RONALD C. MORGAN VS. WEST CAPE MAY COMBINED ZONING AND PLANNING BOARD (L-0067-20, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4573-19

RONALD C. MORGAN and
BARBARA G. MORGAN, h/w,

Plaintiffs-Appellants,

v.

WEST CAPE MAY COMBINED
ZONING AND PLANNING
BOARD,

Defendant-Respondent,

and

RONALD E. BAKER,

Defendant/Intervenor-
Respondent.
____________________________

Argued February 9, 2021 – Decided February 24, 2021

Before Judges Haas and Mawla.

On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-0067-20.

Ronald C. Morgan, appellant, argued the cause pro se.
 Richard M. King, Jr., argued the cause for respondent.

Andrew D. Catanese argued the cause for intervenor-
respondent (Monzo Catanese Hillegass, P.C., attorneys;
Andrew D. Catanese and Kathryn A. Monzo, on the
brief).

PER CURIAM

Plaintiffs Ronald and Barbara Morgan (collectively plaintiffs) appeal

from the Law Division's July 16, 2020 order dismissing their action in lieu of

prerogative writs against defendant West Cape May Combined Zoning and

Planning Board (the Board) and defendant-intervenor Ronald Baker (Baker).

We affirm.

Baker owns a 12,610 square foot lot in the Borough of West Cape May

(Borough). The property is located in the R-1 Urban Residential zoning district,

which is intended to be the densest residential district in the Borough. Although

lots in this district are only required to be 5000 square feet, most of the lots have

less square footage.

Baker filed an application with the Board seeking to subdivide his lot into

two lots. Lot A would be 7610 square feet and Lot B would be 5000 square feet.

As proposed, Lot B fully complied with all of the Borough's zoning

requirements. Lot A has an existing home on it and would require a variance

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for lot frontage because it would have slightly less than forty-seven feet of

frontage while fifty feet is required. 1 Lot A would also require, almost equally.

minor variances for lot width and other setbacks.

Plaintiffs live next to proposed Lot B. At the present time, Lot B is mostly

landscaped and provides approximately seventy-three feet of separation between

plaintiffs' property line and Baker's house on Lot A. A great deal of the

landscaping would be removed to make room on Lot B for a residence but, as

discussed below, Baker agreed to work with the Borough's arborist to preserve

as many mature trees as possible on the new lot.

Baker provided notice of his application to plaintiffs and other nearby

residents. He also gave notice to the Borough's Historic Preservation

Commission (HPC) and, later, the Board sent a copy of Baker's entire

application package to Norm Roach, the HPC's liaison with the Board, who also

served as the Borough's zoning officer. Roach attended both of the Board's

meetings concerning the application and voiced no opposition to Baker's

proposal.

The Board held two public hearings concerning Baker's application. At

the first hearing, Baker presented the testimony of Dante Guzzi, an engineer and

1
The total shortage was approximately forty inches.
A-4573-19
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professional planner. N.J.S.A. 40:55D-70 authorizes local zoning and planning

boards to grant variances from zoning ordinances. N.J.S.A. 40:55D -70(c)

defines two categories of variances: N.J.S.A. 40:55D-70(c)(1), known as the

"hardship variance," and N.J.S.A. 40:55D-70(c)(2), known as the "flexible or

bulk variance." Guzzi testified that the Board could consider and approve

Baker's application under both N.J.S.A. 40:55D-70(c)(1) and (c)(2).

By way of background, N.J.S.A. 40:55D-70(c)(1) states:

The board of adjustment shall have the power to:

(c) (1) Where: (a) by reason of exceptional narrowness,
shallowness or shape of a specific piece of property, or
(b) by reason of exceptional topographic conditions or
physical features uniquely affecting a specific piece of
property, or (c) by reason of an extraordinary and
exceptional situation uniquely affecting a specific piece
of property or the structures lawfully existing thereon,
the strict application of any regulation pursuant to
article 8 of this act would result in peculiar and
exceptional practical difficulties to, or exceptional and
undue hardship upon, the developer of such property,
grant, upon an application or an appeal relating to such
property, a variance from such strict application of such
regulation so as to relieve such difficulties or
hardship[.]

The above hardship is known as the "positive criteria" required for a (c)(1)

variance. See Jock v. Zoning Bd. of Adjustment of Twp. of Wall, 184 N.J. 562,

575 (2005); Nash v. Bd. of Adjustment of Morris Twp., 96 N.J. 97, 102 (1984).

