LAND USE AND PLANNING

Ten Stary Dom Partnership v. Mauro

New Jersey Law Journal

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Ten Stary Dom Partnership v. Mauro, A-52 September Term 2011; Supreme Court; opinion by Cuff, P.J.A.D., temporarily assigned; decided August 5, 2013. On certification to the Appellate Division. [Sat below: Judges Wefing, Baxter and Koblitz in the Appellate Division.] DDS No. 26-1-0892 [35 pp.]

In this appeal, arising in the context of a 10-year attempt by the owner of a residential lot to build a house, the court considers defendant's entitlement to a bulk variance from a frontage zoning requirement. The court also addresses the appropriateness of the trial court affirming an order denying a variance without prejudice.

Defendant T. Brent Mauro owns property in 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 50 feet. Mauro's property conforms to all other zoning requirements. Mauro filed an application with the Bay Head Planning Board for a variance.

At the board hearings, Mauro testified that he had attempted to acquire adjacent land to conform to the frontage requirement. A licensed professional engineer and planner testified that a variance denial would make the lot virtually useless and that drainage 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 fire chief and his assistant testified that the fire company could adequately respond to an emergency at the property.

In a 5-4 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, owner of a neighboring property, challenged the board's action. Because a voting board member had missed relevant meetings, the trial court remanded the matter and retained jurisdiction.

In a 5-4 vote, a reconstituted board denied the frontage variance. 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. Primarily citing the 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.

The Appellate Division reversed. It did not reach the propriety of the trial court's denial without prejudice. The court granted Ten Stary Dom's petition for certification.

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.

An application for a (c)(1) or (c)(2) bulk variance often implicates purposes of the Municipal Land Use Law (MLUL), 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 must be directed to the specific zoning purposes actually implicated by the request.

Here, the board's findings lack support 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 10-foot frontage rather than a 50-foot frontage would constitute a substantial detriment to the zoning plan.

The board afforded undue weight to the drainage factor. The property conforms to the zoning plan's single-family residential use. The board delved into concerns that can be adequately addressed 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.

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. By permitting the applicant to return to the board with the same application, the 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.

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