SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2963-16T4

LARRY HOLLOWAY,

Plaintiff-Appellant,

v.

TOWNSHIP OF JACKSON; and

TOWNSHIP OF JACKSON ZONING 

BOARD OF ADJUSTMENT,

Defendants-Respondents.

_____________________________________________

Argued June 28, 2018 – Decided July 16, 2018

Before Judges Yannotti and Haas.

On appeal from Superior Court of New Jersey, 

Law Division, Ocean County, Docket No. L-0819-

14.

Peter H. Wegener argued the cause for 

appellant (Bathgate, Wegener & Wolf, PC,

attorneys; Peter H. Wegener, on the briefs).

Robin La Bue argued the cause for respondent 

Township of Jackson (Gilmore & Monahan, PA, 

attorneys; Robin La Bue, on the brief).

Sean D. Gertner argued the cause for 

respondent Township of Jackson Zoning Board 

of Adjustment (Gertner & Gertner, LLC, 

attorneys; Sean D. Gertner, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
2 A-2963-16T4

PER CURIAM

Plaintiff Larry Holloway appeals from an order entered by the 

Law Division on February 2, 2017, which rejected his challenge to 

the validity of a zoning ordinance adopted by the Township of 

Jackson (Township), and affirmed the partial denial by the 

Township's Zoning Board of Adjustment (Board) of his variance 

application. We affirm. 

I.

Plaintiff is the owner of approximately 17.4 acres of land

in the Township. Plaintiff has owned the property for more than 

twenty-one years. Prior to 2001, the property was placed in the

R-1 zone, in which one residential unit per acre is permitted. In 

2001, the Township amended the zoning ordinance and placed

plaintiff's property in the R-3 zone, where one residential unit

per three acres is permitted. 

It is undisputed that between 1986 and 2002, properties in 

the area surrounding plaintiff's property were either developed 

in conformity with the previous R-1 density standards or the 

standards for the R-40 zone, in which residential lots of 40,000 

square feet (slightly less than one acre) are permitted. According 

to plaintiff, development of nearby tracts was constrained by 

certain environmental regulations. 
3 A-2963-16T4

In 2013, plaintiff applied to the Board for a density variance 

to permit the development of his property with thirteen residential 

lots, plus one additional lot for storm water management. The 

Township's R-3 zoning restrictions only permit five residential 

lots on plaintiff's property. The density and certain access issues 

were to be addressed separately.

On November 6 and December 18, 2013, the Board conducted a 

public hearing on the density issues. On February 5, 2014, the 

Board adopted a resolution, which denied plaintiff's application 

for thirteen residential lots and one drainage lot, but allowed 

plaintiff to develop the property with seven residential lots. 

Thereafter, plaintiff filed a complaint in the trial court 

seeking a determination that the application of R-3 zoning 

restrictions to his property was invalid. He also sought a judgment 

reversing the Board's partial denial of his application for a 

density variance. 

The trial court filed a written opinion finding that as 

applied to plaintiff's property, the ordinance is valid. The court 

also found that the Board had properly exercised its discretion 

by granting plaintiff's variance request in part. The court 

concluded the Board's decision was not arbitrary, capricious, or 

unreasonable. The court memorialized its opinion in an order dated 

February 2, 2017. This appeal followed. 
4 A-2963-16T4

II.

On appeal, plaintiff argues the trial court erred by finding 

that the density restrictions for the Township's R-3 zone are 

valid as applied to his property. We disagree. 

Municipal ordinances are presumed to be valid, and the

presumption of validity may not be overcome unless the ordinance 

is "clearly arbitrary, capricious or unreasonable, or plainly 

contrary to fundamental principles of zoning or the [zoning] 

statute." Riggs v. Long Beach Twp., 109 N.J. 601, 610-11 (1988) 

(quoting Bow & Arrow Manor v. Town of West Orange, 63 N.J. 335, 

343 (1973)). The party challenging the ordinance "bears the burden 

of overcoming the presumption." Id. at 611 (citing Ward v. 

Montgomery Twp., 28 N.J. 529, 539 (1959); La Rue v. East Brunswick, 

68 N.J. Super. 435, 454 (App. Div. 1961)). 

"Courts should not question the wisdom of an ordinance, and 

if the ordinance is debatable, it should be upheld." Ibid. (citing 

Bow & Arrow Manor, 63 N.J. at 343). Although the court's role in 

reviewing the validity of an ordinance is "circumscribed," the 

court may declare a zoning ordinance invalid if it does not meet 

certain criteria. Ibid. (citing Taxpayer Ass'n of Weymouth Twp. 

v. Weymouth Twp., 80 N.J. 6, 21 (1976)). 

The zoning ordinance must advance one of the purposes of the 

Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. Ibid.
5 A-2963-16T4

(citing Weymouth Twp., 80 N.J. at 21). The ordinance must be 

"substantially consistent" with the land use and housing elements 

of the municipality's master plan, unless the statutory 

requirements are otherwise satisfied. Ibid. The ordinance also 

must comply with the constitutional limits on the zoning power. 

