On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-1188-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2007
Before Judges Sabatino and Alvarez.
In these related appeals calendered back-to-back,*fn1 33 Knox Avenue, LLC, ("the developer") and the Cliffside Park Zoning Board of Adjustment ("the Board") seek review of an order entered by the Law Division on July 12, 2006. The order in question invalidated use and bulk variances that the Board had granted to the developer, allowing it to build a two-family dwelling on property in Cliffside Park zoned exclusively for single-family homes. We affirm.
The subject property, Block 3103, Lot 28, commonly known as 33 Knox Avenue, is located in the northeastern section of Cliffside Park within a residential area. The property is on the easternmost block of Knox Avenue, a dead end street. Knox Avenue terminates at the eastern border of the borough, at a cliff edge that provides a view of the Manhattan skyline. According to the borough's zoning map, the entire section of Knox Avenue east of Palisades Avenue, including the premises in question, is within a R-1 residential zone. The R-1 zone permits only single-family dwellings. There is presently a small single-family house on the subject property, with a detached garage. The property has fifty feet of frontage on Knox Avenue and extends 101 feet to the rear.
The developer seeks to tear down the existing structures and build a three-story duplex on the site. The proposed duplex would consist of two adjacent three-bedroom units. The duplex would have two one-car garages on the ground level, as well as driveway space in front of each garage sufficient for an additional vehicle. Each of the two dwellings would have a lot area of 2,526 square feet.
Because the proposed duplex was not in conformity with the applicable R-1 zoning requirements, the developer applied to the Board for a use variance, pursuant to N.J.S.A. 40:55D-70d. The developer also sought a bulk variance from the R-1 zone's requirement of a minimum of 5,000 square feet of lot area per dwelling.
Respondents, Joseph and Nancy Salvati ("the Salvatis"), have resided at 34 Knox Avenue, across the street from the subject property, since 1975. The Salvatis and several other neighbors on Knox Avenue objected to the proposed variances. The Salvatis and the other objecting residents of Knox Avenue contended that the proposed duplex would detract from the character of their neighborhood, and that it also would increase congestion and cause other negative consequences.
The Board held a public hearing on the developer's application on December 14, 2005. The developer's principal witness was its planner and architect, Jose Carballo, who designed the duplex. Carballo testified that the proposed duplex conformed to all minimum front, rear, and side yard setbacks within the R-1 zone and also was within the height requirements for that zone. The duplex would replace the existing structures on the property: a single-family home that Carballo described as "very small," "very old," and "somewhat ill maintained"; and a detached garage in the yard. Carballo noted that, and it is undisputed on this appeal, the existing garage did not comply with the R-1 zone's side yard and rear yard setback requirements.
With respect to the duplex's compatibility with the character of the surrounding neighborhood, Carballo testified that he had toured the area and that "[t]he street as well as the entire area is predominantly single[-]family homes." However, Carballo stated that there was a developing pattern of new two-family homes in the area. He testified that, as he toured the neighborhood, he observed "at leas[t] four two[-]family homes" similar to the proposed project, and another similar duplex under construction on the same street. In sum, Carballo opined that "[Knox Avenue] is actually becoming more two[-]family oriented," and that a more general trend toward two-family dwellings was evident throughout Cliffside Park.
As support for his opinion that the northern area of Cliffside Park was developing into a mixed single-family and two-family zone, Carballo cited a 1997 report by the borough's Planning Board that had reexamined the borough's Master Plan. In that report, the Planning Board recommended that the northern part of the borough, where the subject property is located, should be re-zoned to permit both single-family and two-family dwellings. The Planning Board based that recommendation on what it perceived to be the development pattern in that part of Cliffside Park since 1989, when the borough's present zoning ordinance was adopted. Among other things, the 1997 report noted "the existing development pattern which consists of  mainly two[-]family dwellings."
In his testimony, Carballo specifically addressed the so-called positive and negative criteria applicable to the proposed variances, pursuant to N.J.S.A. 40:55D-70d. First, he maintained that the project "conforms to the Master Plan," relying on the Planning Board's 1997 recommendation to re-zone the area. Second, he claimed that the project conforms to the State's emerging "smart growth" initiatives by redeveloping the property as "a more efficient type of development." Carballo considered these features as positive aspects of the project.
With respect to the statutory negative criteria, Carballo opined that the project had no adverse consequences. He noted that a single-family home of the same dimensions as the proposed duplex would not require any variances. He further asserted that the duplex would have no negative effect on the neighborhood, and that it would not substantially impair the borough's zoning ordinance.
Several residents of Knox Avenue disagreed with Carballo's assessments, and voiced their objections during the public portion of the December 14, 2005 hearing. Joseph Salvati spoke first. Salvati asserted that Carballo and the developer failed to recognize pertinent negative criteria in their presentation to the Board. Salvati testified that the area has always been primarily single-family homes, and that the five long-standing residences that were actually two-family homes had the appearance of single-family homes. Salvati testified that the duplex style of two-family homes did not exist on Knox Avenue until the mid 1990's, when the Board began granting variances for such ...