                        NOT FOR PUBLICATION WITHOUT THE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-1394-16T3

BRIAN KIMMINS and PATRICIA
KIMMINS, his wife, JOSEPH
NATOLI, and JANICE NATOLI,
his wife, STEVEN HEGNA and
METTE HEGNA, his wife,
CHRISTIAN SIANO and CARRIE
SIANO, his wife, DANIEL
KEATING and DIANE KEATING,
his wife, EDWARD BREHM and
JODI BREHM, his wife,
CHRISTOPHER KAISAND and
KELLY KAISAND, his wife,
and PETER PETRACCO and MAY
PETRACCO, his wife,

        Plaintiffs-Respondents,

v.

BOROUGH OF BRIELLE PLANNING
BOARD,

        Defendant,

and


MICHAEL and LORI CENTRELLA,

     Defendants-Appellants.
________________________________

              Argued September 12, 2017 – Decided November 15, 2017

              Before Judges Hoffman and Mayer.
           On appeal from Superior Court of New Jersey,
           Law Division, Monmouth County, Docket No. L-
           2949-15.

           C. Keith Henderson argued the cause for
           appellants (C. Keith Anderson & Associates,
           attorneys; Mr. Henderson, on the briefs).

           Edward F. Liston,          Jr.        argued   the    cause
           respondents.

PER CURIAM

     Defendants Michael and Lori Centrella appeal from the October

28, 2016 Law Division order vacating the Borough of Brielle

Planning   Board    (Board)    resolution,        which   granted     defendants'

application to divide their existing single lot into three lots,

along   with   ancillary      variance      relief    from      municipal    zoning

ordinances.    We affirm.

                                            I.

     The following facts are relevant to our review.                  Defendants

purchased the subject property in 2001.              Slightly larger than one

acre at 46,618 square feet, and 185.45 feet wide, the cork-shaped

property lies at the corner of two roads – one to the west and one

to the south, and adjacent to the Manasquan River to the east.

When defendants purchased the property, it contained a "main

dwelling," "a guest cottage," "a two-car garage," and "a large

swimming   pool."     Within     a   year    of    the    purchase,    defendants

demolished the main dwelling and swimming pool. In 2012, Hurricane

                                       2                                    A-1394-16T3
Sandy severely damaged the guest cottage, causing defendants to

move out of the cottage for almost one year.

       At the time of the Board's proceedings, defendants lived in

the guest cottage, which sits 2.57 feet from the northern property

line.       Upon finalization of their subdivision plan, defendants

intended to build a house on the middle lot and tear down the

guest cottage.

       In November 2014, defendants applied to the Board for approval

to     divide    their     property     into    three   lots;    notably,     their

application       required     two     variances.        The    Board    addressed

defendants' application in a hearing that extended over three

Board meetings.

       On    March   10,    2015,     the   first   hearing     date,   defendants

presented testimony from two expert witnesses.                  The first expert,

a professional engineer and planner, testified the property needed

a "pre-existing nonconforming" variance for the "guest cottage"

because it sits 2.57 feet from the northern property line.                         He

also said defendants' plan required a variance because the southern

lot would measure only 34.23 feet wide, but the ordinance required

a minimum sixty-foot width; the other two lots would conform,

measuring 75.14 and 75.76 feet wide.                He further noted the three

lots     would    nevertheless        satisfy    the    ordinance's     total-area

requirements.

                                            3                               A-1394-16T3
    Defendants' second expert, a licensed professional planner,

addressed defendants' application for a variance under N.J.S.A.

40:55D-70(c)(1), which authorizes a board of adjustment to grant

a variance for "exceptional and undue hardship."           He explained

defendants' plan would create

           three lots which fully conform with the
           exception of the fact that there is a
           technical lot width variance on the largest
           lot, the corner lot, . . . where if . . . you
           measure the lot width at the setback[,] it's
           . . . a little over 34 feet, and the ordinance
           requires 60 [feet]. But then when you look
           at the rest of the parcel, clearly, that
           parcel is substantially large.    It's a very
           large building envelope on it.        So it's
           clearly a lot that would be envisioned by your
           ordinance to be a buildable building lot.

He added, "[I]t's much more consistent with the character of the

zone than . . . what could be done with a fully conforming

subdivision."   He therefore concluded, "[T]here is a practical and

undue hardship that is associated with the configuration of the

lot that inhibits the extent to which [defendants] can use the

property."

