SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

Ten Stary Dom Partnership v. T. Brent Mauro (A-52-11) (069079)

Argued November 5, 2012 -- Decided August 5, 2013

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court considers defendant’s entitlement to a bulk variance from a frontage zoning 

requirement and the appropriateness of affirming an order denying a variance without prejudice.

Defendant T. Brent Mauro owns property in the Borough of Bay Head that fronts on 10.02 feet of Willow 

Drive. The property is located in a single-family, residential zone that requires frontage of fifty feet. Mauro’s property 

conforms to all other zoning requirements. Mauro’s initial building permit application was denied based on a finding 

that Willow Drive was not a public street. Thereafter, the Borough Council adopted a resolution permitting Mauro to 

improve Willow Drive to have it certified as a public street. Mauro subsequently filed an application with the 

Planning Board for a variance to permit a single-family home with frontage of 10.02. At the Board hearings, Mauro 

testified that he had attempted, but failed, to acquire adjacent land to conform to the frontage requirement. A licensed 

professional engineer and planner testified, among other things, that a variance denial would make the lot virtually 

useless and that drainage for the site would be designed in accordance with appropriate engineering standards. Mauro

also submitted architectural plans including fire retardant building materials and a fire suppression system, and a New 

Jersey Department of Environmental Protection (NJDEP) determination authorizing the use of fill on the site and 

construction of a single-family house pursuant to a Freshwater Wetlands Statewide General Permit. Finally, the 

Borough’s fire chief and his assistant testified that the fire company could adequately respond to an on-site emergency 

at the property. In a 5-to-4 vote, the Board granted the variance conditioned on completion of improvements to 

Willow Drive and approval of a stormwater management plan and fire suppression system.

Plaintiff Ten Stary Dom Partnership (Ten Stary Dom), owner of a neighboring property, filed an action in lieu 

of prerogative writs challenging the Board’s action. After the parties confirmed that a voting board member had 

missed relevant meetings, the trial court remanded the matter to the Board for deliberation and a new vote on the 

existing record, and retained jurisdiction. In a 5-to-4 vote, a reconstituted Board denied the frontage variance. The 

Board found that there was not sufficient access to permit the fire department to respond to a fire on the applicant’s 

property; that the property is “in a natural wetland condition,” as designated by the NJDEP, and serves as a drainage 

collector for surrounding properties; and that Mauro failed to provide engineering data addressing a recharge system 

for the property or the amount of fill required. The Board concluded that the application did not promote the 

appropriate use of the land, did not secure safety from fire and flood, did not provide sufficient space for a residential 

use, and did not promote a desirable visual environment or provide adequate light, air, and open space. The Board 

determined that a variance would not advance the purposes of the zoning ordinance and that its denial of a variance 

would not result in undue hardship to Mauro.

The Law Division found that Mauro established the positive criteria but failed to establish the negative 

criteria to support a variance. Primarily citing the inadequacy of the evidence concerning drainage on the property, the 

court found that Mauro failed to carry his burden of proof that reduced frontage would not undermine the zoning plan 

of the community. The trial court, however, affirmed the Board’s denial of the variance without prejudice, thereby 

permitting the applicant to return to the Board with the same application on the same or additional evidence. Both 

parties appealed. The Appellate Division reversed, concluding that Mauro presented sufficient evidence to support the 

negative and positive criteria for the variance and that the Board’s findings were not supported by the record. The 

panel found that Mauro was not obligated to address drainage at the time of the variance approval because drainage is 

an issue relevant to obtaining subsequent site plan review. The panel did not reach the propriety of the trial court’s

denial without prejudice because it found that the variance should have been approved. This Court granted Ten Stary 

Dom’s petition for certification. 209 N.J. 96 (2011).

HELD: Defendant satisfied the positive and negative criteria and is therefore entitled to a bulk variance from a 

frontage zoning requirement. The trial court’s affirmance of the Board’s denial of the variance without prejudice

violated the principle of res judicata.
2

1. Bulk or dimensional provisions of a zoning ordinance control lot size and building location on a parcel of land. 

N.J.S.A. 40:55D-70(c)(1) permits a variance from a bulk requirement, such as frontage, when, by reason of the 

property’s conditions, strict application of the requirement would present peculiar and exceptional practical difficulties 

or undue hardship to the applicant. Efforts made to bring the property into compliance with the ordinance are relevant 

to hardship. An applicant for a (c)(1) variance must satisfy the negative criteria, which requires proof that the variance 

will not result in substantial detriment to the public good or substantially impair the purpose of the zoning plan. 

N.J.S.A. 40:55D-70(c)(2) permits a variance if the deviation from bulk or dimensional provisions would advance the 

purposes of the zoning plan and if the benefit derived from the deviation would substantially outweigh any detriment. 

The positive criteria include proof that the characteristics of the property present an opportunity to put the property 

more in conformity with development plans and advance zoning purposes. The applicant bears the burden of proving 

both the positive and negative criteria. (pp. 15-18)

2. An application for a (c)(1) or (c)(2) bulk variance often implicates purposes of the Municipal Land Use Law 

(MLUL), N.J.S.A. 40:55D-1 to -163, including promoting public health; minimizing threats from disasters; providing 

adequate light, air, and open space; and promoting a desirable visual environment. Evaluation of a bulk variance

request, however, must be directed to the specific zoning purposes actually implicated by the request. For example,

preservation of light, air, and open space may be a valid inquiry in assessing a variance from setback requirements, 

and a variance from lot coverage requirements may implicate drainage and flood concerns. A minor deviation from a 

height restriction, however, may have no impact on the valid goal of maintaining sufficient undeveloped area on a lot 

to foster light, air, and open space. A planning board’s decision is presumptively valid. The party challenging the 

action of a planning board carries the burden of demonstrating that the board acted arbitrarily, capriciously, or 

unreasonably by making a decision not supported by the record. (pp. 18-22)

