                                NOT FOR PUBLICATION WITHOUT THE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-3659-18T3

JOHN FITZPATRICK,

          Plaintiff-Appellant,

v.

PLANNING BOARD OF THE
TOWNSHIP OF FREEHOLD,

     Defendant-Respondent.
___________________________

                    Submitted December 2, 2019 – Decided January 17, 2020

                    Before Judges Messano and Susswein.

                    On appeal from the Superior Court of New Jersey,
                    Law Division, Monmouth County, Docket No. L-3768-
                    17.

                    Michael B. Steib, attorney for appellant.

                    Francis C. Accisano, attorney for respondent.

PER CURIAM

          In 2007, plaintiff John Fitzpatrick sought minor subdivision and variance

approval from defendant Township of Freehold Planning Board (the Board),
permitting him to subdivide one of two contiguous lots that he owned. The

Board's January 2008 memorializing resolution approved the development

application. As a result, while Block 105, Lot 42, which plaintiff owned and

was not a subject of the application, remained intact, Lot 43, a "split lot,"1

became Lots 43 and 43.01, with the lot line drawn along the line demarcating

the two zones. The Board's resolution included a condition prohibiting any

further subdivision of Lots 43 and 43.01, finding it was contrary to the

municipality's land use regulations and the Municipal Land Use Law (MLUL),

N.J.S.A. 40:55D-1 to -163. Plaintiff never challenged this restriction imposed

by the Board.

      In 2016, plaintiff filed another development application in which he

sought to subdivide Lots 42 and 43, creating four lots out of two. The houses

already standing on the two lots would remain in place, with the subdivisions

affecting the land between those homes. All four proposed lots would comply

with the dimensional requirements of the zoning district, and plaintiff agreed to

comply with all technical conditions imposed by the Board's professional staff.




1
  A "split lot" lies in two different zones. See, e.g., AMG Assocs. v. Twp. of
Springfield, 65 N.J. 101, 103–04 (1974) (explaining the term).


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                                       2
      The Board held hearings on the application, considered the testimony of

plaintiff's professional engineer and planner, and unanimously denied the

application.2 In its memorializing resolution, the Board found that three of the

four proposed lots "would be of lesser area tha[n] other properties on [the street]

and in the adjoining . . . [s]ubdivision." The Board characterized the application

as one seeking "excision of the condition [of no further subdivision] from the

prior [r]esolution of [a]pproval." The Board rejected any expert testimony

"regarding the mental state of the [a]pplicant at the time of the original [m]inor

[s]ubdivision" as "self-serving recollections[.]" It also found plaintiff failed to

produce any evidence "to indicate . . . there ha[d] been changes to the . . . Master

Plan, Land Use Ordinance, or changes in the area which would justify an

excision or modification of the previously imposed condition."

      Plaintiff filed a complaint in lieu of prerogative writs in the Law Division

alleging the Board's denial was "arbitrary, capricious and unreasonable." In a

written decision, Judge Linda Grasso Jones reviewed the testimony before the

Board, as well as applicable case law. The judge concluded "plaintiff did not


2
  Between the two sessions of hearings, it appears that recordings of the 2007
hearings were made available to plaintiff, his experts and the Board. The
Board's memorializing resolution lists a compact disc of those proceedings as
part of the record before the Board. Those 2007 proceedings were transcribed
and are part of the appellate record.
                                                                            A-3659-18T3
                                         3
carry his burden of showing that either changed circumstances or other good

cause existed to grant relief from the previously-imposed condition against

subdivision, and this court thus is without authority to disturb the decision of

the Board[.]" Judge Grasso Jones dismissed the complaint, and this appeal

ensued.

      Before us, plaintiff essentially reiterates the arguments made in the Law

Division. He contends the subdivision application met all the requirements of

the zoning regulations, the Board's "power to impose conditions upon an

approval is balanced by it[]s obligation to consider requests for relief from such

conditions[,]" and his expert witnesses "demonstrated changed circumstances

and other good cause" justifying excision of the earlier restriction on any further

subdivision of Lot 43.

      The Board contends that the decision to deny relief from the restriction

was "not arbitrary, capricious or unreasonable in the absence of changed

circumstances or other good cause." It also argues that plaintiff's challenge is

actually an appeal from the condition imposed in 2007 and is untimely under

Rule 4:69-6(b)(3) (requiring all actions in lieu of prerogative writs seeking

review of a planning board's or board of adjustment's action to be filed within

forty-five days of publication of the memorializing resolution).


