                        NOT FOR PUBLICATION WITHOUT THE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-0170-16T4

GERTRUDE WALSH,

        Plaintiff-Respondent,

v.

CITY OF CAPE MAY PLANNING
BOARD,

        Defendant-Appellant,

and

CHRISTOPHER HEIN,

     Defendant/Intervenor-
     Respondent.
_________________________________________

              Argued September 27, 2017 – Decided October 17, 2017

              Before Judges Nugent and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Cape May County, Docket No. L-
              0434-15.

              Richard M. King, Jr., argued the cause for
              appellant.

              Christopher M. Baylinson argued the cause for
              respondent Gertrude M. Walsh (Perskie Mairone
              Brog Barrera & Baylinson, PC, attorneys; Mr.
              Baylinson, of counsel and on the brief).
            Christopher D. Hein, respondent, argued the
            cause pro se.

PER CURIAM

     Defendant City of Cape May Planning Board (the Board) appeals

an August 1, 2016 order granting an owner, plaintiff Gertrude

Walsh, relief in an action in lieu of prerogative writs.           The Law

Division nullified the Board's denial of a bulk variance that

plaintiff had sought for a residential parcel pursuant to N.J.S.A.

40:55D-70(c)(2).    Having concluded the Board could have reasonably

reached its decision on adequate evidence in the record before it,

we vacate the Law Division's order and reinstate the Board's

decision.

                                      I.

     The    pertinent   facts   and   procedural   circumstances   are    as

follows.     Walsh has owned residential property located in Cape

May, New Jersey (the property) for approximately thirty-eight

years.     The property is 120 feet wide and 100 feet deep.          It is

improved with a one and one-half story residence, garage structure

and two off-street parking spaces.

     Walsh applied to the Board for minor subdivision approval to

subdivide the property into two lots for the construction of two

single family homes.     The 12,000 square foot property is located

in an R-3A medium density residential district.        Cape May's zoning

                                      2                            A-0170-16T4
ordinance imposes a 6,250 square foot minimum lot size in R-3A

zone districts. Consequently, the application also sought a (c)(2)

variance pursuant to N.J.S.A. 40:55D-70(c)(2) for each proposed

6,000 square foot lot because each fell 250 square feet below the

minimum lot area requirement.

     The Board heard Walsh's application on August 25, 2015.

Harold E. Noon, Jr., a licensed professional planner and surveyor,

testified on behalf of Walsh.        Craig R. Hurless, a licensed

professional   engineer,   professional   planner,   and   certified

municipal engineer, testified on behalf of the Board.      Four local

residents and an attorney representing a fifth local resident

participated during the public comment period.

     Noon testified, generally, that in the same block as the

property, there are nine lots smaller than the proposed lots and

ten undersized lots. He noted that in the area immediately outside

of the block, there are forty-three lots smaller than the proposed

lots, nine that are the same size, and only two that are larger.

Noon stated that the several nearby lots were only 4,000 or 5,000

square feet.

     Noon indicated that the houses in the neighborhood range from

as small as 1,300 square feet to as large as 2,500 square feet.

Based on the current maximum floor area ratio for an R-3A zone, a

4,800 square foot residence could be constructed on the existing

                                 3                            A-0170-16T4
12,000 square foot parcel.          Noon maintained that a residence that

large would overshadow everything around it and be out of character

for the neighborhood, thereby causing a negative impact.

       Noon further opined that the proposed 6000 square foot lots,

which are only four percent below minimum lot size, would be more

harmonious and fit into the character of the neighborhood, thereby

preserving its character and benefitting the community.                 Noon also

claimed that the proposed lots would not be detrimental to the

neighborhood      and,    therefore,          the   benefits    outweighed     any

detriment.

       Relying on the Supreme Court decision in Kaufmann v. Planning

Board for Warren, 110 N.J. 551, 563 (1988) and an unpublished

opinion, Walsh argued that where an area is dominated by a certain

lot size, and the proposed lots mirror what the dominant sizes

are,    the   benefits   of   the    harmonious      lot    sizes   outweigh   the

detriments.

       Hurless,   who    serves     as   the   Board's     engineer,   testified:

"There is an existing single-family dwelling and what's indicated

as a guest house that currently exists on the property."                         He

indicated that both existing structures would be demolished to

construct two new homes, each having a floor area of 2181 square

feet.    Hurless further testified that certain conditions, which

are not pertinent to this appeal, should be conditions of approval.