    The expert then discussed the application for a variance

under   N.J.S.A.   40:55D-70(c)(2),   which   authorizes    granting    a

variance when "the benefits of the deviation would substantially

outweigh any detriment."     He asserted defendants' plan did not

have any "substantial negative impacts."      He explained the three


                                 4                              A-1394-16T3
lots would "be very consistent with the character of the other

lots in this zone."        He added that the plan would eventually get

rid   of    defendants'    nonconforming       "guest    cottage,"     and     would

further the purposes of Municipal Land Use Law (MLUL), N.J.S.A.

40:55D-2.

      At the conclusion of the testimony of defendants' second

expert, the Board opened the meeting to "any members of the public

[who] have questions."          The Board did not inquire whether anyone

wanted     to   present   any     testimony    or    evidence    regarding        the

application.        Nor did the Board announce the closure of the

evidentiary portion of the hearing.                 One member of the public

asked defendants' second expert some questions, but none of any

relevance to this appeal.          The chairperson then said, "[W]e have

to open up for public comments[,] and there's a lot of people

here.      I just don't feel like rushing people."1             He consequently

adjourned the proceedings.

      On    April   14,   2015,   the   second      hearing   date,    plaintiffs

attended with their attorney, who advised the Board that he

intended to have a public planner testify on plaintiffs' behalf.

The   Board's    chairperson      responded,     "This   is   the     open    public



1
  The record suggests the Board follows a general rule of
allocating forty-five minutes to an application; if not completed,
the Board adjourns the matter to their next meeting date.

                                        5                                    A-1394-16T3
meeting.     There's no . . . section here for you to call your

planner.     The other [section,] that was closed at the lasting

meeting.   It was opened for public comment[,] and the comment was

on the testimony that was given prior."                      Plaintiffs' attorney

repeated his request to have plaintiffs' public planner expert

testify.     The chairperson replied, "This is the public portion.

It's for public comment.      The hearing portion of it was closed at

the last meeting.      Everybody was noticed.              Nobody showed up . . .

with a planner to oppose this."

     The attorney representing defendants then stated:

           What this Board may not be aware of[,] and
           what [plaintiffs' attorney] may not be aware
           of, too, is that the [o]bjectors had an
           attorney here last time.        There was an
           attorney[,] [i]ntroduced himself, told me he
           was representing the [o]bjectors, and nothing
           was said. And so it is [not] as if they didn't
           have an opportunity before it was closed. It
           isn't as if they weren't represented by
           counsel. Counsel chose, for whatever reason,
           not to make an appearance before the Board.
           He was here[,] and he introduced me as having
           represented the same people.

Contrary   to    the   representation         of       defendants'     attorney,     the

transcript does not indicate the Board ever closed the evidentiary

portion of the hearing.

     After      plaintiffs'   attorney         raised        an   issue      regarding

jurisdiction,     Brielle's   mayor       —        a    member    of   the   Board     —

interjected, and said, "I'm going to make the following suggestion

                                      6                                        A-1394-16T3
. . . .   I cannot see jeopardizing the Borough's position at this

point . . . .    I would suggest that we adjourn . . . this portion

of the hearing until next meeting to give our legal and engineering

experts time to review these questions[,] . . . and then we proceed

next month."     The Board agreed and postponed the hearing "to the

next meeting."

     On June 9, 2015, the third hearing date, the Board's recording

secretary asked defendants whether they wanted to present any

"testimony[,] . . . and the answer was no."2   The chairperson "then

turned to [plaintiffs' attorney] and told him the public portion

of this hearing was closed[,] and no further testimony will be

heard."   The chairman then announced, "[T]he Board is asking that

each person speak for [three] minutes only so everyone who wishes

can make a comment."

     Plaintiffs'     attorney   reiterated   his   request   to   have

plaintiffs' expert testify, and noted the expert "is a resident

of Brielle." The Board rejected the request and approved "a motion

to allow public comments only" on the testimony already given.

Plaintiffs' counsel then asked the Board to give his planner more


2
 After the audio recording for the third meeting proved defective,
the parties stipulated the court and counsel "shall rely on the
official minutes of the June 9, 2015 Meeting of the Borough of
Brielle Planning Board as well as planning testimony outline of
[p]laintiff's [e]xpert."


                                  7                           A-1394-16T3
than three minutes to speak.               When plaintiffs' counsel asked to

mark charts he brought for identification, the mayor responded

"there is no more testimony." Plaintiffs' counsel said his clients

"were being denied their right to present their case[,] and this

is a denial of their Constitutional rights."

      The Board proceeded to hear "public comment" from eight

residents, six who opposed the application and two who spoke in

favor   of   it.         The    Board   then    voted    on     whether   to    approve

defendants' application, with five members voting yes and two

members voting no.