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                                        4
      Having considered these arguments in light of the record and applicable

case law, we affirm substantially for the reasons expressed by Judge Grasso

Jones.

      We first note that plaintiff accurately states certain general principles

applicable to the issue before us. Under the MLUL, if no variance is required,

the Board must grant preliminary subdivision approval to a development

application that complies with the design standards and other requirements of a

municipality's subdivision ordinance and the statute. Pizzo Mantin Grp. v. Twp.

of Randolph, 137 N.J. 216, 229 (1994); see also Klug v. Bridgewater Twp.

Planning Bd., 407 N.J. Super. 1, 11 (App. Div. 2009) ("[B]ecause the new

application complied with all ordinances and required no variance or waiver, the

Board was required to approve it.") (citing Pizzo Mantin, 137 N.J. at 226).

      Additionally, plaintiff correctly asserts that a local land use board may

reconsider any previously imposed condition or restriction in a subsequent

development application. In Allied Realty, Ltd. v. Borough of Upper Saddle

River, we said a board may consider

            a new application for a variance, or here for subdivision
            approval, or for modification . . . of one already
            granted, "or for lifting conditions previously imposed,"
            upon a showing that the continued enforcement of the
            restriction would frustrate an appropriate purpose.
            Changed circumstances or other good cause may

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                                       5
             warrant reconsideration by the local authorities. To
             hold differently would offend public policy by
             countenancing a restraint upon the future exercise of
             municipal action in the absence of a sound reason
             justifying such a static approach. The question for the
             municipal agency on a second application thus centers
             about "whether there has occurred a sufficient change
             in the application itself or in the conditions surrounding
             the property to warrant entertainment" of the matter
             again.

             [221 N.J. Super. 407, 414 (App. Div. 1987) (quoting
             Cohen v. Borough of Fair Lawn, 85 N.J. Super. 234,
             237 (App. Div. 1964); quoting Russell v. Bd. of
             Adjustment of Tenafly, 31 N.J. 58, 66 (1959)).]

Accord Park Ctr. at Route 35, Inc. v. Zoning Bd. of Adjustment of Woodbridge,

365 N.J. Super. 284, 291 (App. Div. 2004). However, recognition of these

general principles does not relieve the applicant of his burden of proof, nor does

it change the trial court's and our standard of review of the Board's actions in

this case.

      Like the trial court, we apply a highly deferential standard of review to

the Board's decisions, which "enjoy a presumption of validity, and a court may

not substitute its judgment for that of the board unless there has been a clear

abuse of discretion." Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (citing

Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J.

75, 81 (2002)). "Because a [board's] actions are presumed valid, the party


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                                         6
'attacking such action [has] the burden of proving otherwise.'"         Northgate

Condo. Ass'n v. Borough of Hillsdale Planning Bd., 214 N.J. 120, 145 (2013)

(alterations in original) (quoting Cell S. of N.J., 172 N.J. at 81). The party must

demonstrate the board's decision was "arbitrary, capricious[,] or unreasonable."

Ibid. In other words,

             [t]he challenger must show that the Board engaged in
             "willful and unreasoning action, without consideration
             and in disregard of circumstances. Where there is room
             for two opinions, action is [valid] when exercised
             honestly and upon due consideration, even though it
             may be believed that an erroneous conclusion has been
             reached."

             [Id. at 145–46 (second alteration in original) (quoting
             Worthington v. Fauver, 88 N.J. 183, 204–05 (1982)).]

Plaintiff contends he met his burden by demonstrating a change in circumstances

after the Board imposed the 2007 restriction on further subdivision of Lot 43,

other good cause for the requested relief, and because there was "[n]o sound

reason for the restraint."

      Plaintiff argues the expert testimony demonstrated the purpose of the 2007

restriction on further subdivision of Lot 43 was to eliminate the creation of two

non-conforming lots or the creation of a "flag lot" 3 providing access through Lot


3
  See Am. Dream at Marlboro, LLC v. Planning Bd. of Marlboro, 209 N.J. 161,
164 (2012) (describing flag lot configuration).
                                                                           A-3659-18T3
                                        7
43 to newly created Lot 43.01. He asserts the restriction never contemplated a

change in circumstances, i.e., plaintiff's inclusion of Lot 42 in any future

development application. However, the Board rejected the expert's assessment

of its reasons for imposing the restriction in the first place, and its chairman's

sharp questioning of plaintiff's planner resulted in her eventual concession that

the only "change" since 2007 was how plaintiff wished to divide the land. As

noted by Judge Grasso Jones, "the properties in question ha[d] not changed, the

surrounding area ha[d] not changed, the applicable zoning ha[d] not changed,

but rather plaintiff's intentions as to what he would like to do . . . ha[d] changed."