                                          4                               A-0170-16T4
      The reference to a guest house on the property related to one

of Walsh's submissions.     Noticeably absent from the record is any

testimony or evidence that there is a non-conforming guest house

on the property. Indeed, Noon did not mention or offer any opinion

that the structure was a non-conforming guest house.      During oral

argument in the Law Division, Walsh contended for the first time

that the purported guest house was a non-conforming use that would

be eliminated if the variance and subdivision were approved.

      Four members of the public who owned parcels within 200 feet

of   the   property,   including   intervenor   Christopher   D.     Hein,

testified in opposition to the application.

      Hein argued that there was no objection when the 6250 square

foot minimum lot size was adopted in 2004.          Nor was there an

objection when the R-3A zone districts were created in 2005.           Hein

noted that the applicant had more than ample opportunity to oppose

those zoning changes, since she owned the property for thirty-

eight years.

      Hein further argued that if approved, this would be the first

subdivision in this area in the last sixty years.        The proposed

lots would be the smallest lots on the street, with side yards

reduced by one-half.       He pointed out that the proposal would

undermine several goals of zoning, decreasing light, air, and open



                                    5                              A-0170-16T4
space. He indicated that the proposal would also negatively impact

congestion and parking, making the street much more hazardous.

     Joseph Gloviak, who resides on the same street as Walsh,

testified that the proposed development would make the existing

flooding and inadequate storm protection conditions on the street

even worse.

     An attorney on behalf of Martha Robinson and John Azar, who

also reside on the same street, remarked that it is a very small,

quaint, quiet street, which would be changed by the proposed

development.   He also voiced concern about the precedential impact

if the application were granted.

     The Board denied the application by a vote of three to five

and memorialized its findings and decision in Resolution No. 10-

13-2015:1.     The Resolution incorporated the following findings

pertinent to this appeal:

          18. The Board finds that the purposes of the
          Zoning Ordinance of the City of Cape May as
          set forth in Section 525-2B(1) through (14)
          and of the Municipal Land Use Law of the State
          of New Jersey enumerated in N.J.S.A. 40:55D-
          2(a) through (p) would not be advanced by
          granting a variance to deviate from the
          requirements of Section 525-16.1B(1) Table 1
          []minimum lot size requirement of the Zoning
          Ordinance because the Board finds that the
          applicant has failed to establish a special
          reason that would advance those purposes. The
          Board finds that the creation of two
          undersized lots in the R-3A Medium Density
          District    which   would   result    in   the

                                 6                          A-0170-16T4
construction of 2 single family dwellings on
Swan Avenue which is a narrow street and a
unique neighborhood and that such development
is contrary to the master plan adopted by the
City.   The Board finds that the proposed
development does not create a more harmonious
condition in the neighborhood than the current
condition of the property.

19. The Board further finds that the criteria
set forth in N.J.S.A. 40:55D-70[c](2) has not
been satisfied and that there are no benefits
to the community in the applicant's proposal
and that the only benefits are to the
applicant. In addition, this benefit to the
applicant of subdividing the property which
would permit the construction and sale of 2
dwelling units is substantially outweighed by
the detriment to the community that would
result from the increase in traffic, parking
on Swan Avenue and the creation of additional
nonconformities in the Zoning District and
City.    The area in which the applicant's
property is located is part of Frog Hollow
which is the lowest part of town and is prone
to flooding.   The Board determines that the
best way to preserve the character of the
neighborhood is to maintain the current
configuration of the property. The Board also
finds that the applicant has failed to satisfy
the negative criteria because the application
cannot    be  granted    without   substantial
detriment to the public good and such variance
relief would impair the intent and purpose of
the zone plan and Zoning Ordinance. The Zone
plan as reflected in the master plan which has
been updated and in which it is determined
what the minimum lot size in the R-3A Zone for
a single family dwelling; the master plan and
Zoning Ordinance did not determine the minimum
lot size to be what the applicant is
proposing. The applicant's proposal does not
meet any of the goals or objectives of the
master plan or zoning ordinance.


                      7                          A-0170-16T4
       On September 8, 2015, Walsh filed an action in lieu of

prerogative    writs,    alleging    that   the    Board's     decision      was

arbitrary, capricious, and unreasonable.          Following a hearing, the

Law Division judge issued an order and written memorandum of

decision, reversing the Board.        This appeal followed.

                                     II.

