Marc and Deborah Shams v. Planning Board of the Village of Loch Arbour

NOT FOR PUBLICATION WITHOUT THE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-3485-21

MARC and DEBORAH SHAMS,
husband and wife,

Plaintiffs-Appellants,

v.

PLANNING BOARD OF THE
VILLAGE OF LOCH ARBOUR
and VILLAGE OF LOCH
ARBOUR,

Defendants-Respondents.
____________________________

Argued October 31, 2023 – Decided November 28, 2023

Before Judges Rose and Perez Friscia.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-2478-20.

Jessica L. Sweet argued the cause for appellants (Sweet
& Bennett, LLC, attorneys; Jessica L. Sweet, of counsel
and on the briefs).

Lance N. Olitt argued the cause for respondents (Kluger
Healey, LLC, attorneys; Lance N. Olitt, on the brief).
PER CURIAM

Plaintiffs Marc and Deborah Shams appeal from a June 1, 2022 final

judgment, which dismissed their complaint in lieu of prerogative writs and

entered judgment in favor of defendants, the Village of Loch Arbour (Village)

and the Planning Board of the Village of Loch Arbour (Board). Plaintiffs

challenge the trial judge's denial of an automatic approval of a Certificate of

Appropriateness (COA) and finding that the Board had the broad authority to

deny their application requiring bulk variances. Following our review of the

arguments presented on appeal, the record, and the applicable law, we affirm.

I.

In December 2016, plaintiffs, husband and wife, purchased a residential

lot on Euclid Avenue in Loch Arbour. In January 2018, plaintiffs filed an

application with the Village zoning officer for a permit to remove an existing

structure and to construct a new, single-family home, with a shed and in-ground

pool. As plaintiffs' application had required multiple variances, the matter was

referred to the Board. The Board heard plaintiffs' application over three days,

between April and July 2018. Plaintiffs sought several variances, including a

variance to build a third half-story encompassing "proposed habitable space for

bedroom [numbers six, seven, eight] and a bathroom with walk[-]up stairs."

During the hearing process, plaintiffs revised their plans multiple times but

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thereafter stipulated to plans which required no variances. After the Board

approved the residential construction plans, plaintiffs requested COA approval

from the Board, in its capacity acting as the Historic Preservation Commission

(Commission), pursuant to N.J.S.A. 40:55D-25(d)1 and the Village Historical

Preservation Ordinance 2017-424.2

On August 15, 2018, the Board, acting as the Commission, approved

plaintiffs' application for a COA, with conditions. On August 31, the Board and

Commission separately adopted resolutions on the application and COA

issuance. The Board memorialized its findings regarding plaintiffs' variance

application in a fourteen-page resolution, which described plaintiffs'

stipulations, the final approved plans, and multiple approval conditions.

Pertinent to this appeal, those conditions included that the COA was "contingent

upon restricting use of the third floor for storage and utiliz[ation] only with

1
Under N.J.S.A. 40:55D-25(d), "[i]n a municipality having a population of
2,500 or less, the planning board, if so provided by ordinance, shall exercise, to
the same extent and subject to the same restrictions, all of the powers of a []
historic preservation commission." The responsibilities of a historic
preservation commission include providing written reports regarding
applications of zoning ordinance provisions concerning historic preservation.
N.J.S.A. 40:55D-109. Ordinarily, a planning board must refer every application
for development in a historic zoning district to the historic preservation
commission. N.J.S.A. 40:55D-110.
2
The Village provided for the creation of a historic preservation commission
as permitted by N.J.S.A. 40:55D-107.
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access by way of pull[-]down stairs to the third floor." The Commission, in its

companion resolution, considered plaintiffs' "constructi[on] of a two-story

single[-]family dwelling," and included that it was "of great significance to the

Board's approval of the structure as proposed" that plaintiffs be in "compliance

with all findings, representation and conclusions as set forth in the companion

resolution." On September 12, plaintiffs received a construction permit.

