On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2072-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Sabatino.
Plaintiff Vauxhall Associates ("Vauxhall") sought to subdivide a vacant so-called "flag lot" that it owns in Manalapan Township. To proceed with the subdivision, Vauxhall applied to defendant, the Manalapan Planning Board ("the Board"), for site plan approval and certain variances. After the Board rejected Vauxhall's application, plaintiff brought an action in lieu of prerogative writs in the Law Division. On March 3, 2006, the Law Division reversed the Board's decision, finding that the Board had misinterpreted its local ordinance concerning flag lots and had misapplied them to Vauxhall.
The Board now appeals the Law Division's March 3, 2006 order. We affirm the order in part, as it relates to the flag lot ordinance. However, we remand the matter to the Board for a final determination of unsettled issues concerning a cul-de-sac proposed by Vauxhall for one of the two lots to be created by the subdivision.
Vauxhall is a partnership comprised of Michael Sosinski, his brother John Sosinski, and his former business partner and continuing partner in the subject property, Richard Maser. Michael Sosinski is a professional engineer and planner. Since November 1998, Vauxhall has owned the subject property, which is a 7.9 acre parcel in Manalapan designated as Block 82, Lot 7.01.
As Michael Sosinski recounted in his testimony before the Board, the site was originally two narrow parcels 100 feet wide, each fronting on Oakland Mills Road and running back over 2,000 feet to the Manalapan Brook. In 1986, a dwelling on the site and a portion of the surrounding land, now Lot 8.01, was separated into a 150-foot wide, 536-foot deep rectangular parcel fronting on Oakland Mills Road. The remaining land, the property now in question, created a flag lot. The "stem" or "pole" of the flag lot consists of 50 feet of frontage on Oakland Mills Road extending back 536 feet. At that point, the "flag" portion of Lot 7.01 begins, as the parcel widens from 50 feet to nearly 200 feet and then extends back almost 1,600 feet to the Manalapan Brook.
The proposed subdivision would truncate the front of Lot 7.01 adjacent to Oakland Mills Road, creating a 3.3 acre parcel with, in essence, a shorter flag. The front parcel, proposed Lot 7.02, would continue to have access to Oakland Mills Road through the unaltered stem of the flag. The remaining portion, proposed Lot 7.03, would be a rectangular 4.4 acre parcel. That rear parcel would no longer have access to Oakland Mills Road through the flag stem. Instead, Lot 7.03 would be connected to Beagle Drive, a short dead-end street terminating at the property's northern border. Beagle Drive was created through the development of a different subdivision in the late 1980s and early 1990s. Vauxhall's engineer testified that, unless a culde-sac were built, Lot 7.03 would have 40.87 feet of frontage along Beagle Drive to the north.
The subject property is currently a wooded and vacant parcel within the township's "R-R" (Rural Residential) zoning district. It is bordered by Oakland Mills Road to the west, by an existing development (and by the present end of Beagle Drive) to the north, by Manalapan Brook to the east and an undeveloped municipally-owned tract to the south. The two lots to be created by the proposed subdivision each comply with the R-R zone's minimum lot size of 80,000 square feet, or 1.84 acres. The property is in an area generally considered as environmentally sensitive, and certain portions of it near the Manalapan Brook are within a conservation easement.
Vauxhall proposed to build one single-family home on each of the subdivided lots. Each home would be serviced by a private well and septic system. The plans also included the construction of dry wells, rather than a detention basin, so as to reduce land disturbance and minimize any increase in storm hazards.
Vauxhall initially applied to the Board for site plan approval in September 2004. The application was first presented for public discussion in October 2004. Additional Board hearings were conducted on January 13 and March 10, 2005.
A major concern discussed at the hearings was access. Vauxhall proposed that access to Lot 7.02, the shortened flag lot, would be through the "stem" of the flag, using an existing access road connecting to Oakland Mills Road. Vauxhall further proposed that access to Lot 7.03 would be from Beagle Drive, which presently terminates by the parcel. In this latter regard, Vauxhall presented plans for a bulb-shaped cul-de-sac located at the end of Beagle Drive, which could connect to new Lot 7.03. Vauxhall contended that such a cul-de-sac would eliminate the need for a variance from Section 95-5.1 of the zoning ordinance, which otherwise requires lot frontage of two hundred feet.