       "Our standard of review for the grant or denial of a variance

is the same as that applied by the Law Division."                 Advance at

Branchburg II, LLC v. Branchburg Twp. Bd. of Adjustment, 433 N.J.

Super. 247, 252 (App. Div. 2013).           Specifically, "when a party

challenges a zoning board's decision through an action in lieu of

prerogative writs, the zoning board's decision is entitled to

deference."    Kane Props., LLC v. City of Hoboken, 214 N.J. 199,

229 (2013).      We grant planning boards "wide latitude in the

exercise of delegated discretion" due to "their peculiar knowledge

of local conditions[.]"     Price v. Himeji, LLC, 214 N.J. 263, 284,

(2013) (quoting Kramer v. Bd. of Adjustment for Sea Girt, 45 N.J.

268, 296 (1965)).

       We give even greater deference to a planning board's decision

to deny a variance.        Nextel of New York, Inc. v. Borough of

Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 38 (App.

Div.   2003)   (citing   Northeast    Towers,     Inc.   v.   Zoning   Bd.    of

Adjustment for W. Paterson, 327 N.J. Super. 476, 494 (App. Div.

                                      8                                A-0170-16T4
2000)); Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of

Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001).             "That

heavier burden requires the proponent of the denied variance to

prove that the evidence before the board was 'overwhelmingly in

favor of the applicant.'"     Nextel of New York, Inc., supra, 361

N.J. Super. at 38 (quoting Northeast Towers, supra, 327 N.J. Super.

at 494).

     The scope of judicial review is limited "to determin[ing]

whether the board could reasonably have reached its decision."

Davis Enterprises v. Karpf, 105 N.J. 476, 485 (1987).        Therefore,

a court generally "will not substitute its judgment for that of a

board 'even when it is doubtful about the wisdom of the action.'"

Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor

Twp., 172 N.J. 75, 81 (2002) (quoting Cellular Tel. Co. v. Zoning

Bd. of Adjustment for Harrington Park, 90 F. Supp. 2d 557, 563

(D.N.J. 2000)).     "[C]ourts 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 for N. Caldwell, 160 N.J. 41, 58-59

(1999).    The Board's conclusions of law, however, are subject to

de novo review.   Nuckel v. Little Ferry Planning Bd., 208 N.J. 95,

102 (2011).

                                    9                            A-0170-16T4
     When reviewing a board's decision, we presume its factual

determinations to be valid, and we will only reverse if the

decision is arbitrary, capricious, or unreasonable.          Kane Props.,

supra, 214 N.J. at 229.       That decision must be made on the basis

of what was before the board and "not on the basis of a trial de

novo,   by   affidavit   or   otherwise,   before   the   Law   Division."

Antonelli v. Planning Bd.of Waldwick, 79 N.J. Super. 433, 440-41

(App. Div. 1963); Gayatriji v. Borough of Seaside Heights Planning

Bd., 372 N.J. Super. 203, 207 (Law Div. 2004).            Matters outside

the record of proceedings before the Board may not be considered

by the court.      See Adams v. Delmonte, 309 N.J. Super. 572, 583

(App. Div. 1998); Kempner v. Edison, 54 N.J. Super. 408, 417 (App.

Div. 1959).

     Walsh applied for a (c)(2) variance from the minimum lot size

required in an R-3A zone district.         The Municipal Land Use Law

(MLUL), N.J.S.A. 40:55D-1 to -163, authorizes local zoning and

planning boards to grant variances from zoning ordinances.           Here,

the relevant MLUL provision is N.J.S.A. 40:55D-70(c)(2), which

prescribes in pertinent part:

             [W]here in an application or appeal relating
             to a specific piece of property [it is shown
             that] the purposes of this act . . . would be
             advanced by a deviation from the zoning
             ordinance requirements and the benefits of the
             deviation would substantially outweigh any
             detriment, [the Board may] grant a variance

                                   10                              A-0170-16T4
           to allow departure from regulations pursuant
           to article 8 of this act; provided, however,
           that the fact that a proposed use is an
           inherently beneficial use shall not be
           dispositive of a decision on a variance under
           this subsection[.]

     "N.J.S.A. 40:55D-70(c)(2) permits a variance for a specific

property, if the deviation from bulk or dimensional provisions of

a zoning ordinance would advance the purposes of the zoning plan

and if the benefit derived from the deviation would substantially

outweigh any detriment."       Ten Stary Dom P'ship v. Mauro, 216 N.J.

16, 30 (2013).