      On July 14, 2015, the Board adopted a resolution granting

defendants' application for the subdivision and two variances.

The Board concluded defendants were "entitled to C1 relief due to

the features existing which uniquely affect this specific piece

of   property      and    due    to     peculiar   and     exceptional      practical

difficulties       to,    or    exceptional     and     undue    hardship      upon   the

developer of such property."              The Board reasoned:

             [A]s it relates to the first requested
             variance, there is a preexisting conformity
             [sic] as it relates to the guest house which
             lawfully exists on the lot and that,
             furthermore, this existing condition will be
             extinguished   once   the   guest   house   is
             demolished     per    [defendants']     stated
             intention.    As it relates to the second
             aforementioned variance, the Board notes that
             because of the width of the lot adjacent to
             [the western street], one would not be

                                            8                                    A-1394-16T3
           permitted to have four (4) conforming lots,
           an issue which presents a hardship. Nothing
           can be done to increase the frontage along
           [the western street]. Given the unique pie-
           shaped dimensions of the subject parcel, the
           Board further notes [defendants have] sought
           to create three (3) lots which fully conform
           to the [z]oning ordinance, with the exception
           of the lot width variance on . . . the corner
           lot.    The Board notes that it would be
           impossible   for   [defendants]   to   acquire
           additional property in order to meet the lot
           width requirements in the R-3 Zone. The Board
           concludes that there is a practical hardship
           associated with the configuration of the lot
           that inhibits the extent to which [defendants]
           can use the property, a hardship which
           satisfies the C-1 criteria. The Board further
           concludes that no substantial negative impact
           exists on this application sufficient to
           negatively impact the surrounding properties
           or the zone plan in a meaningful way. In this
           instance, the Board concludes that these
           properties can be developed in such a manner
           as to meet all of the setback criteria, height
           criteria, and in such a manner as to be
           consistent with surrounding properties and
           homes on properties.     There is a positive
           reason for nonconformity to continue. Thus,
           any developed lots will meet all of the
           requirements in the R-3 Zone with the
           exception of the lot width variance on [the
           corner lot] as previously indicated.

      The Board also concluded, "[U]nder the C2 analysis[,] . . .

the positive and negative criteria were met by [defendants,] and

the   granting   of   'C'   variance   relief   as   set   forth   herein   is

appropriate."    It reasoned:

           [W]hen taking into account the current
           character of the R-3 Zone as it extends
           between [the western street] and the Manasquan

                                       9                             A-1394-16T3
            River, every single lot in that zone runs from
            the street through to the [r]iver with
            waterfront frontage, and that furthermore,
            within this area there are fifteen (15) other
            lots, of which seven (7) have nonconforming
            lot widths.      The Board determines that
            approval of this application represents a
            better zoning alternative for the property
            which benefits the community. The Board also
            points out that preliminarily[, defense
            counsel] intimated [defendants] might seek a
            subdivision of four (4) lots, but that since
            that   time   [defendants   have]   filed   an
            [a]pplication seeking a minor three (3) lot
            subdivision. The Board determined that having
            fewer lots with a larger lot area makes better
            planning sense and will not be in conflict
            with the nature and character of the R-3 Zone
            as presently developed.

       On August 5, 2015, plaintiffs filed an action in lieu of

prerogative writs in the Law Division, challenging the Board's

decision.    After conducting a hearing, the court reversed the

variances granted by the Board, and vacated "the remainder of the

Board's decision" and remanded the matter for further proceedings.

The court concluded the Board's findings relating to the variances

"are   without   legal   or   factual   support."   The   court   further

concluded, "A review of the record reveals the Board failed to

conduct the hearing consistent with principles of due process and

fundamental fairness.     By denying [o]bjectors the right to present

expert testimony, the Board's decision resulted in an unfair

outcome, warranting reversal."



                                   10                             A-1394-16T3
                                 II.

     Zoning boards make quasi-judicial decisions to grant or deny

applications within their jurisdiction.        Willoughby v. Planning

Bd. of Deptford, 306 N.J. Super. 266, 273 (App. Div. 1997);

Kotlarich v. Mayor of Ramsey, 51 N.J. Super. 520, 540-41, (App.

Div. 1958).     The determination of a zoning board is presumed to

be valid.     Kramer v. Bd. of Adjustment, 45 N.J. 268, 285 (1965);

Cell S. of N.J. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81

(2002).   The court's review of a board's decision is based solely

on the record before the board.        Kramer, supra, 45 N.J. at 289.