However, Vauxhall's engineer and planning experts, as well as Michael Sosinski, opined to the Board that to build such a cul-de-sac just for one house would not substantially increase the safety of the neighborhood, would cause a significant amount of land disturbance, and would create an ongoing need for drainage maintenance. Accordingly, Vauxhall suggested that the cul-de-sac be shown only on paper and not be constructed. The township engineer agreed that it was not necessary, at least from an engineering perspective, to build such a cul-de-sac. He recommended that the Board approve Vauxhall's application, and determine that the building of the cul-de-sac was unnecessary. In that event, the land upon which a cul-de-sac would have been built could be dedicated to the township for the frontage requirement. However, because the Board did not wish to discuss these access options for Lot 7.03 with Vauxhall without first addressing the viability of the modified flag lot on Lot 7.02, the plans that Vauxhall submitted for site plan approval included the construction of the cul-de-sac.
The Board hearings also considered the site plan's proposed acre-and-a-half conservation easement, connecting the Manalapan Brook to the township's nearby parcel. Michael Sosinski testified that the property dedicated to such an easement would be "walkable," as it has slopes no higher than ten percent. As proposed, however, the easement would not be accessible from the cul-de-sac.
Several objectors from the neighborhood, and counsel for such objectors, spoke out at the Board hearings against the proposed subdivision. The objecting neighbors noted that the parcel is near a watershed, and argued that development near the watershed should be minimal. They further argued that a public reason to allow the development had not been shown. They also raised concerns about the public need to preserve open space, drainage issues, aesthetics, trash pickup and snow removal.
After its third and final meeting on March 10, 2005, the Board denied Vauxhall's application. The primary stated reason for the denial was Manalapan's flag lot ordinance, Section 95- 7.43B, a provision which, by its general terms, disallows flag lots on more than ten percent of the lots in a subdivision. Because one of the two lots in the proposed new subdivision, Lot 7.02, would be a flag lot, the Board reasoned that the subdivision would violate the ordinance's ten percent cap because fifty percent of its lots would be flag lots.
The Board rejected Vauxhall's argument that Section 95-7.43B is inapplicable because the subdivision would not increase the number of flag lots on the site. The Board further rejected Vauxhall's alternative request for a variance from the strict enforcement of Section 95-7.43B. In the course of its analysis, the Board's March 10, 2005 resolution noted that "[t]he existing flag lot was created by a previous subdivision . . . and is currently a single buildable lot which conforms to all [d]evelopment [r]egulations of [the] Township . . . ." The Board further determined that Vauxhall has failed to establish sufficient hardship under N.J.S.A. 40:55D-70c(1) for a variance, because the property could still accommodate a single family home, and "the only hardship to the applicant would be the economic hardship of not getting an additional building lot." Moreover, the Board determined that Vauxhall had not proven the requisite positive criteria for a variance under N.J.S.A. 40:55D-70c(2), because the subdivision "is of no benefit to neighbors, the community at large, or any other party other than to the applicant."
To some extent, the resolution also addressed the proposed cul-de-sac, summarizing the strong opposition from neighbors about its environmental impact. However, because the Board's denial of a variance from the flag-lot provision, Section 95-7.43B, nullified Vauxhall's application, the Board ultimately did not reach the question of whether a cul-de-sac would satisfy the frontage requirements of Section 95-5.1 and, if so, whether the cul-de-sac should be built or instead should remain as an un-constructed "paper cul-de-sac." As the Board's resolution stated:
The Board finds that [as to Lot 7.03] Section 95-5.1 . . . requires lot frontage of 200 [feet] where 50.01 [feet]*fn1 exists. The Board finds that Beagle [Drive] currently has insufficient frontage to meet this requirement and the applicant would require either an additional variance or the applicant would have to increase frontage on Beagle Drive. The applicant proposed to eliminate the deficient frontage by the construction of a cul-de-sac on Beagle Drive.
The applicant presented considerable testimony with respect to both the actual construction of a [c]ul-de-sac on Beagle Drive vis-à-vis a paper cul-de-sac which would not be constructed but would provide credit for ...