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The applicant bears the burden of establishing that the particular conditions

create a hardship. Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 29 (2013).

Hardship, under (c)(1), "refers solely to the particular physical condition of the

property, not personal hardship to its owner, financial or otherwise." Jock, 184

N.J. at 590.

Applicants for a variance under (c)(1) must also satisfy the "negat ive

criteria":

No variance or other relief may be granted under the
terms of this section, including a variance or other relief
involving an inherently beneficial use, without a
showing that such variance or other relief can be
granted without substantial detriment to the public good
and will not substantially impair the intent and the
purpose of the zone plan and zoning ordinance.

[N.J.S.A. 40:55D-70(d); see also Nash, 96 N.J. at 102.]

A zoning board must balance these negative criteria against the positive criteria.

See Yahnel v. Bd. of Adjustment of Jamesburg, 79 N.J. Super. 509, 519 (App.

Div. 1963).

Guzzi testified that minor variances were needed on proposed Lot A

because there was a historic home, built in 1872, on the left side of the property.

That residence did not currently meet the side yard and front yard setback

requirements because it was built at an angle to the side property line. Because

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these deficiencies could not be cured without demolishing and rebuilding the

historic home, Guzzi opined that this was a clear hardship under N.J.S.A.

40:55D-70(c)(1) which supported the approval of the variances Baker sought in

his application. As discussed below, Guzzi testified there would be no negative

impact if the application were granted.

Guzzi also testified that a subdivision of the oversized property could be

approved under N.J.S.A. 40:55D-70(c)(2). Our Supreme Court succinctly

described the test for granting a (c)(2) variance as follows:

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

[Ten Stary Dom, 216 N.J. at 30.]

Satisfaction of the positive criteria requires "proof that the characteristics

of the property present an opportunity to put [it] more in conformity with the

development plans and advance the purposes of zoning." Ibid. The purposes of

zoning include promoting "public health [and] safety" and a "desirable visual

environment"; providing "adequate light, air and open space"; securing "safety

from fire, flood, [and] panic"; and providing "sufficient space in appropriate

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locations for a variety of . . . uses . . . in order to meet the needs of all New

Jersey citizens." N.J.S.A. 40:55D-2. As to the negative criteria, the applicant

must prove "that the variance would not result in substantial detriment to the

public good or substantially impair the purpose of the zone plan." Ten Stary

Dom, 216 N.J. at 30.

Significantly, under this "more flexible test[,]" an applicant for a (c)(2)

variance need not demonstrate hardship. Price v. Himeji, LLC, 214 N.J. 263,

297 (2013) (citing Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J.

41, 57 (1999)); Jacoby v. Zoning Bd. of Adjustment of Englewood Cliffs, 442

N.J. Super. 450, 470 (App. Div. 2015). In addition, "the magnitude of the

deviation from the . . . dimensional requirements of the zoning ordinance and

the impact on the zoning plan are often a matter of degree" and, as such, "a

board's consideration of a variance should recognize that fact." Ten Stary Dom,

216 N.J. at 32 (citing Chirichello v. Zoning Bd. of Adjustment, 78 N.J. 544, 561

(1979)).

As our Supreme Court explained over thirty years ago:

By definition . . . no [(c)(2)] variance should be granted
when merely the purposes of the owner will be
advanced. The grant of approval must actually benefit
the community in that it represents a better zoning
alternative for the property. The focus of a [(c)(2)]
case, then, will not be on the characteristics of the land

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 that, in light of current zoning requirements, create a
"hardship" on the owner warranting a relaxation of
standards, but on the characteristics of the land that
present an opportunity for improved zoning and
planning that will benefit the community.

[Kaufmann v. Planning Bd. for Twp. of Warren, 110
N.J. 551, 563 (1988) (emphasis omitted).]

In short, the granting of a "(c)(2) variance will stand if, after adequate proofs

are presented, the Board concludes that the 'harms, if any, are substantially

outweighed by the benefits.'" Jacoby, 442 N.J. Super. at 471 (quoting

Kaufmann, 110 N.J. at 565).

At the hearing, Guzzi testified that Baker's application satisfied both the

positive and negative criteria of N.J.S.A. 40:55D-70(c)(2). As it existed

currently, Baker's lot was more than twice the size of most of the other lots on

his block. Therefore, Baker's plan to subdivide the large lot into two conforming

lots was in keeping with the rest of the properties in the area. In addition, Guzzi

found that approximately 40% of the homes on Baker's street had less frontage

than required under the zoning ordinance. Thus, Baker's Lot A would not be out

of place in the neighborhood. Guzzi also believed that creating two smaller lots

would be more consistent with the density requirements of the zone.

