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Jackson Township's Planning and Zoning Boards have their own professional traffic expert.

Lakewood Township's Planning and Zoning Boards do not.

Lakewood's Boards may want to consider hiring their own professional traffic expert, following a recent appellate court ruling that highlighted the benefits of such experts in defending land use decisions.

The case focused on a denied subdivision application in Little Silver, where the Board relied on their own planner's testimony to justify the denial. The court upheld the Board's decision, emphasizing their right to choose which expert testimony they find most credible. This case serves as a reminder for Lakewood, which currently lacks its own traffic expert, that having such expertise readily available could be helpful in defending their land use decisions from potential litigation.

In April 2019, Peter and Linda Franco submitted a subdivision application to the Little Silver Planning Board Board, which conducted a hearing on August 1, 2019.

The application sought lot frontage variance relief from the Board.

Individual Board members and interested members of the public expressed concern about a potential DEP-mandated public access on the property if the subdivision application was approved.

In response, the Board attorney forcefully cautioned the Board that the only matter which is before the Board is a zoning and planning issue and a variance. 

'I would instruct the Board, if they deny this application, it should not be based upon the fact where the public access is, if the Applicant has no control over it. So that should not be the . . . reason for denying the application. If they are going to deny the application, it must be on the planning aspects that have been testified to as to the positive and negative criteria," the attorney stated.

The Francos presented expert testimony from a licensed professional engineer and planner. He testified about the benefits of the application. The expert opined the "proposed subdivision brings this [property] more into compliance with the R-2 zoning. As it sits now, it is a very oversized lot. Even as the lot to the south, I said before, that still is three times the required lot area, but it's certainly more in conformance with the subdivision."

The Board heard competing expert testimony from their own planner. She testified the variance and subdivision would make plaintiffs' property non-conforming with the neighborhood. 

She stated: 

Additionally, just because the lot is larger than what's permitted in the zone doesn't mean that it's too big and needs to be subdivided. The lot area is a minimum, so anything larger than that, you know, is permitted in the zone district.

[Plaintiffs' expert] did argue that the lot area was larger than all of the neighboring properties, but every other property on that street seems to have a lot frontage that meets the zone requirements. If you look at the map, all of the lots are pretty conforming, rectangular-shaped and even the other cul-de-sac lots seem to be large, around 100 feet, if not larger than the 75 feet. 

So I don't think this is a better planning alternative.

On September 5, 2019, the Board adopted a five-page resolution memorializing its decision to deny plaintiffs' application. 

In relying on the expert opinion of its planner, the Board determined "the applicant failed to demonstrate positive criteria that would justify the subdivision at that location with a substantial reduction in street frontage and creating a flag lot."

The Francos filed a complaint in lieu of prerogative writs in New Jersey Superior Court in Monmouth County challenging the Board's decision.

In August 2022, Judge Jones affirmed the Board's denial, stating:

As reflected in the resolution adopted by the Board below on September 5, 2019, the Board determined, relying upon the testimony of the Board's expert planner, that plaintiffs had not met their burden of proving the positive and negative criteria applicable to a (c)(2) variance.

The Francos appealed the ruling, contending thatJudge Jones erred in rejecting their argument that the Board's denial of their variance application was arbitrary, capricious, and unreasonable. They maintained their application satisfied the criteria for a (c)(2) variance. They also contended the Board's denial "was actually rooted in incorrect and improper factors and considerations."

Appellate Division Judges Firko and Susswein were not persuaded and affirmed the Board's denial - mainly because the Board properly relied on their own Planner's expert testimony.

"The proper scope of judicial review is not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record." Jock v. Zoning Bd. of Adjustment of Twp. of Wall.

Furthermore, zoning boards, "'because of their peculiar knowledge of local conditions[,] must be allowed wide latitude in the exercise of delegated discretion.'" Price v. Himeji, LLC, quoting Kramer v. Bd. of Adjustment.