Ibid. Moreover, the ordinance must be adopted in accordance with 

applicable procedural requirements. Id. at 612 (citations 

omitted). 

In its opinion, the trial court found that plaintiff failed 

to overcome the ordinance's presumption of validity. The court 

noted that under N.J.S.A. 40:55D-2, a municipality may enact a 

zoning ordinance:

a. [t]o encourage municipal action to guide 

the appropriate use or development of all 

lands in this State, in a manner which will 

promote the public health, safety, morals, and 

general welfare;

. . . .

c. [t]o provide adequate light, air and open 

space;

. . . .

e. [t]o promote the establishment of 

appropriate population densities and 

concentrations that will contribute to the 

well-being of persons, neighborhoods, 

communities, and regions and preservation of 

the environment;

. . . . 
6 A-2963-16T4

g. [t]o provide sufficient space in 

appropriate locations for a variety of 

agricultural, residential, recreational, 

commercial and industrial uses and open space, 

both public and private, according to their 

respective environmental requirements in 

order to meet the needs of all New Jersey 

citizens; 

. . . .

j. [t]o promote the conservation of historic 

sites and districts, open space, energy 

resources and valuable natural resources in 

the State and to prevent urban sprawl and 

degradation of the environment through 

improper use of land;

. . . .

p. [t]o enable municipalities the flexibility 

to offer alternatives to traditional 

development, through the use of equitable and 

effective planning tools including 

clustering, transferring development rights, 

and lot-size averaging in order to concentrate 

development in areas where growth can best be 

accommodated and maximized while preserving 

agricultural lands, open space, and historic 

sites . . . .

The court found the Township changed the density restrictions 

in the subject area to achieve a "better balance" of residential, 

commercial, and industrial development. The court determined that

a governing body has the discretion to reduce residential densities 

in an effort to direct commercial or industrial investments. The 

record supports the trial court's determination that the ordinance 
7 A-2963-16T4

advances one or more of the objectives set forth in N.J.S.A. 

40:55D-2.

Plaintiff argues, however, that the purpose of the density 

change was to protect the environment and to discourage development 

in flood hazard and wetland areas, areas with soils having poor 

drainage characteristics, and environmentally-sensitive areas. 

Plaintiff contends his property does not present any of these 

concerns. 

However, plaintiff did not present any evidence in the trial 

court showing that its property does not have the same or similar 

environmental constraints as other affected properties. Notably, 

in its 2001 master plan, the Township did not state that every 

parcel affected by the density change had environmental 

constraints that required the downsizing. 

Moreover, the zoning change was not driven solely by the need 

to protect the environment. The change was adopted in response to 

the rapid residential development of the municipality. The change

also was adopted to create more open space, achieve a better 

balance of residential, commercial, and industrial development, 

and establish appropriate population densities. As the trial court 

recognized, decreasing the level of residential development in the 

areas affected by the change advances these goals, which are 

permissible objectives under the MLUL.
8 A-2963-16T4

In support of his argument that application of the density 

change to his property is arbitrary and unreasonable, plaintiff 

relies upon Pheasant Bridge Corp. v. Township of Warren, 169 N.J. 

282 (1999). In that case, the plaintiff purchased land which was 

zoned to permit single-family homes on lots of at least one-andone-half acres. Id. at 286. The municipality changed the zoning 

ordinance and increased the minimum lot size to six acres. Id. at 

287. The plaintiff challenged the ordinance, and the trial court 

found that the increase in the minimum lot size was justified by 

a "combination of environmental factors including flood plain, 

steep slopes, seasonable high water, and wetlands" throughout the 

zone. Id. at 288. 

We held the ordinance was facially valid, but we remanded the 

matter to the trial court to determine whether application of the 

ordinance to the plaintiff's property resulted in an uncompensated 

taking of the plaintiff's property. Ibid. The Supreme Court 

ultimately held that the application of the ordinance was 

arbitrary, capricious, and unreasonable because the environmental 

concerns that justified passage of the zoning change did not apply 

to the plaintiff's property. Id. at 292-93. 

 Plaintiff's reliance upon Pheasant Bridge Corp. is misplaced. 

As stated previously, the Township's zoning change was not based 

solely upon environmental constraints or concerns. The zoning 
9 A-2963-16T4

change also was adopted to address the rapid residential 

development of the Township; create more open space; and achieve

a better balance of residential, commercial, and industrial 

development. Therefore, application of the zoning change to 

plaintiff's property was not arbitrary, capricious, or 

unreasonable.

Plaintiff further argues for the first time on appeal that

as a result of the "grandfather clause" that the Township adopted 

in 2009, the density provisions of the zoning ordinance is 

arbitrary, discriminatory, and violates the uniformity requirement 

of N.J.S.A. 40:55D-62. The Township's Code states in relevant part 

that:

Any structure conforming as to use in Zones

R-2, R-3 or R-5 that has received a 

certificate of occupancy or building permit 

or a structure conforming on a lot that has

received preliminary subdivision approval as 

of the effective date of this Ordinance shall 

remain conforming under the regulations 

existing as of the date of such certificate 

of occupancy, building permit or approval.

[Twp. of Jackson, N.J., Code § 244-46(E).]