3. The Board’s findings lack support in the record in all critical respects. Without a variance, the property cannot be 

developed for residential use, the only permitted use in the zone. Mauro’s attempts to cure the nonconformity by 

acquiring adjacent property failed. The Board also disregarded Mauro’s obligation to improve Willow Drive, which 

addresses in part the ability of fire personnel to access the site; the testimony of the fire chief and his assistant that the 

fire company could adequately respond to an on-site emergency; that the plans incorporate a fire suppression system 

and fire retardant materials; and that the NJDEP issued a general permit to bring fill onto the property. In addition, 

the Board ignored that the property conformed in all respects, except frontage, to the zoning ordinance for singlefamily homes. Presumably, the Borough has already determined that a residence constructed on a lot the size of the 

applicant’s meets all setback and height requirements and promotes and provides adequate light, air, and open space, 

and a desirable visual environment. The Board’s findings fail to demonstrate how a ten-foot frontage rather than a 

fifty-foot frontage would constitute a substantial detriment to the zoning plan. (pp. 23-28)

4. The Board afforded undue weight to the drainage factor in evaluating whether a variance from the frontage 

requirement undermined the Borough’s zoning plan. Although drainage and the risk of flooding are legitimate zoning 

concerns, Mauro’s plan is not a development proposal that would add many more units to an existing space. The 

property conforms to the zoning plan’s single-family residential use. The Board delved into concerns that can be 

adequately addressed in another way. A property owner who seeks to construct a house on a residential lot must apply 

for a building permit. See N.J.S.A. 52:27D-130. The municipal building official determines whether the property 

owner’s plans conform to the municipal building standards, including proper drainage and elevation to minimize the 

impact of flooding. Thus, the drainage concerns will be considered during the building permit process. The record 

does not support that Mauro failed to establish the positive or negative criteria for a (c)(1) or (c)(2) variance. (pp. 28-

30)

5. The trial court’s denial without prejudice, which permitted Mauro to return to the Board with the same application 

on the same or additional evidence, ignored the principle of res judicata. Res judicata bars resubmission of the same 

proposal following a dispositive ruling by a planning board. In this case, it was incumbent on the judge to affirm, 

reverse, or modify the decision of the Board. (pp. 30-32)

The judgment of the Appellate Division is AFFIRMED AS MODIFIED.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, HOENS, and PATTERSON; and 

JUDGE RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s opinion. 
SUPREME COURT OF NEW JERSEY

A-52 September Term 2011

069079

TEN STARY DOM PARTNERSHIP,

Plaintiff-Appellant,

v.

T. BRENT MAURO and 

THE BOROUGH OF BAY HEAD 

PLANNING BOARD,

Defendants-Respondents.

Argued November 5, 2012 – Decided August 5, 2013

On certification to the Superior Court, 

Appellate Division.

Joseph Michelini argued the cause for 

appellant (O'Malley Surman & Michelini, 

attorneys).

Steven A. Zabarsky argued the cause for 

respondent Borough of Bay Head Planning

Board (Citta, Holzapfel & Zabarsky, 

attorneys; Mr. Zabarsky and Christian E. 

Schlegel, on the letter in lieu of brief).

Richard H. Woods argued the cause for 

respondent T. Brent Mauro.

JUDGE CUFF (temporarily assigned) delivered the opinion of 

the Court.

This appeal arises in the context of a ten-year attempt by 

the owner of a residential lot to build a house. We review a 

judgment of the Appellate Division reversing the denial of an 

application for a variance, without prejudice, from the frontage 
2

requirement in the zone and ordering issuance of a bulk 

variance. This appeal permits us to address the weight to be 

accorded site-specific conditions, such as drainage, when the 

proposed development conforms to the zoning requirements in all 

respects but frontage. We also address the appropriateness of

affirming an order denying a variance without prejudice. 

I.

Defendant T. Brent Mauro owns a lot in the Borough of Bay 

Head (Borough). The lot is fifty feet by ninety-five feet and

located on Willow Drive, a 500-foot long passage best described 

as a lane or alley. Garages for the homes fronting on the 

streets north and south of Willow Drive line the lane. Mauro’s 

property is situated at the end of the lane and fronts only on 

10.02 feet of Willow Drive. 

The property is located in a single-family, residential 

zone that requires frontage of fifty feet. The property 

conforms to all other zoning requirements, including lot size,

and the proposed residence conforms to all setback and height

requirements of the zone. Three easements, which benefit the 

property, one for emergency access and two for utilities, 

traverse neighboring properties. The property is unimproved and 

accepts natural drainage from the neighboring properties and 

Willow Drive. 
3

Mauro’s attempt to build a single-family house on the lot 

commenced in 2002. In September 2002, the Borough Attorney 

rendered an opinion that Willow Drive was not a municipal 

street; as a result, the zoning officer denied Mauro’s 

application for a building permit. See N.J.S.A. 40:55D-35 

(requiring lot to abut public street for building permit to

issue). Mauro filed an action in lieu of prerogative writs 

challenging that decision. The matter was resolved when the 

Borough Council adopted a resolution on January 17, 2006,

permitting Mauro to improve Willow Drive in accordance with the 

engineering specifications utilized to improve another street in 

the Borough. The Borough Council directed that, if improved in 

accordance with those specifications, Willow Drive would be 

certified as a public street. A January 3, 2006 order in the 

action contesting the 2002 denial of the building permit 

provided that Mauro “will be entitled to a building permit 

subject to improvement of Willow Drive in accordance with the 

governing body’s requirements, and [Mauro] obtaining a frontage 

variance and any other variances, if required by the Planning 

Board.” 