Coterminous to the approvals, the Village adopted multiple ordinances

governing residential construction. On July 9, the Village adopted Ordinance

2018-443, which amended the minimum side yard setback to "greater than [five]

feet per side or [ten percent] of the lot width per side." Thereafter, on November

20, the Village adopted Ordinance 2018-446, which amended the means for

measuring building height as:

the vertical distance measured to the highest point of
the roof from the mean level of the curb in front of the
center of the building. No building shall exceed [thirty-
five] feet in height. No building shall contain more than
two[-]and[-]one-half stories. Flat roofs shall be
prohibited, except as an architectural feature.

[(Emphasis added).]

The Village also adopted Ordinance 2018-447, which permitted buildings

to have two-and-a-half stories, and defined "Half Story" as:

the space above the first or second story which shall
have a pitched roof to begin at the ceiling joists line of

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 the story below and which pitch shall have a minimum
slope of [thirty percent] . . . . Such space, if finished,
shall have a minimum vertical wall of five . . . feet in a
finished area including deck and balcony space not to
exceed fifty . . . percent of the second story living space
in the case of a two[-]and[-]one-half . . . story structure.

The Village additionally adopted Ordinance 2018-450 (the Historic Preservation

Ordinance), which mirrored and replaced Ordinance 2017-424 and defined the

historic area.

Following the adoption of the ordinances, on December 7, plaintiffs filed

a new zoning permit application, allegedly only seeking to "add [two] dormers"

to the "east side and west side" of their house. The attached architectural plans,

dated August 26, indicated "proposed [two-]story house" and only depicted an

"open attic." Four days later, the Village zoning officer denied the application,

providing that "no more than [two] stories" were permitted. Thereafter,

plaintiffs' architect corresponded with the zoning officer and provided further

documentation.

On January 3, 2019, after reviewing the documentation with the Board's

counsel, the zoning officer reversed the denial and granted the request for "two

dormers." The zoning officer provided that plaintiffs were required to comply

with the 2018 resolutions and, as such, were "specifically limited to the size and

configuration of the non-habitable attic" shown in the approved plans. Board

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counsel confirmed by letter dated January 14 that plaintiffs' dormer application

related back to the 2018 plan and COA approvals; therefore, it would be heard

"under the [COA] Ordinance 2017-424 pursuant to the Time of Application

Rule."

Several days later, plaintiffs again modified their project. On January 22,

plaintiffs' architect submitted an application for a COA. The application form

requested a designation of the construction alteration sought, including

designating a "Major Alteration" defined as a "change or modification of major

architectural elements to a building . . . roof including, but not limited to, . . .

dormers." Plaintiffs failed to designate either a "Minor Alteration" or a "Major

Alteration," but their architect handwrote in the description "additional attic

storage space" and "amended design request of previously approved plans—

revised design of attic area only per attached drawings and prior

correspondence." The application was certified as true. Plaintiffs provided

additional new architectural plans with different dates, including an attic floor

plan stating, "uninhabitable attic."

Plaintiffs continued construction without approval and built a non-

conforming structure, which resulted in a construction official's stop-work order

on March 14. The construction official permitted plaintiffs to continue

construction "all at [their] own risk."

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 Thereafter, on April 7, plaintiffs published notice of their amended COA

application hearing scheduled for April 17. Plaintiffs' notice only stated their

application "add[ed] two . . . dormers east side and west side to the previously

approved resolution adopted on August 15, 2018." The Commission heard the

matter approximately eighty-six days after plaintiffs filed the application, and

ten days from the notice. Mr. Shams appeared, self-represented, with his

architect. At the hearing, Mr. Shams conceded the proposed "dormers" included

an expansion of additional living space, rather than "attic storage space" as

stated in the revised January 2019 application. The Commission determined,

because the space proposed was a third floor rather than two dormers, and the

application indicated an intention for attic storage space rather than living space,

the notice published was clearly misrepresentative.

After the hearing, the Commission referred the application to the Board

engineer for review because questions existed regarding the dormers, habitable

third floor, and roof line. The Board granted plaintiffs an extension of the

hearing. Because the Board engineer had not reviewed and reported on the

application by the next hearing date, the Board again extended the application.

