August 27, 2007
FRANCINE GARVIN, PLAINTIFF-RESPONDENT,
PLANNING BOARD OF THE TOWNSHIP OF MIDDLETOWN, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 installation and maintenance of which would be paid for by the homeowners.
Each lot exceeded the required gross square foot footage for the R-22 zone. The building coverage proposed for the three lots of 1500 square feet was well within the fifteen percent permitted by the Township Master Plan. The ordinance set back requirements would also be met.
Stockton testified that two lots adjacent to Garvin's property are served by a private right-of-way and there are at least three developments within the immediate vicinity served by private access roads and not by Township rights-of-way. Here, the access easement would only serve two lots. The property backs up to a creek with a conservation easement. The stream is over 400 feet from any proposed development. Thus, there is no need for a public right-of-way to travel through the property, because such a public street would end at the conservation easement and creek.
Stockton further testified that the subdivision development would advance the purposes of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-2 by providing: (1) "adequate air, light and open space" resulting from the "oversized nature of the lots and the reasonably low percentage of building coverage on these lots"; (2) promoting appropriate population density because the lots exceed the density minimum requirements in the zone; (3) promoting a desirable visual environment because of its "country lane type of appearance", i.e., it would have pavers, along the left side of the road would be a fence, which would be decorative and also serve to maintain privacy, and by creative light fixtures controlled by the homeowners, and at the property line intersection with the easement.
In addition to there being no drainage or storm water runoff issues, the lots will be served by public water and public sewer. The fence along the property line will provide privacy between the property and the neighboring property to the north. Stockton, therefore, opined that, as required by N.J.S.A. 40:55D-70, the variance could be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and zoning ordinance. Stockton stated, "basically it's a residential use on  oversized lots. It's certainly permitted in this zone, the R-22 zone."
The Board in its resolution found that the property was not encumbered by exceptional narrowness, shallowness or unusual shape because it was already improved and put to reasonable use by the existing single family residence on the property; that the proposed orientation of two of the lots without any frontage on a public roadway would be substantially atypical for the area; the subdivision design would promote unusual building locations with yard areas and building orientations that were substantially out of character with the surrounding neighborhood; the impact of use of the access driveway on the residential property to the north by the granting of a variance to establish lots with deficient frontage and allow construction unrelated to a street would be substantially detrimental to the surrounding neighborhood's character, particularly its aesthetic character, such that it would run contrary to the master plan's purpose and intent; and the benefits of granting the variance would not substantially outweigh any detriment to the purpose and intent of the Township's master plan, zone plan and the public good.
The Law Division, in reversing the Board, recognized the property to be highly irregular in shape. It noted that the fire department had given approval to the subdivision, and reiterated the conformity of the subdivision with respect to bulk, coverage, and density requirements. The court determined that the Board's finding the proposed subdivision was atypical for the area was "contrary to the facts elicited at the time of the hearing." The court concluded that based on the evidence presented, the subdivision would not be out of character and would not promote any other development in the area. The court also found that many other residential lots in the immediate area are served by long private driveways and that no substantial detriment to surrounding property owners was shown in the record. The court further determined that the application would not, based on testimony and evidence presented at the hearings, be contrary to the master plan's intent and that it would advance the purposes of the MLUL.
In applying N.J.S.A. 40:55D-36, the court stated "unless there is a necessity for the right-of-way improvement based on public safety relating to this specific development, it is ultra vires for the Board to require such an improvement." The court concluded that the Board "failed to apply the statute to the facts of this application, failed to make findings of fact, and only made conclusions associated with this application." Finally the court determined the Board "ignored the fact that the lots were conforming as to bulk dimension and that there were a significant number of similar types of subdivisions with private lanes which the Board had previously approved in the same Zone."
On appeal, the Board contends:
POINT I: THE TRIAL COURT DID NOT GIVE
SUFFICIENT WEIGHT TO THE CONSTITUTIONAL PRESUMPTION OF VALIDITY OF MUNICIPAL ACTION, DISREGARDED THE TOWNSHIP ZONING ORDINANCE/MASTER PLAN AND ERRED IN SUBSTITUTING ITS JUDGMENT FOR THAT OF THE PLANNING BOARD, AND ITS JUDGMENT SHOULD BE REVERSED.
POINT II: THE APPLICATION OF N.J.S.A. 40:55D-36
WAS INAPPROPRIATE AS THE STATUTE ALLOWS RELIEF IN CERTAIN CIRCUMSTANCES, BUT DOES NOT MANDATE IT IN ALL CIRCUMSTANCES.
POINT III: FOR THE BOARD'S DECISION TO BE
INVALID THE APPLICANT MUST CARRY A HEAVY BURDEN OF PROOF TO DEMONSTRATE THAT THE BOARD'S ACTIONS WERE ARBITRARY, CAPRICIOUS OR UNREASONABLE: THIS BURDEN WAS NOT MET IN REGARDS TO THE POSITIVE AND NEGATIVE CRITERIA. THE CREATION OF A PRIVATE ROAD IS A "TROJAN HORSE" AND SHOULD NOT BE TREATED AS A BENEFIT.
We have considered these contentions in light of the record before the Board and the applicable principles of law, and we reject them. We affirm substantially for the reasons set forth by Judge Lehrer in his thorough and well-reasoned seventeen-page written opinion of April 3, 2006.
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