Mauro filed an application with defendant the Borough of 

Bay Head Planning Board (Planning Board or Board) for a bulk 

variance pursuant to N.J.S.A. 40:55D-70(c) to permit development 

of the property with a frontage of 10.02 feet rather than the 
4

required fifty feet. The Board conducted hearings on three 

dates: August 15, 2007; September 19, 2007; and November 28, 

2007. Mauro testified that the proposed single-family dwelling

would meet all bulk requirements other than frontage. He 

testified that he had attempted, but failed, to acquire

additional land from neighboring property owners to conform to 

the frontage requirement. He also testified that his 

discussions with neighboring property owners to purchase his lot 

had “come to a halt.” 

Mauro presented testimony from Robert Burdick, a licensed 

professional engineer and professional planner, who confirmed 

that the best use of the property was single-family residential. 

Burdick also stated that “the denial of the variance would 

certainly represent an exceptional and undue hardship on [Mauro] 

. . . by making the lot virtually useless.” He confirmed that 

the lot and the proposed single-family house conformed in all 

other respects to the zoning ordinance and that the easement for 

emergency access and the access provided by Willow Drive would 

permit response by emergency vehicles and personnel to an 

emergency on the property. Finally, Burdick testified that the 

drainage for the site would be designed in accordance with 

appropriate engineering standards and that runoff would not flow 

onto the neighboring properties. 
5

Mauro submitted a determination from the New Jersey 

Department of Environmental Protection (NJDEP) authorizing the 

use of fill on the site and construction of a single-family 

house pursuant to a Freshwater Wetlands Statewide General 

Permit. Mauro also submitted architectural plans for the 

proposed house. The specifications included a fire suppression 

system and use of fire retardant building materials.

The Board subpoenaed two witnesses to address fire safety.

William Vander Noot, Chief of the Bay Head Fire Company, 

conceded that only one truck could be brought down Willow Drive, 

but he also testified that fighting a fire on the subject

property would not necessarily be more dangerous than on any 

other property. William Boyle, Assistant Chief, concurred with 

Vander Noot. Both men stated that the installation of 

residential sprinklers in the proposed structure, the use of 

fire retardant building materials, and the installation of a 

fire hydrant on Willow Drive, as required by the road 

improvements, would assist fighting a fire on the property. 

Several members of the public opposed the variance. A 

member of plaintiff Ten Stary Dom Partnership (Ten Stary Dom), 

owner of a neighboring property, expressed concerns about the 

recharge system and stormwater run-off onto adjacent properties, 

the aesthetic impact of a ten-foot frontage, the after-
6

improvement width of Willow Drive, safety of children playing on 

Willow Drive, and fire safety. 

On November 28, 2007, in a 5-to-4 vote, the Board granted 

the variance. The Board conditioned the variance on completion 

of improvements to Willow Drive and further provided that a 

building permit could not issue until completion of those

improvements. In addition, the house constructed on the 

property was required to conform to the plans submitted in 

support of the variance, the Board Engineer’s approval of the 

stormwater management plan was necessary, and a fire sub-code 

official’s approval of the fire suppression system installed in 

the structure was required. In its resolution, the Board 

determined that failure to grant the variance would result in 

undue hardship to Mauro and that the variance could be granted 

without undue detriment to the public good and would not “impair 

the intent and purpose of the zone plan, master plan and/or 

zoning ordinances.” The resolution incorporated the following 

findings of fact: 

2. The application for development does not 

block the light, air or space of any 

adjacent property owners based upon the 

dimensions of the house as provided for in 

the elevation and architectural plans as 

well as the placement of the house, and, 

therefore, providing for the setbacks as 

established during the testimony.

3. The property . . . has an exceptional 

and unique configuration in that it only has 
7

10 feet of frontage on Willow Drive which is 

a preexisting, non-conforming condition and 

also constitutes an extraordinary and 

exceptional situation uniquely affecting the 

specific piece of property which results in 

peculiar and exceptional practical 

difficulties and undue hardship to the 

Applicant.

. . . .

5. The application for development and the 

lot itself completely conforms to all the 

zoning requirements of the [Borough] except 

for lot frontage.

6. . . . [T]here are adequate provisions 

for emergency services to be provided to the 

subject property . . . . 

7. The proposed application for development 

will contribute to the desirable visual 

environment of the neighborhood as the 

aesthetics of the house proposed are 

consistent with those houses in the 

[Borough] and the surrounding neighborhood.

II.

Ten Stary Dom filed an action in lieu of prerogative writs 

challenging the Board’s action. It argued that the Board acted 

arbitrarily, capriciously, and unreasonably by granting the 

frontage variance. Ten Stary Dom also asserted irregularities 

in the Board proceedings approving the variance, specifically 

the participation of a member who had not attended all of the 

meetings and had not read the transcripts or listened to tapes 

of the proceedings. After all parties confirmed that
8

allegation, the trial court remanded the matter to the Board for 

deliberation and a new vote on the existing record. 

On December 19, 2009, a reconstituted Board1 considered the 

application on the same record compiled by the applicant in 

support of his August 2006 variance application. The Board, by 

a 5-to-4 vote, denied the frontage variance. The Board founded 

its decision on concerns expressed by neighboring property 

owners about drainage and the water recharge system. The Board 

also cited fire safety and aesthetic concerns. In its January 

20, 2010 resolution, the Board determined that the failure to 

grant the variance would not result in undue hardship to the 

applicant and the purposes of the zoning ordinance would not be 

advanced by a deviation from the zoning ordinance. The 

resolution incorporated the following findings of fact:

1. The subject property in question 

is located at the dead end of a 500 foot 

alley, subject to the requirement of 

constructing a road, with a width arguably 

between 18 and 20 feet. Therefore, for 

emergency purposes, only one (1) fire truck 

or such other emergency vehicle can access 

the site to the exclusion of all others. 

When fighting a fire, the usual three (3) 

fire trucks which respond to a fire will 

only be able to fight the fire with one (1) 

truck on Willow Drive and the other 

emergency vehicles located on either Park 

Avenue or Bridge Avenue. This poses a 

substantial risk to the improvements located 

 

1 During the period between the adoption of the November 2007 

resolution and remand, there had been a change of membership on 

the Board.
9

on the property as well as any persons 

located at the property at the time of a 

fire or emergency due to the limited access 

to the property. Further, if there is a 

vehicle parked on Willow Drive at the time 

of a fire, there will be no access 

whatsoever for a fire truck to be parked 

adjacent to the property to fight a fire.

