On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-2562-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 21, 2007
Before Judges Lisa and Holston, Jr.
In this action in lieu of prerogative writs, appellant, Township of Middletown Planning Board (Board), appeals the Law Division's June 23, 2006 judgment and order reversing the Board's May 4, 2005 resolution denying the application of the respondent, Francine Garvin, for approval of a three-lot subdivision. The court's order approved the proposed subdivision, subject to all normal administrative conditions attached to approved subdivisions. The order memorialized Judge Lehrer's written opinion of April 3, 2006.
Garvin is the contract purchaser of property consisting of 95,785 square feet located at 67 Monmouth Road in Middletown Township (Township). The property is zoned R-22 residential, which permits single family dwellings with a minimum lot area of 21,875 square feet. There is one single family house currently on the property, which does not conform to the set back requirements in the Township's zoning ordinance.
The application proposed subdividing the existing lot into three lots which exceed the size, bulk and density requirements of the R-22 zone. The proposal of three lots would separate the lots with one lot being 26,000 square feet, another lot being 22,661 square feet, and the third lot being more than 46,000 square feet. Since the lots would be in a zone that only calls for 21,875 square feet for a single-family dwelling the density requirement is satisfied. Garvin proposed to demolish the existing house, which fronted New Monmouth Road and to construct three houses stacked behind each other in a line from a twenty-five-foot-wide access and utility easement with eighteen feet of pavement width, along the northerly property line. The easement would be utilized for all vehicular and pedestrian traffic and provide necessary underground utilities to the rear lots. The maintenance of the easement would be the sole responsibility of the homeowners, not the Township, and no municipal services would be required to service the three lots.
The only variance relief requested was for two of the proposed lots, which would not have frontage on a public right-of-way. Garvin therefore sought relief from N.J.S.A. 40:55D-35, which reads: "No permit for the erection of any building or structure shall be issued unless the lot abuts a street giving access to such building or structure." However, a variance may be granted pursuant to N.J.S.A. 40:55D-36 where the enforcement of N.J.S.A. 42:55D-35 "would entail practical difficulty or unnecessary hardship, or where the circumstances of the case do not require the building or structure to be related to a street, . . . subject to conditions that will provide adequate access of firefighting equipment, ambulances and other emergency vehicles necessary for the protection of health and safety."
Garvin also sought a variance from the 125-foot frontage requirement in the Township ordinance pursuant to N.J.S.A. 40:55D-70c which provides in part:
(1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to article 8 of this act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship; (2) where in an application or appeal relating to a specific piece of property the purposes of this act would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to article 8 of this act.
The Township fire department reviewed and approved the proposed subdivision by memorandum dated December 29, 2004. The fire department approved the proposed private access road from an emergency access and safety standpoint.
The property is highly irregular in shape, with the following dimensions: it has lot frontage on New Monmouth Road of 157 feet and a depth of 857 feet along the northerly property line to a creek. The property line then extends south 61 feet, returns northwesterly 423 feet, extends south 97 feet and then proceeds westerly 451 feet to New Monmouth Road.
At the public hearings on the application, the Board heard testimony from Richard Stockton, a professional land surveyor and planner who testified on behalf of Garvin as to the subdivision layout, including access, utilities, grading, lighting, and emergency services. Stockton also testified as to the standards for a street frontage variance under N.J.S.A. 40:55D-70c(1) and c(2). The Board also heard from several residents who objected to the two lots which would not front on New Monmouth Road.
There are no drainage issues associated with the application. Each home would be served by a seepage pit and the storm water would be absorbed into the ground. The access easement would be lighted by lights to be installed along the private right-of-way, the ...