As to the negative criteria, Guzzi stated that the benefits of subdivision

clearly outweighed any detriments. The deviation requested from the frontage

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requirement was only forty inches and the other bulk variances sought were due

to the pre-existing condition of the property.

Plaintiffs were the only residents who spoke in opposition to Baker's

application at the first hearing, 2 but all of their objections were promptly

addressed by him. Plaintiffs expressed a concern about the manner in which the

proposed new home on Lot B would adversely impact the trees that currently

existed on that part of the property. However, Baker agreed to coordinate the

placement of the new home with the Borough arborist in order to limit the impact

on the more mature trees on the property.

Plaintiffs also thought the new home on Lot B should be constructed

further away from their own residence than set forth in the application. Notably,

plaintiffs' home was a non-conforming structure located closer to his own lot

line than was permitted by the ordinance. In response to plaintiffs' concern,

Baker agreed to construct the new home on Lot B ten feet from plaintiff's

property line instead of the six feet required by the zoning ordinance.

Plaintiffs also argued that Baker's proposal did not include a plan for

parking spaces on Lot A. However, in the interim period between the first and

2
Plaintiffs did not present an expert of their own in opposition to Baker's
application.
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second public hearings, Baker amended his application to include sufficient on -

site parking spaces.

At the second public hearing, plaintiffs raised new issues. They alleged

for the first time that Baker or a prior owner had demolished a "historic

structure" on the property at some point in the past without the permission of

the HPC or the approval of the Borough's zoning officer. Because of this alleged

demolition, plaintiffs argued that the Board lacked jurisdiction to consider

Baker's application because it should have first been sent to the HPC for review.

In addition, plaintiffs asserted that Baker was required to rebuild the demolished

structure in its original condition before the HPC could entertain the matter.

The Board rejected plaintiffs' arguments on this point for several reasons.

First, there was no evidence of any "historic structure" on the property other

than the residence on Lot A. Indeed, a neighbor testified that the only other

"structure" that had been on the property was a ten-by-ten-foot cinder block shed

that was used to store gardening equipment. Roach also confirmed there were

no accessory buildings shown on any of the historical surveys of the property.

Second, N.J.S.A. 40:55D-110 plainly states that a planning board's failure to

refer a matter to the municipal HPC "shall not invalidate any hearing or

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proceeding." Therefore, the Board clearly had jurisdiction to consider Baker's

application.

Third, Baker and the Board gave notice of the application to the HPC and

it voiced no objections whatsoever to it, even though Roach, its liaison, attended

both of the public hearings. Finally, the Board further rectified the ma tter by

conditioning its approval of Baker's application on the HPC's subsequent review

of it.

After considering all of the evidence, the Board voted unanimously to

approve Baker's application. In the comprehensive Resolution it issued on

January 21, 2020, the Board found that the proposal should be approved under

both N.J.S.A. 40:55D-70(c)(1) and (c)(2). As to N.J.S.A. 40:55D-70(c)(1), the

Board found that "[t]he side yard and front yard of the existing structure are a

hardship given that the historic structure cannot be relocated away from those

lot lines."

The Board also found that the application met the positive and negative

criteria of both statutes. Because the intent of the zoning plan was to have

relatively small lots in the area, Baker's subdivision proposal would make his

oversized lot more consistent with the overall nature of the neighborhood. The

Board further determined that the benefits of the subdivision outweighed any

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possible negative impact, especially since Baker addressed each and every one

of plaintiffs' objections to the proposal.

As the Board explained:

The Board does not perceive a negative impact to the
neighborhood, nor a determent to the Zone Plan. In
fact, these lots are more consistent with the Master Plan
than the presently existing large lot (this is not to say
large lots are not favorable or do not have a positive
impact on the neighborhood, but rather the Board has
weighed the minor deviation on lot frontage against
requiring the owner to have this large lot in a
neighborhood consisting substantially of smaller lots
contemplated in the Master Plan). In total, the Board
believes the balance is in favor of [Baker] for the
reasons above stated, and although acknowledging and
respecting the concerns expressed by [plaintiffs], the
Board finds in favor of [Baker] on the issues above
stated.