     Our courts refer to the balancing of benefit and detriment

as proving "the positive and negative criteria."            Ibid. (citing

Nash v. Bd. of Adjustment of Morris Twp., 96 N.J. 97, 106 (1984))

"The applicant bears the burden of proving both the positive and

negative criteria."       Ibid.

     To   qualify   for    a   (c)(2)    variance,   the   applicant   must

demonstrate that "the purposes of the MLUL would be advanced, the

variance can be granted without substantial detriment to the public

good, the benefits of the variance will outweigh any detriment,

and that the variance will not substantially impair the intent and

purpose of the zoning plan and ordinance."           Jacoby v. Englewood

Cliffs Zoning Bd. of Adjustment, 442 N.J. Super. 450, 471 (App.




                                    11                             A-0170-16T4
Div. 2015) (citing Wilson v. Brick Twp. Zoning Bd. of Adjustment,

405 N.J. Super. 189, 198 (App. Div. 2009)).

     Importantly, our Supreme Court has emphasized that a (c)(2)

variance should not be granted when only the purposes of the owner

will be advanced.    Kaufmann, supra, 110 N.J. at 563.         Instead, the

variance must actually benefit the community by allowing a better

zoning alternative for the property.        Ibid.     The focus of a (c)(2)

case, then, is not "on the characteristics of the land that, in

light of current zoning requirements, create a 'hardship' on the

owner   warranting     a   relaxation      of   standards,     but   on   the

characteristics   of   the   land   that    present    an   opportunity   for

improved zoning and planning that will benefit the community."

Ibid.

     In short, the granting of a "(c)(2) variance will stand if,

after adequate proofs are presented, the Board concludes that the

'harms, if any, are substantially outweighed by the benefits.'"

Jacoby, supra, 442 N.J. Super. at 471 (quoting Kaufmann, supra,

110 N.J. at 565).

     An application for a bulk variance under subsection (c)(2)

frequently implicates several purposes of the MLUL,

          including to encourage a municipality to guide
          development in a manner that will promote the
          health, safety, and welfare of its residents,
          N.J.S.A. 40:55D-2(a); . . . and to provide
          "adequate light air, and open space," N.J.S.A.

                                    12                               A-0170-16T4
            40:55D-2(c).      A   municipality is   also
            authorized to guide development that will
            promote "a desirable visual environment,"
            N.J.S.A.   40:55D-2(i),   and   to establish
            "appropriate population densities," N.J.S.A.
            40:55D-2(e).

            Ten Stary Dom P'ship, supra, 216 N.J. at 30-
            31.

     Site conditions, including the impact of the variance on the

risk of flooding, storm runoff, traffic congestion, and limited

available on-street parking, are legitimate concerns when the

proposed variance implicates those conditions.                See id. at 38

(concerning drainage and risk of flooding); Kali Bari Temple v.

Bd. of Adjustment of Twp. of Readington, 271 N.J. Super. 241, 251

(App. Div. 1994) (concerning traffic and parking).                     Likewise, a

subdivision   which   creates   two       lots   harmonious       in    size   with

neighboring properties may also be a valid consideration.                       See

Kaufmann, supra, 110 N.J. at 565.

                                 III.

     With   these   standards   in    mind,      we   turn   to    the     Board's

arguments. The Board raises two main issues for our consideration:

(1) the trial court reversed the Board based upon an inaccurate

description of the record regarding surrounding lot sizes and an

unsupported finding that the current use is non-conforming; and

(2) the Board was not obligated to grant the variance. Hein raises

two additional arguments for our consideration: (1) the trial

                                     13                                    A-0170-16T4
court erred in allowing the applicant to supplement the record

with new and unsubstantiated evidence, and by substituting its own

opinions and judgment for the express findings of the Board in

denying the variance and subdivision; and (2) existing case law

does not support the trial court's reversal of the Board's decision

to deny the variance application.

     The Board found that Walsh failed to meet the positive

criteria of the statute.   Departing from that finding, the judge

found that "Walsh's proposed subdivision will eliminate a non-

conforming use and structure while creating only a [de minimis]

(4%) deviation from the minimum lot area requirement."      The judge

concluded that the proposed subdivision satisfied the positive

criteria for a (c)(2) variance "by creating more harmonious lot

sizes and eliminating a non-conforming use and structure."           We

disagree.

     As the court noted in Kaufmann, "no c(2) variance should be

granted when merely the purposes of the owner will be advanced."