2. The subject property is designated 

by the New Jersey Department of 

Environmental Protection as a wetland 

property. The property is in a natural 

wetland condition and, during rain, the 

property is known as “the swamp”. In 

addition, water runs down Willow Drive 

toward the subject property and accumulates 

run off from other adjacent properties as 

well. There have been no calculations 

provided to the Planning Board as to how a 

recharge system would actually be designed 

and/or work successfully with regard to the 

subject property. There have been no 

calculations provided to the Planning Board 

with regard to the amount of fill which will 

be necessary, nor topographic surveys or 

soil investigations performed to determine 

the exact elevation which will result from 

filling of the wetland on the property, as 

well as the design of a recharge system so 

that all storm water which runs onto the 

property or is on the property shall be 

recharged into the ground and not further 

run off to any adjacent property owners or 

onto Willow Drive.

3. The subject property is surrounded 

by six (6) residential houses. To the north 

side of the property, there are three (3) 

residential houses which have rear yards 

extending to what will be the subject 

property’s side yard. In addition, to the 

southern portion of the property, there are 

two (2) houses which have rear yards which, 

again, will abut to the side yard of the 

subject property. Finally, located in the 
10

very front yard of the property, will be 

another residential dwelling.

4. The subject property has only 10 

feet of lot frontage on a 20 foot wide 

alley/road which greatly prohibits access to 

the subject property, having only 20% [] of 

the necessary 50 feet of road frontage 

pursuant to the Borough of Bay Head Land Use 

Ordinance.

5. The application for development 

does not promote the purposes of zoning 

under the State Municipal Land Use Law and, 

more specifically, does not:

A. Encourage an appropriate use or 

development of land which promotes the 

public health, safety and general welfare.

B. Secure safety from fire and 

flood.

C. Provide sufficient space for a 

residential use according to environmental 

requirements in order to meet the needs of 

the homeowners of the adjacent properties. 

D. Promote a desirable visual 

environment.

E. Provide adequate light, air and 

open space.

The Law Division had retained jurisdiction when it remanded 

the matter to the Board. Thus, Mauro filed a petition with the 

Law Division to review the January 20, 2010 resolution. Mauro 

asserted that the denial of the variance was arbitrary, 

capricious, and unreasonable because the findings were 

inconsistent with the Board’s previous findings. He also 
11

contended that the denial of the variance constituted a taking 

of his property without just compensation.

By order dated July 13, 2010, the Law Division affirmed the 

action of the Board without prejudice. The order provided that 

Mauro “shall have the right to file a new application with the 

Board seeking the same or such other relief” to permit 

development of the property. In his June 17, 2010 oral opinion,

the judge determined that Mauro had not carried his burden to 

establish the negative criteria to support a variance. That is, 

Mauro failed to carry his burden of proof that reduced frontage 

would not undermine the zoning plan of the community. The judge 

further explained that the critical inadequacy of Mauro’s proof 

concerned drainage. The judge stated:

This court finds that the Board’s denial of 

the application in the face of the absence 

of critical evidence presented is neither 

arbitrary nor unreasonable. [Mauro’s] 

application might have been more persuasive 

if the only issue was fire safety. Such a 

denial in the face of relatively 

uncontroverted testimony might arguably be 

arbitrary and unreasonable. However, the 

Board’s denial on the issue of drainage and 

water displacement is neither arbitrary nor

unreasonable. This is because the Board has 

the legal right to require proofs regarding 

drainage and water displacement. See Field 

[v. Mayor & Council of Franklin, 190 N.J. 

Super. 326 (App. Div.), certif. denied, 95 

N.J. 183 (1983);] Morris C[nty.] Fair Hous.

[Council v. Boonton Twp., 230 N.J. Super.

345 (App. Div. 1989)]. 
12

The judge explained, however, that the denial was without 

prejudice “because the case in and of itself is relatively 

unusual and unique in its history.” He reasoned that a new,

fully constituted Board should have the opportunity to hear the 

application anew, address questions to the witnesses, and 

“determine for itself whether[,] in addition to meeting the 

safety concerns, the potential flooding in adjacent properties 

could be adequately addressed by applying reasonable and 

appropriate engineering principles and design.” The judge also 

expressed a concern that the remand procedure adopted by the 

court, which confined the remand to the record compiled in 2007,

did not permit “a fair exchange with the Board,” particularly 

relating to the drainage issues on the site and in the 

neighborhood. 

III.

Ten Stary Dom appealed the Law Division’s decision 

affirming without prejudice the Board’s denial. Mauro crossappealed, similarly challenging the Law Division ruling that the 

denial was without prejudice and also disputing the decision 

affirming the Board’s denial. 

The Appellate Division concluded that the Board’s findings 

of fact and expressed reasons for denying the variance were 

insufficient. The panel found that drainage is an issue 

relevant to obtaining site plan approval rather than a zoning 
13

variance and that Mauro was not obligated to convince the Board 

such a plan existed at the time of the bulk variance approval. 

The panel determined it was “unreasonably speculative to 

consider a possible component of [Mauro’s] future drainage plan 

when denying his requested variance.” Finally, the panel 

declined to reach the denial without prejudice because it found 

that the variance should have been approved. Accordingly, the 

Appellate Division reversed the denial of the variance, finding 

that Mauro presented sufficient evidence to support the variance

and concluding that the Board acted unreasonably by denying the 

requested relief. The panel remanded for the grant of the bulk 

variance. This Court granted Ten Stary Dom’s petition for 

certification. 209 N.J. 96 (2011). 

IV.

Ten Stary Dom contends that N.J.S.A. 40:55D-37(a) 

establishes that applications for single-family homes are exempt 

from site plan review and approval by a planning board. 

