

32
 SUPREME COURT OF NEW JERSEY

NO. A-52 SEPTEMBER TERM 2011

ON CERTIFICATION TO Appellate Division, Superior Court

TEN STARY DOM PARTNERSHIP,

Plaintiff-Appellant,

v.

T. BRENT MAURO and
THE BOROUGH OF BAY HEAD
PLANNING BOARD,

Defendants-Respondents.

DECIDED August 5, 2013
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff (temporarily assigned)
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

AFFIRMED AS
CHECKLIST
MODIFIED
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE HOENS X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7