On August 23, plaintiffs' newly retained counsel filed another amended

application with the Board and the Board's engineer, including revised

architectural plans dated August 1. Counsel submitted fourteen sets of plans,

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which "clearly depict[ed] the changes between the proposal approved by [the]

Planning Board Resolution [on] July 16, 2018, as compared to the as-

built/proposed development."

The newly submitted plans distinguished between the significantly

different as-built construction and the previously approved attic floor area and

total square footage. The plans also included a habitable third floor half-story.

Under the new height ordinance, plaintiffs' proposed two-and-one-half-story

building was nonconforming at 36.75 feet. Accordingly, variance approval was

required for the as-built half floor. Under the new setback ordinance, plaintiffs'

revisions also required a setback variance for a Bilco door.

On October 25, plaintiffs published notice of their new application before

"the Planning Board of the Village of Loch Arbour." Plaintiffs' notice provided

the required variances which were to be heard by the Board and stated in

pertinent part:

The home, accessory structures and site
improvements were not constructed in accordance with
the aforesaid approval and without the benefit of
amended approvals. Accordingly, through this instant
application, [a]pplicant seeks an amended [COA] in
order to legalize the changes made during construction
as well as new, proposed changes. The changes already
made and proposed to the home include:
relocation/addition/deletion of windows and doors;
alteration of porch and front elevation design; . . .
expanded third floor with stair access for proposed

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 habitable space; extension of gable roof line to the east
and the west to accommodate the expanded third floor
living space; and, alteration of window and door size,
configuration and designs.

In addition to the [COA], [a]pplicant also seeks
bulk variance relief pursuant to [N.J.S.A.] 40:55D-
70[(c)] as follows: building height of 38.75 feet,
whereas a maximum of 35 feet is permitted and 36.75
feet exists; and side yard setback of 5.33 feet to the
[B]ilco doors and 9.25 feet to the roof overhang exists.

Applicant also expressly make[s] application for
any exceptions, interpretations, waivers, variances and
other approvals as reflected on the filed plans as same
may be further amended from time to time without
further notice and as may be determined to be necessary
by the Board or its professionals during the review and
processing of the application.

[(Emphasis added).]

On November 4, Mr. Shams, plaintiffs' counsel, and plaintiffs' architect

appeared before the Board. The Board Chairman opened the hearing and

clarified, "I understand this is an entirely new application, even though it was

previously submitted to the Board on one other occasion." (Emphasis added).

Plaintiffs' counsel confirmed the hearing was in consideration of a new

application. Plaintiffs' counsel also confirmed variances were requested for "the

side yard setback," as "it relate[d] to the [B]ilco door," and the height of the

house from the Board, in addition to a new COA from the Commission.

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 During the hearing, plaintiffs again introduced revised architectural plans,

which were dated October 24, 2019. The Board raised numerous concerns with

the proposed plans, including the changed window structure, the new location

of a previously approved Bilco door, the new habitable third floor, the non-

conforming height, and the roof structure alteration. In response, plaintiffs'

counsel requested an adjournment to review the concerns raised by the Board,

which the Board approved.

Following multiple adjournments for various reasons, including the

COVID-19 pandemic, the Board arranged for a continued remote hearing on

April 29, 2020. The Board heard testimony from plaintiffs' architect and the

Board engineer. At the hearing, plaintiffs altered their argument and stated: "It's

the applicant's position that, one, the [COA] standards have been met; two, the

variance standards were met at the last hearing through the testimony of [the

architect]; and three, in the alternative, a variance isn't necessary because they

were grandfathered in by the zoning permit."

The Board voted on the height and setback variances requested and denied

the variances in a four-to-two vote. Plaintiffs then withdrew their setback

variance and requested a vote anew, but the Board still denied the height

variance. At plaintiffs' counsel's request, for completeness, the Board, acting as

the Commission, also unanimously voted to deny plaintiffs' application for a

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COA. On June 17, the Board memorialized by resolution its denial of plaintiffs'

variance requests, including findings from the November 4, 2019 and April 29,

2020 hearings, and the Commission's resolution memorialized the COA denial.