Accordingly, it maintains the Appellate Division incorrectly 

found that drainage issues could be considered by the Board 

during the site plan approval process. Ten Stary Dom also 

argues that, in finding drainage is an improper consideration 

for a variance request, the Appellate Division denied the Board 

the “sole opportunity to engage in meaningful review of all 

aspects of the application,” that those concerns are the sole 
14

province of the Board, and that the Appellate Division erred by 

shifting review of drainage issues to the site plan review 

stage. It also argues the Appellate Division impermissibly 

substituted its own judgment for that of the Board in deciding 

to grant Mauro’s application as there was sufficient evidence in 

the record to support the Board’s conclusion that Mauro failed 

to make a sufficient showing of hardship. 

Mauro concedes that the Appellate Division improperly 

stated his development plan was subject to site plan review;

however, he maintains that the “misstatement” was dictum and 

does not undermine the heart of its decision. Mauro argues that

the panel’s remand to adopt a resolution granting approval was 

based on the panel’s finding that he met both the positive and 

negative criteria required by the statute.

The Board argues its findings of fact and conclusions of 

law amply support its finding that the applicant failed to 

satisfy his burden of proving the negative criteria. The Board 

contends Mauro failed to provide adequate testimony regarding 

numerous issues related to the variance, including how the 

drainage and recharge system would work and whether the proposed 

structure conflicted with the character of the neighborhood. 

Additionally, the Board maintains that the decision to deny the 

application without prejudice was proper, noting that, given the 

conflicting decisions on the same record, it would be 
15

“fundamentally unfair to deny [d]efendant Mauro the opportunity 

to resubmit his application to the current Board and be heard 

anew” and would deny Mauro due process.

V.

Provisions in a zoning ordinance that control the size and

shape of a lot and the size and location of buildings or other 

structures on a parcel of property are known as bulk or 

dimensional requirements. See N.J.S.A. 40:55D-65(b) 

(authorizing zoning ordinance to regulate bulk, height, 

orientation, and size of buildings and other structures). See 

also Morris Cnty. Fair Hous. Council, supra, 230 N.J. Super at 

353 (noting that “bulk area and yard requirements, density, 

distance between buildings, off-street parking and floor area 

ratio” are not design requirements but ordinance requisites from 

which deviations require variance). Many ordinances dictate a 

minimum amount of frontage required on a public street and

provide that a building permit may not issue to erect any 

building or structure on a lot that does not front a public 

street. N.J.S.A. 40:55D-35. Here, after the applicant agreed 

to improve Willow Drive in accordance with standards prescribed 

by the Board Engineer and the governing body agreed to accept 

Willow Drive as a public street, Mauro applied for a bulk 

variance from the ordinance requiring fifty feet of frontage on 

a public street. We, therefore, commence our discussion with 
16

the standard to be applied by a planning board to an application 

for a bulk variance. 

N.J.S.A. 40:55D-70(c)(1) permits a variance from a bulk or 

dimensional provision of a zoning ordinance, such as frontage, 

when, by reason of exceptional conditions of the property, 

strict application of a bulk or dimensional provision would 

present peculiar and exceptional practical difficulties or 

exceptional hardship to the applicant. Such exceptional 

conditions may include the dimensions of the property, 

topographic conditions, or some other extraordinary or 

exceptional feature unique to the property. Ibid. Undue 

hardship does not include personal hardship to the property 

owner. Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 

590 (2005). Rather, it refers to the particular condition of 

the property. Ibid. Hardship, however, is not synonymous with 

complete inutility due to the land use restriction, Kaufmann v. 

Planning Bd. for Warren Twp., 110 N.J. 551, 561-62 (1988), 

although the inability to use the property for any productive 

use absent a variance often informs the decision to grant a 

variance from bulk requirements, Chirichello v. Zoning Bd. of 

Adjustment of Monmouth Beach, 78 N.J. 544, 557-58 (1979).

An applicant who pursues a variance under N.J.S.A. 40:55D70(c)(1) must establish that the particular conditions of the 

property present a hardship. The efforts made to bring the 
17

property into compliance with the ordinance are factors that must 

be considered. Jock, supra, 184 N.J. at 594; Commons v. Westwood 

Zoning Bd. of Adjustment, 81 N.J. 597, 606 (1980). Those efforts 

may include attempts to acquire additional land or offers to sell 

the nonconforming lot to adjacent property owners. Jock, supra, 

184 N.J. at 594. 

In addition, an applicant for a (c)(1) variance must 

satisfy the negative criteria. Nash v. Bd. of Adjustment of 

Morris Twp., 96 N.J. 97, 102 (1984). The negative criteria 

require proof that the variance will not result in substantial 

detriment to the public good or substantially impair the purpose 

of the zoning plan. Ibid. 

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. The applicant bears the 

burden of proving both the positive and negative criteria.

Nash, supra, 96 N.J. at 106.

For a (c)(2) variance, approval must be rooted in the 

purposes of the zoning ordinance rather than the advancement of 

the purposes of the property owner. Kaufmann, supra, 110 N.J. at 

562-63. Thus, the positive criteria include proof that the 

characteristics of the property present an opportunity to put the 
18

property more in conformity with development plans and advance 

the purposes of zoning. Id. at 563-64. As with the (c)(1) 

variance, the negative criteria include proof that the variance 

would not result in substantial detriment to the public good or 

substantially impair the purpose of the zone plan. Id. at 565.

An application for a bulk or dimensional variance pursuant 

to either N.J.S.A. 40:55D-70(c)(1) or (c)(2) often implicates 

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

40:55D-1 to -163, including to encourage a municipality to guide 

development of land in a manner that will promote the health, 

safety, and welfare of its residents, N.J.S.A. 40:55D-2(a); to 

minimize or control threats to the public safety from “fire, 

flood, . . . and other natural or man-made disasters,” N.J.S.A.

