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N.J.S.A. 40:55D-70c(2). Plaintiff sought to subdivide an 80-foot by 190-foot lot, on which stands a two-family
structure, into a conforming single-family lot and a two-family nonconforming lot. After a hearing conducted on
May 3, 2006, the Board denied the application. Plaintiff appealed the Board's determination to the Law Division by
an action in lieu of prerogative writs and the Law Division affirmed. For the following reasons, we affirm as well. ">
The status of this decision is unpublished
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(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5458-06T35458-06T3
THE ESTATE OF FRED GIORDANO,
LOIS CURRIE, EXECUTRIX,
Plaintiff-Appellant,
v.
PLANNING BOARD OF THE TOWN OF
KEARNY,
Defendant-Respondent.
Submitted May 12, 2008 — Decided
Before Judges Graves and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket
No. L-3667-06.
Gaccione, Pomaco & Malanga, attorneys for appellant (Robert J. Pansulla, on the brief).
Gillespie, Gillespie & Jablonski, attorneys for respondent (Frederick L. Gillespie, of
counsel and on the brief).
PER CURIAM
Plaintiff, the estate of Fred Giordano, applied to defendant Planning Board of the town of Kearny (the Board) for
approval of a bulk variance pursuant to 110 N.J. 551, 563 (1988). During the hearing, the Board expressed concerns
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a5458-06.opn.html
about the increased density in use, i.e., three families on the same square footage where only two families currently
reside, at the cost of the creation of a non-conforming lot, where a conforming lot currently exists. "[N]o c(2)
variance should be granted when merely the purposes of the owner will be advanced." Ibid.
The Law Division judge concluded that no one but the owner of the lands would benefit from subdivision
approval. As he said, it was "incumbent" on the applicant to establish that the positive criteria outweigh the
negative. As he further noted, plaintiff did not do so: "the applicant's proofs consisted mainly of vague, general
references to conforming the subject lot to the other lots in the area, and that the proposal meets the purposes of
good planning." He also noted that plaintiff presented no actual evidence in support of the proposition that
"approval of the proposed subdivision and the necessary C2 width variance would be a more desirable alternative
than tearing down the existing two-family structure, and building new structures on two conforming lots."
In other words, plaintiff simply failed to establish that the benefit of the deviation would substantially
outweigh any detriment, and that the variance would not substantially impair the intent and purpose of the zone
plan and the Municipal Land Use Law. See Green Meadows at Montville, L.L.C. v. Planning Bd. of the Twp. of
Montville, 329 N.J. Super. 12, 22 (App. Div. 2000); 172 N.J. 75, 81 (2002); Spruce Manor Enters. v. Borough of
Bellmawr, 315 N.J. Super. 286, 293 (Law Div. 1998). We recognize that such municipal decisions are not to be
disturbed on appeal as long as they are "supported by the record and [are] not so arbitrary, capricious, or
unreasonable as to amount to an abuse of discretion." Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adj., 152 N.J. 309,
327 (1998).
In summarizing the Board's findings, the Law Division judge said:
[N]umber one, the granting of the application for a major subdivision in this case would
not advance the objectives of the town subdivision ordinance. Number two, the
granting of the variance in this case would not advance the objectives of the town
zoning ordinance. And number three, the variance sought is not preexisting
nonconforming. And number four, the applicant has not proven the necessary criteria
for the granting of a C2 variance. And number five, the variance requested in this
application cannot be granted without substantial detriment to the public good. And
number six, the granting of [the] major subdivision and variance requested in the
subject application would substantially impair the intent and purpose of the master
plan of the Town of Kearny.
Additionally, the judge took into account the Board's stated concern as to density and downsizing, "which the town
faces as a rapidly growing municipality." For all these reasons, the court determined that denial of the application
was reasonable.
We find the Law Division judge's conclusion to be supported by substantial credible evidence in the record. The
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Board's decision to deny the application was not arbitrary, capricious, or unreasonable. Judicial review in this
context is narrow in scope. Neither the Law Division judge nor this court may substitute its judgment for that of the
Board. Cicchino v. Twp. of Berkeley Heights Plan. Bd., 237 N.J. Super. 175, 183 (App. Div. 1989). Accordingly, we
affirm.
Affirmed.
In its resolution, the Board incorrectly listed the length of the lot as 150 feet.
(continued)
(continued)
6
A-5458-06T3
July 11, 2008
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