On August 7, plaintiffs filed an eight-count complaint in lieu of

prerogative writs seeking to reverse and set aside the denials of plaintiffs'

variances and COA, and to rescind the stop-work order. In May 2021, the judge

conducted a bench trial and thereafter issued an oral decision. On June 1, 2022,

the judge entered final judgment in the Board's favor, affirming the resolutions,

denying plaintiffs' applications, and dismissing plaintiffs' complaint. This

appeal followed.

Plaintiffs argue on appeal that the judge erroneously: failed to find

automatic approval of the amended COA was required after forty-five days

under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -112;

misapplied the recognized judicial exceptions to the automatic approval

doctrine; and found the Board was not restricted from "broadly review[ing] and

overruling the zoning permit approval once" the zoning officer referred

plaintiffs' application to the Commission for approval in "compliance with the

historic preservation ordinance." Plaintiffs do not appeal denial of the variances.

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 II.

"[W]e are bound by the same standards as was the trial court" when

reviewing the validity of a local board's decisions. Jacoby v. Zoning Bd. of

Adjustment of Englewood Cliffs, 442 N.J. Super. 450, 462 (App. Div. 2015)

(quoting Fallone Props., LLC v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552,

562 (App. Div. 2004)). Like the trial court, our review of a planning board's

decision is limited. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of

Adjustment, 152 N.J. 309, 327 (1998). 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). We "give deference to the actions and

factual findings of local boards and may not disturb such findings unless they

were arbitrary, capricious, or unreasonable." Jacoby, 442 N.J. Super. at 462.

"A board acts arbitrarily, capriciously, or unreasonably if its findings of

fact in support of [its decision] are not supported by the record, or if it usurps

power reserved to the municipal governing body or another duly authorized

municipal official." Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 33 (2013).

Consequently, "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 of N. Caldwell, 160 N.J. 41, 58-59 (1999). Planning

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boards are provided "wide latitude in the exercise of the delegated discretion"

under MLUL due to their particular "knowledge of local conditions." Burbridge

v. Mine Hill Twp., 117 N.J. 376, 385 (1990) (quoting Medici v. BPR Co., 107

N.J. 1, 23 (1987)).

It is well recognized local board members are more "familiar with their

communities' characteristics and interests" and are better suited to decide

concerns on local zoning regulations. Pullen v. Township of S. Plainfield Plan.

Bd., 291 N.J. Super. 1, 6 (App. Div. 1996). Determinations on questions of law

in land use matters are reviewed de novo. Bubis v. Kassin, 184 N.J. 612, 627

(2005).

III.

Plaintiffs' argument that the judge erroneously failed to apply the required

automatic approval to their COA application is without merit. Plaintiffs

accurately cite that the Historic Preservation Ordinance incorporates by

reference the MLUL provision N.J.S.A. 40:55D-111, which provides that a

historic preservation commission "shall report to the administrative officer

within [forty-five] days of . . . referral of the application" and that the failure to

report "shall be deemed . . . in favor of issuance of the permit." (Emphasis

added). However, plaintiffs may not avail of an automatic approval because

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they failed to submit a completed COA application for the Commission's

consideration.

We concur with the judge's findings that plaintiffs' December 2018 and

January 2019 applications misrepresented the building alterations for approval,

and plaintiffs' actions created the confusion and delay. It is undisputed the

zoning officer rejected the December 2018 application, then granted the

application only after further documentation was submitted, and ultimately

approved it conditioned on a "non-habitable attic that is shown on the approved

plans." The judge correctly found plaintiffs' December 2018 application

"incorrectly presented" only two dormers for a zoning permit determination.

Thereafter, the January 2019 amended COA application, which plaintiffs

seek automatic approval for, was also deficient. Plaintiffs' amended application

for a COA approval was submitted days after the December 2018 application

was approved with specific conditions. Plaintiffs' architect certified the

application only requested "additional attic storage." Notably, the construction

official's stop-work order noticed plaintiffs, before they published the April 7

notice of their COA application, that "Board approval must be received for third

floor addition." As the judge correctly found, the record demonstrates neither

application was complete and plaintiffs' inaccurate, misrepresentative plans

confounded any completed application determination by the zoning officer,

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Board, and Commission. Because plaintiffs' applications were not complete, the

forty-five-day automatic approval was not triggered.