40:55D-2(b); and to provide “adequate light, air, and open 

space,” N.J.S.A. 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). 

In Kaufmann, supra, a planning board granted a variance 

permitting a subdivision of an over-sized lot into two lots 

“marginally insufficient in respect to frontage and side-yard

requirements” but fully consistent with all other bulk 

requirements in the zone. 110 N.J. at 563, 565. The Law 

Division reversed the action of the planning board, and an 
19

appellate panel affirmed. Id. at 556. This Court determined 

that the application presented a situation representative of the 

purpose of the newly-enacted (c)(2) provision because the 

subdivision plan with minor deviations from the bulk requirements 

in the zone permitted two lots harmonious in size with 

neighboring properties when balanced against little, if any, harm 

to the zone plan. Id. at 565. 

A variance from bulk requirements in a zoning ordinance

often arises in the context of an isolated nonconforming lot. 

Frequently, such applications concern an undersized lot. One 

commentator has observed that “[a]n isolated undersized lot is 

almost always entitled to a dimensional variance.” 36 New Jersey 

Practice, Land Use Law § 15.9, at 364 (David J. Frizell) (3d ed. 

2005); see also Jock, supra, 184 N.J. at 575 (noting undue 

hardship due to undersized nature of lot); Harrington Glen, Inc. 

v. Mun. Bd. of Adjustment of Leonia, 52 N.J. 22, 28 (1968) 

(discussing right to relief from zoning ordinance for undersized 

lot). Nonetheless, the applicant must still satisfy the positive 

and negative criteria for either a (c)(1) or (c)(2) variance. 

Site conditions, including access and drainage, are valid 

considerations of a board when the relief requested implicates 

those conditions. In Chirichello, supra, this Court recognized 

that the magnitude of the deviation from the bulk or dimensional 

requirements of the zoning ordinance and the impact on the 
20

zoning plan are often a matter of degree and that a board’s 

consideration of a variance should recognize that fact. 78 N.J.

at 561. We stated:

We have also adverted to the fact that an 

impingement of the zoning restrictions may 

be of varying degrees. The less of an 

impact, the more likely the restriction is 

not that vital to valid public interests. 

Conversely, where the change sought is 

substantial, the applicant will have to 

demonstrate more convincingly that the 

variance will not be contrary to the public 

good and general welfare expressed in the 

ordinance.

[Ibid.] 

In other words, care must be taken to direct the evaluation of a 

request for a bulk variance to those purposes of zoning that are 

actually implicated or triggered by the requested relief. 

However, not every deviation from prescribed bulk standards 

implicates the same concerns. 

Thus, if an applicant seeks a variance from setback 

requirements, traditional zoning concerns such as preservation 

of light, air, and open space may be valid inquiries in an 

assessment of the impact of the requested variance. If an 

applicant seeks a variance from lot coverage requirements, 

drainage may be a valid inquiry in an assessment of the impact 

of the requested variance on the surrounding properties. 

Similarly, a subdivision application that will create additional 

lots and permit intensified development of the property prompts
21

examination of traditional zoning purposes, including light, 

air, open space, access, and drainage. For example, in Field,

supra, the Appellate Division outlined the authority of a board 

or municipal governing body to delve into the details of 

drainage and sanitary sewer facilities in the context of an 

approval of a 396.5 acre tract for a planned unit development 

(PUD). 190 N.J. Super. at 328-29. As proposed, the PUD would 

consist of 1332 townhomes and 1332 garden apartment units, 

commercial development on 19.85 acres, and open space on 99.36 

acres. Id. at 328. It is in that context that the Appellate 

Division stated that

[i]t is evident that a municipality cannot 

guide the use and development of lands in 

this state if fundamental elements of a 

development plan are left unresolved before 

preliminary approval, leaving them instead 

for an unspecified later day. . . . Certain 

elements -– for example, drainage, sewage 

disposal and water supply -– may have such a 

pervasive impact on the public health and 

welfare in the community that they must be 

resolved at least as to feasibility of 

specific proposals or solutions before 

preliminary approval is granted. . . . If 

the applicant fails to provide sufficient 

information on the fundamental elements of 

his plan, preliminary approval should be 

denied. 

[Id. at 332-33.] 

On the other hand, some variances from prescribed bulk 

requirements may not implicate some of the otherwise valid 

zoning purposes advanced by other bulk variances. For example, 
22

a minor deviation from a height restriction has no impact on lot 

coverage and the valid goal of maintaining sufficient 

undeveloped area on a lot to foster light, air, and open space. 

A deviation from prescribed lot frontage may have no impact on 

any valid zoning purpose other than the stated public interest 

in location of all lots on a public street. See Kaufmann, 

supra, 110 N.J. at 564-65 (finding lots with deficient frontage 

not unharmonious with neighboring properties).

Finally, we acknowledge the wide latitude accorded to a 

municipal planning board in the exercise of its delegated 

discretion. A board’s decisions are presumptively valid, and a 

court may not substitute its own judgment for that of the board 

unless there has been a clear abuse of discretion by the board. 

Id. at 558; Davis Enters. v. Karpf, 105 N.J. 476, 485 (1987). 

The party challenging the action of a planning board carries the 

burden of demonstrating that the board acted arbitrarily, 

capriciously, or unreasonably. Smart SMR of N.Y., Inc. v. Fair 

Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998). A board acts 

arbitrarily, capriciously, or unreasonably if its findings of 

fact in support of a grant or denial of a variance are not 

supported by the record, ibid., or if it usurps power reserved 

to the municipal governing body or another duly authorized 

municipal official, Leimann v. Bd. of Adjustment of Cranford, 9 

N.J. 336, 340 (1952). 
23

VI.

