On appeal from the Superior Court, Law Division, Morris County.
Judges Dreier, Ashbey and Landau. The opinion of the Court was delivered by Ashbey, J.A.D.
Plaintiffs, adjacent landowners, appeal from a prerogative writs judgment upholding a Harding Township Board of Adjustment (Board) grant of an N.J.S.A. 40:55D-70c(1) variance to defendants Thomas and Elizabeth Walker.*fn1 The variance permitted the Walkers to rebuild the wooden part of a barn 42 feet from plaintiffs' driveway, just across the property line, where the zoning ordinance required a 100-foot distance. Following argument on plaintiffs' prerogative writs challenge, the judge ruled that the Board's decision was not arbitrary or capricious and complied with relevant law.
On appeal, plaintiffs claim that the prerogative writs judge erroneously interpreted the requirements of N.J.S.A. 40:55D-70 and erroneously permitted the Board to ignore the expert testimony of Michael F. Kauker, plaintiffs' expert planner. Plaintiffs urge that the Board's resolution did not justify the variance, and the court should have disregarded the resolution which was improperly influenced by individual board members, whose reasoning reflected an erroneous understanding of the applicable law.
The site of the proposed barn was the foundation, including basement walls, of a barn originally built in 1920, preexisting the zoning ordinance. The 1990 variance was not the first that had been granted for the rebuilding, another variance having been issued in 1965 to rebuild the barn on the old foundation.*fn2 The Walkers had delayed in applying for a building permit. Having received a permit in 1972; reissued in 1973, they again
delayed, not starting to build until 1989. A stop-work order was issued by the municipal construction official. The Walkers again applied for a variance. The zoning board held hearings, inspected the site and unanimously voted in favor.*fn3
The area surrounding both plaintiffs' and defendants' lands was described as rural. The Walker property consisted of a 9.824-acre tract located in the township's R-1 Zone, in which single-family dwellings and accessory buildings are permitted on lots of at least three acres with the minimum 100-foot setback on all sides.*fn4 Both plaintiffs' and defendants' properties are accessed by a rural road bordered by meadow and pasture land. Between their two substantial tracts was a heavily-wooded undeveloped 3-acre tract. Plaintiffs' residence, on the "flag" portion of their flag lot, was on the other side of this vacant wooded lot, as the Board found, over 1,000 feet from the old barn foundation. The driveway to plaintiffs' house was a 50-foot-wide right-of-way, the "pole" of the flag lot, adjoining the length of the Walker property.*fn5 That driveway was lined on the right with what was characterized as a "hedgerow," and the owners of the land adjoining plaintiffs' driveway on the other side had no opposition to the variance.
On the Walker property there was a main house with a nearby swimming pool, a smaller residence occupied by Thomas Walker, Jr., and an old shed which was near the remains of the old barn, also close to the driveway. The shed was then being
used to house Walker's two horses.*fn6 The old barn foundation was actually 46 feet from the "pole" of plaintiff's flag lot.*fn7
Walker, who had lived on the property at various times all of his life, testified that the old barn foundation, which went 10 feet into the ground on one side, and 8 feet on the other, was bottomed by concrete. In the 1940's, the foundation had been covered by a wooden floor. Ultimately, rotting floor boards made potential falls to the concrete below a risk. In the 1950's, therefore, his parents had dismantled the upper, wooden, part of the barn, preserving the foundation and basement, on which they intended to rebuild when finances permitted.
The existing structure, apparently, also included original stairs. The 1989 Walker plan was to use the existing basement for the storage of tools and farm equipment and the ground floor for Walkers' two horses, replacing Walker's stabling them in the shed. Walker testified that the existing foundation area was of sufficient depth to accommodate a full-height basement room, and, to that end, before they were prevented, the Walkers had cut a ramp into the side of the foundation, also cutting into the foundation's surrounding berm.*fn8
The Walker parents had saved pre-existing horse stalls from their residence which had once been a carriage house. They proposed to place them in the reconstructed barn. Their size required building a first floor overhang of four feet, making it necessary for them to seek a variance for a set back of 42 feet,
rather than the 46 feet which was the distance from foundation to property line.*fn9
Walker testified that $15,000 would be saved by using the existing foundation, $5,000 in excavating costs and $10,000 to build a comparable foundation elsewhere in the property. Walker said the old site was next to an existing water line which came from the pump house, apparently also near plaintiff's driveway. In addition, using the old foundation would assist him in being able to clean up around the foundation and around the shed, which he could then fix up.
Walker said that he had lived 40 years in Harding Township, and that it was common for out-buildings to be located within 100 feet of a property line, giving five examples, which he characterized as neighboring properties. Walker said he would shield plaintiffs' driveway with evergreen trees, some of which had already been planted, replacing the brambles which had been allowed to grow in order to discourage approach.
Plaintiff, Richard Hawrylo, testified that he opposed the application since it would detract from the appearance of "spaciousness" to those driving up his driveway, there already being one nonconforming structure along the way (the shed). He said the proposed building was "out of character for the area."
Plaintiff also offered the testimony of professional planner Michael Kauker, who characterized the area of construction as a "lightly wooded glade." He told the Board that there was no reason the proposed barn could not be built within a conforming location. Kauker acknowledged that the location of the barn, considering the intervening woodlands, would preclude "visual access" from plaintiffs' house. He was unfamiliar with details of surrounding properties and had never looked at the master
plan. In his opinion the foundation was not a unique feature of the property because it predated ...