With respect to positive criteria, plaintiffs argue (c)(2) variance relief should have been granted to address their "very oversized" lot. But the Board accredited the contrary expert testimony of its planner. The Board's resolution states: "[t]he Board having considered the testimony of [its planner], a licensed planner, and [plaintiffs' expert], a licensed engineer with planning credentials and finds that [its planner's] testimony was more credible."

As Judge Jones aptly noted, "the Board is free to accept or reject the opinions of experts who testify before the Board." See Allen v. Hopewell Twp. Zoning Bd. of Adjustment, "It is within the province of the board of adjustment to accept or reject the opinions of . . . the expert planner. . . ." Therefore, Judge Jones concluded, "the Board was free to accept the testimony of its planner over the testimony of plaintiffs' expert planner." We agree with Judge Jones that the Board's decision was grounded in evidence in the record, and, therefore, was not arbitrary, capricious and unreasonable.

We are likewise unpersuaded by plaintiffs' argument that their application satisfied the "negative" criteria required for variance relief. Plaintiffs maintain the "trivial" variance "would result in no 'substantial detriment' to the public good, nor 'substantial impairment' of the intent and purpose of the zone plan and zoning ordinance." Plaintiffs also contend "that the Board's Resolution fails to make any findings whatsoever regarding the 'negative' criteria."

We are satisfied the Board's findings with respect to negative criteria are couched in its decision to accept the testimony of the Board's planner over plaintiffs' expert's testimony.

Plaintiffs' expert testified: 

In terms of the negative criteria, the [land]…especially on the site for the new home on Lot B, has had a home there since 1870…It's not new or changed. In fact, the home was there physically until sometime during 2016, and was moved to its current location to the south. So a home, on this Lot B, is not something new or really different. In fact,…for…quite a long period of time that home has been there. 

The subdivision pattern [is] very much in keeping with the neighborhood, so I don't think there is a detriment in terms of the character of the neighborhood. So it's my opinion that the variance can be granted without any substantial detriment to the public good and it can be granted without…substantially impairing the intent and purposes of the Zone Plan in the Ordinance. 

In contrast, the Board's planner testified:

[Plaintiffs' expert] also stated that the application…would not negatively impact the zone district and the purposes of the M[LUL] I slightly disagree, respectfully. He stated the purpose to promote the establishment of appropriate population densities in concentrations, however, that purpose goes on to say that it will contribute to the [well-being] of persons, neighborhoods, communities and regions in the preservation of the environment. I think that this lot area, creating the frontage variance is not preserving the natural environment around it and is also not contributing to the [well-being] of the neighbors.

We reiterate - as Judge Jones aptly acknowledged - a zoning board has the choice of accepting or rejecting conflicting testimony. See Allen, 227 N.J. Super. at 581. When that decision is reasonably made, it is conclusive on appeal.

In this instance, the negative impact of plaintiffs' proposal is clearly explained. The resolution notes, "proposed Lot 8.08A, which will retain the existing home, will have frontage of 29.93 feet or a little over 1/3 the requirement." Although the [current] lot is oversized, it is waterfront and "25,000 square feet is a minimum for the zone and lots on the water often greatly exceed the minimum required." Additionally, "flag lots are discouraged and prohibited in most zoning ordinances." Thus, the record clearly shows the Board considered and rejected plaintiffs' "negative criteria" contention. Relying on their planner's expert testimony, the Board determined plaintiffs failed to meet their burden of proving the positive and negative criteria applicable to a (c)(2) variance.

"We therefore conclude the Board's decision was not based on "improper considerations" as plaintiffs contend, but rather was based on sufficient credible evidence," the Appellate panel concluded.

The winning attorney is Mark A. Leckstein Esq. of Leckstein & Leckstein, LLC.

As previously reported here on FAA News, the Lakewood Zoning Board lost a case in court. The judge in that case highlighted the fact that the Board did not have professional testimony in competition to the developers testimony as a reason to overturn the Board's denial.

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