110 N.J. at 563.   Rather "[t]he grant of approval must actually

benefit the community in that it represents a better zoning

alternative for the property."        Ibid.   Here, the board had an

ample basis to conclude that the benefits claimed by Walsh are

insubstantial or non-existent.        The Board reasonably determined

that the construction of two new homes on a narrow street would

                                 14                           A-0170-16T4
not result in a more harmonious condition in the neighborhood and

would be contrary to the master plan.

     The judge found that Walsh satisfied the positive criteria,

in part, because the proposed subdivision would eliminate a non-

conforming use in the form of a guest house.       In reaching that

conclusion the judge stated:   "Walsh's home sits side-by-side with

a guest home and garage."    The judge further stated that Walsh's

expert, Noon, opined that the proposed lots "would eliminate the

separate guest house which is a non-conforming use[.]"      Although

Walsh made such arguments to the judge, the record before the

Board does not support them.    The record contains only a single

fleeting reference to a guest house, which appears to have stemmed

from that term being used on one of the applicant's submissions,

rather than by competent evidence presented to the Board.    Walsh's

expert did not even mention the guest house.         The record is

otherwise devoid of any reference to a non-conforming guest house

or its elimination.   Thus, a fact central to the court's decision

had never been properly developed on the record before the Board,

which became the record before the Law Division.

     We also part company with the judge's rejection of the Board's

finding that Walsh's application failed to meet the negative

criteria of the statute.    "The requirement that the grant of the

variance not 'substantially impair the intent and purpose of the

                                15                           A-0170-16T4
zone plan and zoning ordinance' focuses on whether the grant of

the variance can be reconciled with the zoning restriction from

which the applicant intends to deviate."            Lang, supra, 160 N.J.

at 57 (quoting Medici v. BPR Co., 107 N.J. 1, 21 (1987)).                    In

Lang, the Supreme noted that "reconciliation of a dimensional

variance with the zone plan and zoning ordinance is a relatively

uncomplicated issue, and depends on whether the grounds offered

to support the variance, either under subsection c(1) or c(2),

adequately justify the board's action in granting an exception

from the ordinance's requirements."          Ibid. at 57-58.

     The Board rejected plaintiff's contention that granting its

application   for   a   variance   would     not   result   in   "substantial

detriment to the public good and will not substantially impair the

intent and the purpose of the zone plan and zoning ordinance."

N.J.S.A. 40:55D-70.     In overturning that finding, the trial judge

found that proposed subdivision would create only a de minimis

four percent deviation from the minimum lot area requirement.                On

this point, we again conclude that the judge should have accorded

the Board more deference.

     In   attempting    to   negate    the    Board's   concern     that   the

subdivision of her property would result in a substantial detriment

to the surrounding properties, plaintiff notes that the proposed

subdivided lots would deviate no more than four percent from the

                                      16                              A-0170-16T4
minimum lot size requirement.    While that may be so, the Board did

not act arbitrarily or capriciously in finding these deviations

to be significant nonetheless.     If viewed in a different numeric

manner, each proposed lot would be 250 square feet below the

minimum size.    The Board was not obligated to treat that shortfall

as negligible.

     Walsh also emphasizes that several other nearby lots are

smaller than 6250 square feet.    The Board was entitled to consider

the cumulative negative impact of creating additional undersized

lots on the neighborhood in light of the master plan's goal of

controlling population density.

     We are satisfied that the Board's decision to deny the

variance was not arbitrary, capricious or unreasonable and was

supported by substantial evidence in the record.    The proofs here

demonstrate that the variance would advance the purposes of the

owner rather than the community.      Walsh did not meet her burden

of demonstrating that the community will benefit due to improved

zoning if the variance is granted.    See Loscalzo v. Pini, 228 N.J.

Super. 291, 304 (App. Div. 1988), certif. denied, 118 N.J. 216

(1989).

     In sum, the Board did not act arbitrarily in reaching its

considered assessment that Walsh's variance application did not

fit within the "very narrow band of cases" in which a (c)(2)

                                 17                          A-0170-16T4
variance is warranted. Kaufmann, supra, 110 N.J. at 560. Adhering

to our limited scope of review, we conclude the Board could have

reasonably reached its decision on the competent evidence before

it.   Davis Entrs., supra, 105 N.J. at 485.   We therefore reverse

the Law Division's decision and reinstate the      denial of the

variance by the Board.

      Reversed.




                               18                          A-0170-16T4