We will not address an issue raised for the first time on 

appeal, unless the issue pertains to the trial court's jurisdiction 

or involves a matter of great public concern. Neider v. Royal 

Indemn. Ins. Co., 62 N.J. 229, 234 (1973). The claim that the 

relevant provisions of the Township's ordinance violate the MLUL's 
10 A-2963-16T4

conformity requirement does not involve the court's jurisdiction 

and it is not a matter of general public interest. Therefore, we 

will not address this issue.

III.

Plaintiff further argues that the Board's decision to deny 

in part his variance application is arbitrary, capricious, and 

unreasonable. 

We note initially that because of their "peculiar knowledge 

of local conditions," zoning boards "must be allowed wide latitude 

in the exercise of delegated discretion." Price v. Himeji, LLC, 

214 N.J. 263, 284 (2013) (quoting Kramer v. Bd. of Adjustment, 45 

N.J. 268, 296 (1965)). The decisions of zoning boards "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." Ibid. (citing Cell S. of N.J., Inc. v. Zoning Bd. 

of Adjustment, 172 N.J. 75, 81 (2002)). The party challenging a

zoning board's decision must show that it was "arbitrary, 

capricious, or unreasonable." Ibid. (quoting Kramer, 45 N.J. at 

296). 

Here, plaintiff sought a variance under N.J.S.A. 40:55D70(d)(5), which authorizes a zoning board "[i]n particular cases 

for special reasons" to grant a variance allowing an increase in 

the "permitted density" under the zoning ordinance. To establish 
11 A-2963-16T4

"special reasons" for a density variance, the so-called "positive 

criteria," the applicant must show "the site will accommodate the 

problems associated with [a greater density] than permitted by the 

ordinance." Grubbs v. Slothower, 389 N.J. Super. 377, 389 (App. 

Div. 2007) (alteration in original) (quoting Randolph Town Ctr. 

Assocs. v. Twp. of Randolph, 324 N.J. Super. 412, 417 (App. Div. 

1999)). The applicant is required to establish "that despite the 

proposed increase in density above the zone's restrictions," the 

project will nevertheless serve "one or more of the purposes of 

zoning and was consistent with the overall goals of the MLUL." 

Ibid.

In addition, the applicant must establish the so-called 

"negative criteria," which requires a showing that the variance 

"can be granted without 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. The party 

seeking the variance must "demonstrate that the increase in density 

would not have a more detrimental [e]ffect on the neighborhood 

than construction of the project in a manner consistent with the 

zone's restrictions." Grubbs, 389 N.J. Super. at 390. 

In this matter, the Board found that plaintiff had satisfied 

the positive and negative criteria for issuance of a density 

variance for seven residential lots. At the public hearing, 
12 A-2963-16T4

plaintiff presented testimony from an engineer, who opined that 

the soils on-site are consistent with the soils of the surrounding 

developed lots, and that drainage is good and suitable for 

development. Plaintiff also indicated that he would utilize 

advanced state-of-the art septic systems, which the Township's

engineer had endorsed. The Board determined, however, that a 

variance should only be granted for seven residential lots.

On appeal, plaintiff argues that the Board essentially 

acknowledged that he had established the positive and negative 

criteria for the development of thirteen residential lots and the 

additional lot for storm water management. We disagree. The Board 

expressly found that plaintiff had satisfied the positive and 

negative criteria for a density variance only with regard to an 

increase in density from five to seven lots. The Board never found 

that plaintiff satisfied the positive and negative criteria for 

thirteen residential lots and a lot for drainage. 

Plaintiff further argues that the Board improperly denied his

application for thirteen residential lots based in part on access 

issues, which were severed for further review. He also contends 

there is nothing in the record to support the Board's finding that 

the property cannot handle the increased density he has proposed.

Again, we disagree.
13 A-2963-16T4

The record shows that plaintiff gains access to his property 

by means of a twenty-five-foot-wide unimproved dirt and gravel 

path known as Cerrina Road. In a separate action, plaintiff sought 

a declaration that the path was a public road. The trial court in 

that case found that the path was not a dedicated public road, but 

rather an unimproved access easement. We affirmed the trial court's 

determination. Holloway v. McManus, No. A-4804-15 (App. Div. Sept. 

11, 2017) (slip op. at 2).

Although further review of the access issues was 

contemplated, that did not preclude the Board from considering 

access in deciding whether a density variance should issue allowing 

thirteen residential lots on plaintiff's property. The Board found

that the unimproved private access easement would not support the 

number of trips that would be generated by plaintiff's proposed 

development. 

In its decision, the trial court determined that the record 

supported the Board's findings that plaintiff had met the positive 

and negative criteria for a density variance allowing seven 

residential lots on plaintiff's property. The court wrote that the 

Board's decision was reasonably based in part upon the fact that 

the land-locked parcel was accessible only by a private right of 

way, "which if developed would not meet the full development 

standards for a publically dedicated roadway." The court found 
14 A-2963-16T4

that the Board had properly exercised its discretion in granting 

plaintiff's application in part. There is sufficient evidence in 

the record to support the court's findings.

Affirmed.