Applying those principles, we conclude that Mauro satisfied 

both the positive and negative criteria to obtain a variance 

from the frontage regulations of the zone. In focusing on the 

failure of the applicant to present an engineering plan 

calculated to solve the identified drainage issue on the lot, 

the Board and trial court misperceived the weight to be afforded 

to that factor in evaluating whether a variance from the 

frontage requirements of the zone undermined the zoning plan of 

the Borough. That focus also ignored the authority of the Board 

to impose conditions, such as submission of a satisfactory plan 

to address on-site drainage issues, for issuance of a building 

permit. In addition, the Board’s findings in all critical 

respects lack support in the record.

In its second resolution, the Board found that the improved 

lane still did not afford sufficient access to permit the fire 

department to respond to a fire on the applicant’s property. 

The Board also found that the property is “in a natural wetland 

condition,” as designated by the NJDEP, and that the property 

serves as a drainage collector for surrounding properties. The 

Board cited the absence of engineering data addressing a 

recharge system for the property or the amount of fill required 

or topographic surveys or soil surveys. It, therefore, 

concluded that the application did not promote the appropriate 
24

use of the land, did not secure safety from fire and flood, did

not provide sufficient space for a residential use, and did not 

promote a desirable visual environment or provide adequate 

light, air, and open space. 

The trial court determined that Mauro satisfied his burden 

of proving that the property has an exceptional and unique 

configuration that presents a peculiar and undue hardship to 

him. In doing so, it found that critical findings made by the 

Board in support of its resolution had no support in the record. 

The court accepted as unrebutted that the property would be 

rendered useless without a variance from the frontage 

requirement. The trial court also recognized that the 

improvement of Willow Drive by the applicant would address the 

public safety requirements of health, safety, and welfare. The 

trial court cited the unrefuted testimony of the fire chief that 

fire equipment suitable to fight a fire on the premises could 

gain access to the property by the improved drive and from 

public streets to the north and south of the property. The 

court acknowledged that Mauro’s property meets all other 

requirements of the R-50 zone. Finally, the trial court 

concluded that Mauro had made efforts to bring the property into 

conformity by offering to buy adjacent property or by offering 

to sell his property to adjacent owners. 
25

The Appellate Division determined that the trial court did 

not exceed its authority in its review of the Board’s findings 

regarding the positive criteria. The panel agreed that the 

critical findings undergirding the Board’s evaluation of Mauro’s 

evidence concerning the configuration of the lot, the hardship 

presented by the physical characteristics of the lot, and the 

furtherance of the purposes of the zoning plan by the requested 

relief were not supported by the record. Our review of the 

record underscores the correctness of the determination by the 

Appellate Division and the trial court that the Board’s findings 

of fact regarding the applicant’s satisfaction of the positive 

criteria were not supported by the record. 

To be sure, the deviation from the frontage provision in 

the ordinance is substantial in this case. The size of the 

deviation, however, illustrates the unique and exceptional 

character of the property. The magnitude of the discrepancy 

between the required frontage and the actual frontage of the 

property also informs the critical question of hardship because,

without a variance, the property cannot be developed for 

residential use, the only permitted use in the zone. There is 

no suggestion in the record of any other permitted use of the

property in its current condition. Nor is there any suggestion 

that the applicant did not make a good faith effort to cure the 

nonconformity by acquiring adjacent property or to alleviate the 
26

need for variance relief by selling his property to adjacent 

property owners. 

The Board’s findings also disregarded the obligation 

imposed on the applicant by the municipal governing body to 

improve Willow Drive. Pursuant to the terms of the January 17, 

2006 resolution, any development of the property must be 

preceded by improvement of Willow Drive in accordance with 

standards that permit the Borough to accept it as a public 

street. The satisfaction of that antecedent act addresses in 

part the ability of fire apparatus to gain access to the site to

fight a fire or for any other emergency situation. Yet, the 

Board ignored the improvement of the drive, the testimony of the 

fire chief and his assistant that the fire company from the 

Borough and neighboring towns could adequately respond to any 

on-site emergency, and the plans for the house to be constructed 

on the subject property incorporating a fire suppression system

and fire retardant materials.

The Board’s findings that development of the property would

not provide adequate light, air, or open space disregard the 

fact that the property conformed in all respects, except 

frontage, to the zoning ordinance for single-family homes in the 

R-50 zone. Presumably, the Borough has already determined that 

a residence constructed on a lot the size of the applicant’s 

meets all setback and height requirements and promotes and 
27

provides adequate light, air, and open space, and a desirable 

visual environment. 

The trial court determined, however, that the applicant 

failed to provide adequate information to address drainage and 

water displacement. According to the court, that omission 

justified a finding that the applicant failed to carry his 

burden that the reduced frontage would not undermine the zoning 

plan of the community. The Appellate Division determined that 

the applicant had no obligation to convince the Board that a 

drainage plan existed. The panel observed that drainage is 

typically a matter for site plan review and the bulk variance 

requested here could be conditioned on later approval of a 

proper drainage plan. 

The Board and the objector contend that the Appellate 

Division founded its decision on a misstatement of the law. 

They emphasize that, contrary to the panel’s statement, Mauro is 

not required to seek site plan review for development of a 

single lot. That misstatement, however, does not undercut the 

validity of the panel’s opinion, because a property owner who 

seeks to construct a house on a residential lot must apply for a 

building permit. See N.J.S.A. 52:27D-130. The building 

official, in turn, is required to determine whether the building 

plan conforms to all requirements to construct a home, including 

a proper drainage plan and proper elevation to minimize the 
28

impact of flooding.2 See N.J.S.A. 52:27D-131(a); N.J.A.C. 5:23-

2.15A.

We, as the Appellate Division did, determine from our 

review of the record that the ultimate finding that the proposed 

variance and subsequent development would result in substantial 

detriment to the public good or zone plan is not supported by 

the record. For example, the Board found that the property is 

in a natural wetland condition but disregarded the issuance of a 

general permit by the NJDEP to bring fill onto the property. 