Plaintiffs misapprehend that their mischaracterized January 2019 COA

application foreclosed the Board's approval of necessary variances. An

application requiring variance approval for development shall first be filed

before the appropriate board. N.J.S.A. 40:55D-25 and -60. We discern no

reason to disturb the judge's decision that the Board acted reasonably in its

consideration of plaintiffs' application.

The MLUL provides that "[t]he planning board and board of adjustment

shall refer . . . every application for development submitted to either board for

development in historic zoning districts" to the Commission and the "referral

shall be made when the application for development is deemed complete or is

scheduled for a hearing." N.J.S.A. 40:55D-110. Only after an application for

required variances is complete or scheduled does the Board refer the COA

application to the Commission. It is clear statutory provisions "must be viewed

not in isolation but 'in relation to other constituent parts so that a sensible

meaning may be given to the whole of the legislative scheme.'" Tumpson v.

Farina, 218 N.J. 450, 467 (2014) (quoting Wilson by Manzano v. City of Jersey

City, 209 N.J. 558, 572 (2012)).

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 Indeed, plaintiffs proceeded with their new application requesting

variances in August 2019, and conceded that their January 2019 application was

incomplete. Plaintiffs, in their October 25, 2019 notice of hearing, stated "[i]n

addition to the [COA], [a]pplicant also seeks bulk variance relief." (Emphasis

added). Plaintiffs' counsel admitted at the November 2019 hearing that "the side

yard setback, as it relate[d] to the [B]ilco door," and the height of the house both

required variances. We observe "when a developer, with the consent of the

planning body, withdraws an application or unilaterally amends it to such an

extent that effectively it is a new application, the board need not act within the

original time constraints." Amerada Hess Corp. v. Burlington Cnty. Plan. Bd.,

195 N.J. 616, 640 (2008). Additionally, under the MLUL, an extension of a

statutory deadline may be effective where it is agreed upon by the parties. Id.

at 641. The MLUL authorized the Board to review the application once it was

determined variances were required. The Commission, after the Board's review,

was then accordingly enabled to "report" its decision on the issuance of a COA.

Plaintiffs' argument that the judge misapplied the recognized automatic

approval exceptions is also without merit. Our Supreme Court has "recognized

a narrow exception for cases in which a planning board's violation of the

statutory time frame was inadvertent or unintentional . . . [and] held that

automatic approval would not advance the legislative goals underlying the

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statute." Id. at 619. An exception exists where delay is caused by "a reasonable

misapprehension regarding whether there was a complete application pending

before the board." Id. at 635. Here, if there was any "misapprehension" by the

Board it was certainly "reasonable" as caused by plaintiffs' submission of a

deficient COA application. We concur with the judge that if a mistake occurred

in not providing a timely COA "report," the violation of the prescribed time was

inadvertent and excusable.

Further, even if plaintiffs' application were complete, we reject plaintiffs'

contention that an application that misrepresents construction alterations is

entitled to automatic approval for any modification embedded in attached plans.

Plaintiffs' argument is unsupported.

Lastly, we find no merit in plaintiffs' argument that the judge erred in

finding the Board had broad authority to review plaintiffs' home construction.

Although plaintiffs filed amended applications under the time of application

rule, alleging modifications to the 2018 approvals, the judge correctly found the

amendments were improvidently submitted as "the actual application before the

Board in November and April involved different plans regarding specific subject

matter of those [new] ordinances," and that the prior 2017 ordinances did not

apply to the "revised setback and roofline window plans that were eventually

constructed."

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 We conclude, as did the trial judge, that both the MLUL and the local

ordinances authorized the Board to review plaintiffs' application which required

variances. As the judge correctly observed, the delay here was the direct result

of plaintiffs' "ever-changing plans [which] were somewhere between cavalier

and flagrant disregard of the rule of law set forth by . . . the MLUL." Having

determined the Board correctly denied variance relief, the judge found the COA

was "moot because it was contingent upon the application." We discern no

reason to disturb the judge's well-reasoned decision.

Affirmed.

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