      Plaintiff cites our decision in Cohen and argues that Judge Grasso's

interpretation of what constitutes changed circumstances was wrong, because in

Cohen we affirmed a local board's decision to provide relief from a previously

imposed restriction despite no changes in the property, surrounding properties

or zoning regulations. Cohen's general principles have withstood the test of

time, but plaintiff overlooks the unusual factual circumstances in that case. 85

N.J. Super. 234.

      In Cohen, the local board granted a dairy plant relief from a restriction

imposed when it earlier approved a use variance that included a prohibition on

the dairy's use of certain refrigerants on the property. Id. at 237–38. Objecting


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                                          8
residents claimed that the earlier grant of the variance containing this conditio n

"made the matter [r]es judicata and thus precluded the municipal officials

from . . . eliminating the condition upon a new application[.]" Id. at 236. They

argued the board's decision "was arbitrary, unreasonable[,] and in disregard of

the criteria [used] for the granting of a variance[.]" Id. at 237.

      We noted there was nothing in the record demonstrating the use of the

prohibited refrigerants had a deleterious effect on public health, no showing that

discontinuing their use would impair the zoning plan's objectives, and

enforcement of the prohibition could "only serve to harass the dairy company,"

which business "serve[d] the general welfare[.]" Id. at 238. We also reiterated

that "courts ought not lightly . . . interfere with determinations of zoning matters

made by municipal boards, especially where the local judgment and discretion

do not transgress the statutory limitations and are not based upon arbitrary or

unreasonable considerations." Id. at 239 (citing Vickers v. Twp. Comm. of

Gloucester, 37 N.J. 232 (1962)).

      The facts of Cohen are inapposite to those presented by this appeal. The

grant of relief from a prior condition attached to the variance in that case was

not premised on a demonstration of changed circumstances, but rather on "other

good cause warranting a reconsideration by the local authorities." Id. at 237


                                                                            A-3659-18T3
                                         9
(citing Russell, 31 N.J. at 66). Moreover, in Cohen, we upheld the board's

authority to exercise its discretion to remove a restriction and accord the

applicant the requested relief. Here, plaintiff urges us to conclude the Board's

exercise of its discretion to retain the restriction and deny him relief was

arbitrary, capricious, and unreasonable. In different circumstances, i.e., the

denial of a variance, we have traditionally accorded even greater deference to

the local board's decision not to relieve a property owner of restrictions imposed

by zoning regulations. See, e.g., CBS Outdoor, Inc. v. Borough of Lebanon

Planning Bd./Bd. of Adjustment, 414 N.J. Super. 563, 578 (App. Div. 2010)

(citations omitted); see also Park Ctr., 365 N.J. Super. at 291–92 (affirming local

board's refusal to remove a condition previously imposed during site plan

approval of first phase of a development).

      In this case, plaintiff contends he demonstrated good cause for relief

because the proposed subdivision complies with the zoning regulations and the

general purposes of the MLUL. He argues there is no "sound reason for the

restraint." However, plaintiff's planner testified that Lot 42 alone could be

subdivided into two fully conforming lots, and that plaintiff faced no hardship

in limiting the scope of the development application by not subdividing lot 43.

In fact, during colloquy, plaintiff's counsel admitted there was "[n]o hardship,


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                                       10
just money." See id. at 292 (questioning "economic concerns, of personal

interest only to the applicant" as sufficient changed circumstances justifying

relief from prior restriction).

      In short, plaintiff's properties currently comply with the zoning

regulations and Lot 42 can be further developed consistently with the zoning

regulations and the previously imposed restriction on further subdivision of Lot

43. Plaintiff's inability to obtain an even greater return if the application were

granted does not establish good cause for relief from the prior restriction.

      In the end, it is not our role to second guess the Board's decision,

particularly when it was plaintiff's burden to demonstrate changed conditions or

good cause justifying relief from the prior condition. We agree with Judge

Grasso Jones' conclusion that plaintiff failed to carry his burden. 4

      Affirmed.




4
  As a result, we do not consider the Board's alternative argument that plaintiff's
complaint was an untimely challenge to the propriety of the 2007 restriction on
further subdivision of Lot 43.
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                                       11