A court must not substitute its own judgment for that of the board

unless there is a clear abuse of discretion.     See Cell S. of N.J.,

supra, 172 N.J. at 81.    The burden is on the challenging party to

demonstrate that the board's decision was arbitrary, capricious,

or unreasonable.     New Brunswick Cellular Tel. Co. v. Borough of

S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999); Smart SMR

of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J.

309, 327 (1988); Cell S. of N.J., supra, 172 N.J. at 81.

     This court applies the same standards as the trial court.

Bressman v. Gash, 131 N.J. 517, 529 (1993); D. Lobi Enters., Inc.

v. Planning/Zoning Bd., 408 N.J. Super. 345, 360 (App. Div. 2009).

However, when an appeal raises a question of law, we apply a



                                 11                           A-1394-16T3
plenary standard of review.     Wyzykowski v. Rizas, 132 N.J. 509,

518 (1993).

                                 A.

     We first address defendants' argument that the trial court

erred when it concluded the Board's hearing denied plaintiffs due

process.   Defendants assert the Board complied with due process

throughout these proceedings.

     N.J.S.A. 40:55D-10(d) states:

           The testimony of all witnesses relating to an
           application for development shall be taken
           under oath or affirmation by the presiding
           officer, and the right of cross-examination
           shall be permitted to all interested parties
           through their attorneys, if represented, or
           directly, if not represented, subject to the
           discretion of the presiding officer and to
           reasonable limitations as to time and number
           of witnesses.

Planning boards have the obligation "to afford . . . all objectors

a fair opportunity to address the full range of planning issues"

presented by development applications. Witt v. Borough of Maywood,

328 N.J. Super. 432, 454 (Law Div. 1998), aff'd o.b., 328 N.J.

Super. 343 (App. Div. 2000), citing    N.J.S.A. 40:55D-10(d).

     Although an attorney representing some plaintiffs may have

attended the first Board hearing, the transcript of the proceedings

contains no confirming evidence.      During the second proceeding,

the Board refused to allow plaintiffs to present an expert on


                                12                          A-1394-16T3
their behalf, and adjourned the proceeding without hearing any

public comments.   At the beginning of the third proceeding, the

Board secretary asked defendants' attorney "if he had any new

testimony to present and the answer was no."     When plaintiffs'

counsel asked to call their expert, the planning board refused to

permit it.   When a planning board allows an applicant to present

testimony but denies objectors "a fair opportunity [to] present

all of their witnesses[,] [it] deprives the ultimate conclusion

of legitimacy."    Witt, supra, 328 N.J. Super. at 454 (Law Div.

1998).

     Before the trial court, the Board's attorney argued that the

Board had the right to "make the rules governing" its hearings,

pursuant to N.J.S.A. 40:55D-10(b).   The trial court rejected this

argument, noting that:

          [A] review of the record reveals that if there
          were rules, they were not known to all who
          appeared, as the [o]bjectors were "surprised
          by the order of the proceedings."

          A review of the transcript makes it perfectly
          clear that the Board never advised the public
          that objectors were required to sign a book
          or give notice that they wished to call
          witnesses in advance of the hearing.

     Although the Board had the discretion to set "reasonable

limitations" as to the number of witnesses and how long they could

testify, N.J.S.A. 40:55D-10(d), it abused its discretion when it


                               13                          A-1394-16T3
refused to allow plaintiffs to present even a single expert witness

to oppose defendants' two experts.               See Witt, supra, 328 N.J.

Super. at 454 (Law Div. 1998).        We agree with the trial court that

"the record reveals the Board failed to conduct the hearing

consistent    with    principles     of    due    process    and    fundamental

fairness," warranting reversal of the Board's decision.

                                           B.

     We next address defendants' argument that the record lacks

support for the trial court's conclusion that the Board improperly

granted defendants' requested variances.

     "An applicant who pursues a variance under N.J.S.A. 40:55D-

70(c)(1) must establish that the particular conditions of the

property present a hardship."         Ten Stary Dom P'ship v. Mauro, 216

N.J. 16, 29 (2013); see also N.J.S.A. 40:55D-70(c)(1).                     "'Undue

hardship' involves the underlying notion that no effective use can

be made of the property in the event the variance is denied."

Commons v. Westwood Zoning Bd. of Adjustment, 81 N.J. 597, 605

(1980).

     "Thus,    [(c)(1)]    variance       approval     require[s]    the     party

requesting    the    variance   to   prove      both   positive    and   negative

criteria: there must be a benefit to the community from granting

the variance that outweighs the detriment to the zoning plan, and



                                      14                                   A-1394-16T3
the purposes of the MLUL must be advanced."         Borough of Saddle

River v. 66 E. Allendale, LLC, 216 N.J. 115, 125 n.4 (2013).