Plaintiffs thereafter filed a complaint in the Law Division seeking to

reverse the Board's action. After thoroughly canvassing the record and

accurately applying the legal principles governing the action in lieu of

prerogative writs, the judge dismissed plaintiffs' complaint, holding that the

Board's findings and conclusions were supported by the evidence and were not

arbitrary, capricious, or unreasonable.

In his oral decision, the judge found that the Board had jurisdiction to

consider Baker's application, especially since the Board conditioned its approval

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on the HPC's review of the proposal. The judge also noted that the HPC notified

the Board prior to the issuance of the January 21, 2020 Resolution that it had no

objection to Baker's application. This appeal followed.

On appeal, plaintiffs raise the following contentions:

I. THE . . . BOARD LACKED JURISDICTION TO
REVIEW AND RULE UPON BAK[E]R'S
SUBDIVISION AND VARIANCE
APPLICATION DUE TO INADEQUATE AND
DEFICIENT PUBLIC HEARING NOTICE.

II. THE . . . BOARD'S APPROVAL OF BAKER'S
APPLICATION IS VOID AB IN[I]TIO AND
THE TRIAL COURT'S AFFIRMANCE OF THE
DECISION MUST BE REVERSED.

III. THE INCORRECT INFORMATION AND
MISREPRESENTATIONS IN BAKER'S
SUBDIVISION PLAN AND ZONING
SCHEDULE AFFIXED THERETO NULLIFY
THE . . . BOARD['S] APPROVAL.

IV. THE TRIAL COURT ERRED IN
DISREGARDING THE THRESHOLD
JURISDICTIONAL ISSUES AND
DETERMINING THAT THE . . . BOARD'S
SUBDIVISION AND THE GRANT OF
VARIANCES IS SUPPORTED BY
ADEQUATE PROOFS IN THE RECORD.

"[W]hen reviewing the decision of a trial court that has reviewed

municipal action, we are bound by the same standards as was the trial court."

Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552,

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562 (App. Div. 2004). Thus, our review of the Board's action is limited.

Bressman v. Gash, 131 N.J. 517, 529 (1993) (holding that appellate courts are

bound by the same scope of review as the Law Division and should defer to the

local land-use agency's broad discretion).

In reviewing a municipal zoning board's decision, courts must be mindful

that the Legislature vested these boards with the discretion to make decisions

that reflect the character and level of development within their municipality.

Booth v. Bd. of Adjustment of Rockaway Twp., 50 N.J. 302, 306 (1967). A

planning board's discretionary decisions carry a rebuttable presumption of

validity. Harvard Enters., Inc. v. Bd. of Adjustment of Madison, 56 N.J. 362,

368 (1970).

It is well-established that "a decision of a zoning board may be set aside

only when it is 'arbitrary, capricious or unreasonable.'" Cell S. of N.J., Inc. v.

Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002) (quoting

Medici v. BPR Co., 107 N.J. 1, 15 (1987)). "[P]ublic bodies, because of their

peculiar knowledge of local conditions, must be allowed wide latitude in their

delegated discretion." Jock, 184 N.J. at 597. Therefore, "[t]he proper scope of

judicial review is not to suggest a decision that may be better than the one made

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by the board, but to determine whether the board could reasonably have reached

its decision on the record." Ibid.

The burden is on the challenging party to overcome this highly deferential

standard of review. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of

Adjustment, 152 N.J. 309, 327 (1998). A court must not substitute its own

judgment for that of the local board unless there is a clear abuse of discretion.

See Cell S., 172 N.J. at 82. As we stated in CBS Outdoor, Inc. v. Borough of

Lebanon Planning Bd., 414 N.J. Super. 563, 577 (App. Div. 2010), "[e]ven were

we to harbor reservations as to the good judgment of a local land use agency's

decision, 'there can be no judicial declaration of invalidity in the absence of clear

abuse of discretion by the public agencies involved.'" (quoting Kramer v. Bd. of

Adjustment, Sea Girt, 45 N.J. 268, 296-97 (1965)).

Applying these standards, we discern no basis for disturbing the Board's

reasoned decision to approve Baker's application for the subdivision of his

property and the minor variances he sought as part of his proposal. The Board's

decision is clearly supported by sufficient credible evidence in the record and is

not arbitrary, capricious, or unreasonable. Plaintiffs' arguments are without

sufficient merit to warrant further discussion in a written opinion ( R. 2:11-

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3(e)(1)(E)), and we affirm substantially for the reasons set forth in the Board's

lengthy Resolution and the judge's cogent oral decision.

Affirmed.

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