The Board’s findings also fail to demonstrate how a ten-foot 

 

2 The trial court’s reliance on Field and Morris County Fair 

Housing Council may have contributed to the appellate panel’s

misstatement about the availability of site plan review. In 

Field, supra, an application for a PUD on almost 400 acres 

justified the board’s close examination of sewage and drainage. 

190 N.J. Super. at 328, 333-34. Such close attention is hardly 

applicable to the development of a lot in a residential zone 

that conforms in all respects to local zoning requirements but 

for the lack of sufficient frontage on a public street.

Similarly, in Morris County Fair Housing Council, supra,

the Appellate Division recognized that the appearance of a house 

to be built on a nonconforming lot was a legitimate concern to a 

board when considering whether to grant a “c” variance. 230 

N.J. Super. at 357. Yet, the panel also determined that 

appearance was irrelevant when the relief requested, i.e., a 

bridle path and conservation easement in place of a fifty-foot 

landscaped buffer, would effectively screen the proposed 

development in a different manner. Id. at 350, 357-58. In 

other words, a board cannot use the occasion of a request for a 

waiver of a site plan regulation or a request for a variance 

from a density provision of an ordinance to delve into areas not 

implicated by the application or which can be adequately 

addressed in another fashion. 
29

frontage rather than a fifty-foot frontage would constitute a 

substantial detriment to the zone plan.

Here, the record reveals that the Board utilized the 

occasion of a request for a variance from a density standard to 

delve into other concerns that can be adequately addressed in 

another fashion. It is not that drainage and the risk of 

flooding are not legitimate zoning concerns. Mauro’s plan, 

however, is not a development proposal that would add many more 

units to an existing space. The property is zoned for singlefamily residential use and conforms in all respects to the 

zoning standards for the zone but for the required frontage on a 

public street. Except for that deficiency, Mauro could apply 

for a building permit. It would then be incumbent on the 

municipal building official to determine if the plans submitted 

by the property owner conform with building standards in the 

town, including access to water, sewer, stormwater drainage, 

electric, and gas. It is in that context the municipal building 

official could address whether the soil would support the 

proposed foundation and the impact on surrounding properties of 

the fill authorized by the general permit that the NJDEP issued. 

It is in that context the municipal building official also may

determine whether the proposed plans conform to other municipal 

building standards, such as any elevation standards adopted by 

the municipal governing body for new or substantially damaged 
30

residences in the town. Recognizing the authority of the 

municipal building official, the Board could have conditioned 

the variance on the issuance of a building permit. See N.J.S.A.

40:55D-18. In no event, however, does the record support the 

ultimate conclusion that the applicant failed to establish the 

positive or negative criteria for a (c)(1) or (c)(2) variance.

VII. 

Finally, we address whether dismissal of the complaint in 

lieu of prerogative writs should have been without prejudice. 

After finding that the applicant established the positive 

criteria for the variance, the trial court concluded that the 

applicant did not satisfy the negative criteria, primarily 

citing the inadequacy of the evidence adduced by the applicant 

concerning drainage on the property. The trial court, however,

affirmed that denial without prejudice, thereby permitting the 

applicant to return to the Board with the same application on 

the same or additional evidence. We discern from the record 

that the trial judge regretted the terms of the original remand 

order that restricted all parties from supplementing the record 

before the new vote and preventing all parties from addressing 

the issue of drainage in greater detail. In doing so, however, 

the trial judge side-stepped the salutary rule that bars 

resubmission of the same proposal following a dispositive ruling 

by the Board. 
31

The principle of res judicata has evolved principally in 

the judicial system to prevent the same claims involving the 

same parties from being filed and brought before a court 

repeatedly. Velasquez v. Franz, 123 N.J. 498, 505 (1991). It 

is a salutary rule that respects the finality of the initial 

decision, limits the burden of litigation on adverse parties,

and removes unnecessary litigation from the courts. City of 

Hackensack v. Winner, 82 N.J. 1, 32 (1980). “[A]n adjudicative 

decision of an administrative agency ‘should be accorded the 

same finality.’” Bressman v. Gash, 131 N.J. 517, 526 (1993)

(quoting Restatement (Second) of Judgments § 83 cmt. b (1982));

see also Russell v. Bd. of Adjustment of Tenafly, 31 N.J. 58, 65 

(1959). 

If an applicant files an application similar or 

substantially similar to a prior application, the application 

involves the same parties or parties in privity with them, there 

are no substantial changes in the current application or 

conditions affecting the property from the prior application, 

there was a prior adjudication on the merits of the application, 

and both applications seek the same relief, the later 

application may be barred. It is for the Board to make that

determination in the first instance. Bressman, supra, 131 N.J.

at 527; Russell, supra, 31 N.J. at 67. By permitting the 

applicant to return to the Board with the same application, the 
32

trial judge ignored the salutary purposes of the principle of 

res judicata, usurped the role of the Board to determine if it 

should hear the same application involving the same parties once 

again, and deprived all parties of the benefits of a final 

decision. In this case, it was incumbent on the judge to 

affirm, reverse, or modify the decision of the Board, not to 

prolong an already protracted proceeding. 

VIII. 

The judgment of the Appellate Division is affirmed as 

modified. 

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, HOENS, and 

PATTERSON; and JUDGE RODRÍGUEZ (temporarily assigned) join in 

JUDGE CUFF’s opinion.
SUPREME COURT OF NEW JERSEY

NO. A-52 SEPTEMBER TERM 2011

ON CERTIFICATION TO Appellate Division, Superior Court

TEN STARY DOM PARTNERSHIP,

Plaintiff-Appellant,

v.

T. BRENT MAURO and

THE BOROUGH OF BAY HEAD

PLANNING BOARD,

Defendants-Respondents.

DECIDED August 5, 2013

Chief Justice Rabner PRESIDING

OPINION BY Judge Cuff (temporarily assigned) 

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY 

CHECKLIST AFFIRMED AS 

MODIFIED

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE HOENS X

JUSTICE PATTERSON X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) X

TOTALS 7