     "A 'c(1)' variance is not available to provide relief from

self-created   hardship."   Green    Meadows   at   Montville,   LLC    v.

Planning Bd. of Montville, 329 N.J. Super. 12, 22 (App. Div. 2000).

An applicant may not claim an undue hardship when the applicant

seeks to divide the lots "in such a way as to make [the] lots

nonconforming."   Ibid.

     If the applicant created the hardship, the planning board may

nevertheless grant a variance under N.J.S.A. 40:55D-70(c)(2).

Ibid.   In Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405 N.J.

Super. 189, 198 (App. Div. 2009), this court stated that in order

to secure variance relief pursuant to N.J.S.A. 40:55D-70(c)(2),

the applicant must show:

           (1) [that the variance] relates to a specific
           piece of property; (2) that the purposes of
           the [MLUL] would be advanced by a deviation
           from the zoning ordinance requirement; (3)
           that the variance can be granted without
           substantial detriment to the public good; (4)
           that the benefits of the deviation would
           substantially outweigh any detriment[;] and
           (5) that the variance will not substantially
           impair the intent and purpose of the zone plan
           and zoning ordinance.

           [Ibid. (quoting William M. Cox, New Jersey
           Zoning and Land Use Administration, § 6-3.3
           at 143 (Gann 2008)).]



                                15                               A-1394-16T3
       Defendants argue their "'hardship' arises not from an act of

[their own or] their predecessors in title, but rather from the

shape of the property."          (Db22)     They argue a "(c)1 [d]efendant

need   only    prove    that   [the]   property's      unique   characteristics

inhibit 'the extent' to which the property can be used."                     They

cite Bressman v. Gash, 131 N.J. 517, 529-30 (1993), in which our

Supreme Court concluded the applicant suffered a hardship when

"the    physical       characteristics      of   the    lot     both   precluded

construction of a house consistent with the character of the

neighborhood and constituted a sufficient hardship to support the

grant of a c(1) variance."         They also cite Lang v. Zoning Bd. of

Adjustment, 160 N.J. 41, 61 (1999), in which our Supreme Court

concluded the applicant suffered a hardship when:

              it was not the size of the proposed pool, but
              rather   the   unusual  narrowness   of   the
              applicant's property in relation to the
              ordinance's minimum width and the width of
              properties in the vicinity, combined with the
              existing structures on the property, that
              constituted the reasons why the setback and
              area variances were required.

The Court further noted a "misconception about the term 'undue

hardship[]' . . . is the belief that an applicant seeking a

variance under subsection c(1) must prove that without the variance

the property would be zoned into inutility."              Id. at 54.    Instead,

a hardship inhibits "the extent to which the property can be used."


                                       16                                A-1394-16T3
Id. at 55 (quoting Davis Enters. v. Karpf, 105 N.J. 476, 493 (1987)

(Stein, J., concurring)).

     Defendants misinterpret both Bressman and Lang.                In each

case, the applicant sought a variance to build on a single lot.

They did not seek to divide a lot into nonconforming lots, as

defendants propose to do.      Defendants have only established the

hardship that they cannot divide their single, useful lot into

three new lots, one of which fails to conform to Brielle's zoning

ordinances.     Without the subdivision they seek to create, the

shape of the lot fails to limit their use of the property.            Green

Meadows at Montville, LLC, supra, 329 N.J. Super. at 22, is

directly on point: defendants may not claim an undue hardship when

they seek to divide the lots "in such a way as to make [the] lots

nonconforming."

     Defendants also argue they "satisfied their burden of proof

to justify relief under" N.J.S.A. 40:55D-70(c)(2).          We disagree.

     Defendants    first   requested   a   variance   for   their    "guest

cottage."     The Board found, "[T]here is a preexisting conformity

[sic] as it relates to the guest house which lawfully exists on

the lot and that, furthermore, this existing condition will be

extinguished once the guest house is demolished per [defendants']

stated intention."    The trial court correctly concluded the record

does not support a finding of when the "guest cottage" was built

                                  17                                A-1394-16T3
or when the zoning ordinance rendering it nonconforming was passed.

Without those facts, the planning Board could not find the "guest

cottage" constituted a preexisting condition.

     With respect to the lot-width variance, the planning Board's

resolution   does   not   explain    the   purpose   of   the   lot-width

requirement or how the variance would further that purpose.            The

planning Board's resolution also fails to explain how the variance

would further the purposes of the MLUL.        We agree with the trial

court that the Board's findings relating to the variances "are

without legal or factual support."

     Affirmed.




                                    18                            A-1394-16T3
