On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-677-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard, Gilroy and Baxter.
Plaintiff Gary S. Stein appeals from a Law Division order of February 15, 2007, which affirmed a December 8, 2005 resolution of the Upper Saddle River Planning Board (Planning Board) that had denied plaintiff's application for minor subdivision approval. In order to have granted that approval, the Planning Board would have been required to rescind the no-further-subdivision condition that it had imposed on July 24, 1986 when it granted minor subdivision approval to plaintiff. We conclude that the trial court correctly determined that the Planning Board's decision of December 8, 2005 was not arbitrary, capricious or unreasonable. We affirm.
Plaintiff is the owner of property located in the Borough of Upper Saddle River known as 8 Weiss Road. Although the property has an address indicating frontage on Weiss Road, the property does not abut a public street, and gains access to Weiss Road via a long, narrow access easement. In particular, plaintiff's property is 360 feet from Weiss Road, and is connected to Weiss Road by a lane, which varies from thirteen to sixteen feet in width. The lane also provides access to Weiss Road for four other lots that do not front on a public street.
When plaintiff purchased his property in 1968, it was larger and nearly square in shape. In 1986, plaintiff filed a subdivision application, which, when granted, resulted in the creation of a new lot in the northwest quadrant of plaintiff's property. As a condition of granting subdivision approval in 1986, the Planning Board specified that no further subdivision of plaintiff's property would be permitted either by plaintiff or any successive owner of the property. That restriction was memorialized in deeds prepared and filed by plaintiff after he received the 1986 subdivision approval.
It is the 1986 prohibition on further subdivision that underlies the Planning Board's December 8, 2005 decision denying plaintiff's request for further subdivision. The Law Division reviewed the 1986 no-further-subdivision condition when it affirmed the Planning Board's 2005 decision. We discuss the 1986 proceedings in some detail in order to provide context for our decision.
In 1986, when plaintiff sought to sell a portion of his property, he first filed an application with the Upper Saddle River Board of Adjustment (Zoning Board) for a variance in order to obtain relief from the provisions of N.J.S.A. 40:55D-35. That statute specified that no building permit could be issued for the construction of a property which did not abut a public road.*fn2 At the time, only the Zoning Board could grant such relief. The minutes of the Zoning Board's February 20, 1986 meeting, although not a verbatim record, demonstrate that the Zoning Board heard considerable testimony concerning the access of fire-fighting equipment and other emergency vehicles to the houses using the lane if the new lot were to be created. Specifically, the Board heard testimony from Andrew Marshall, Jr., an engineer retained by plaintiff, who testified that the lane was sufficiently wide to provide access for fire-fighting equipment and other emergency vehicles to reach the properties on the lane. A neighbor, Patrick Jareck, expressed concern that too many houses would be forced to depend on the lane for access to the public street if the subdivision were to be approved.
During the course of the February 20, 1986 hearing before the Zoning Board, Board members discussed the width and use of the right-of-way. They inquired as to whether an attempt had been made to create a cul-de-sac. At that point, according to the minutes of the meeting, plaintiff's counsel replied "that although this had not been done, the Board could impose conditions on the approval." He proceeded to explain that "his applicant had no intention of further subdividing this property, and that too could be a condition of the resolution." The minutes also state that when plaintiff testified, he "pointed out that there was ample room for vehicle[s] turning on the lawn of his property" and that "[w]ith no intentions to further subdivide his property, he would agree to a deed restriction." The February 20, 1986 meeting concluded with the members voting in favor of a site visit, which was scheduled for March 15, 1986.
At its next meeting on March 20, 1986, the Zoning Board granted plaintiff a variance from the provisions of N.J.S.A. 40:55D-35 in order to permit the creation of a lot fronting on a right-of-way other than an improved street. The resolution provided that "the applicant shall agree that there shall be no further subdivision of the remaining lands of the applicant, which restriction shall be set forth in the deed perpetuating the subdivision and recorded in the Bergen County Clerk's Office."
The Zoning Board made five specific findings in support of its decision to grant a variance from the requirement of N.J.S.A. 40:55D-35: (1) the average improved width of the right-of-way, fifteen to seventeen feet, was "sufficiently wide enough to provide access for emergency equipment to all properties served by the lane, including the applicant's property and lot to be created"; (2) the applicant presented sufficient testimony that the lane had been maintained throughout the period of his ownership of the property; (3) there was no way to obtain public road frontage for [plaintiff's] property, nor was there a likelihood that the right-of-way would be needed for purposes of a public street; (4) "there was not testimony by anyone at the time of the hearing that there would be a significant increase in traffic along the lane by virtue of the construction of a new home on the lane. The lot in question would, except for fronting on a public street, conform in all other respects to the ordinances of the Borough of Upper Saddle River"; and (5) the proposed lot could be created "without substantial detriment to the public good and without substantially impairing the intent and purpose of the zoning plan and zoning ordinance."
Having obtained a planning variance from the Zoning Board under N.J.S.A. 40:55D-36, plaintiff filed an application on March 28, 1986, with the Planning Board for approval of a minor subdivision that would permit him to formally create the new lot without frontage on a public street. In his application to the Planning Board, plaintiff stated that the "Board of Adjustment has required a deed restriction to prohibit further subdivision of the lot."
The Planning Board considered plaintiff's application for minor subdivision approval at three meetings: May 22, June 17, and July 24, 1986. According to the minutes of the May 22, 1986 meeting, neighbors Patrick Jareck, and Sydney and Sue Helfand,*fn3 submitted letters opposing plaintiff's subdivision. The Board set the matter down for a formal hearing on June 17, 1986.
During the June 17, 1986 meeting, plaintiff, represented by counsel, and with a court reporter present, presented two expert witnesses. As he had done at the Zoning Board meeting on February 20, 1986, plaintiff again presented the testimony of his engineer, Andrew Marshall. According to the minutes of the June 17, 1986 meeting, Marshall stated that the right-of-way connecting the property in question to the improved street, Weiss Road, had an average width of fifteen feet which "was adequate for the access of emergency vehicles with the proposed turnaround for the departure of emergency and other vehicles." Marshall further testified that "[a]lthough a fire truck could not pass an ambulance in the easement, one vehicle could pull into the grass area or a driveway of one of the residences on the easement." He opined that "the addition of one more home would not have an adverse effect on the master plan."
Four adjacent property owners objected to the proposed subdivision and were represented by counsel. Their attorney questioned Marshall as to whether "cars could pass one another in the event of a snowstorm [if] the easement [was] plowed to less than its thirteen feet." The minutes do not specify Marshall's answer to that question. Board members questioned Marshall on the depth of the right-of-way, to which he replied that test borings would need to be taken in order to determine depth.
Plaintiff's second witness, Richard T. Coppola, a professional planner, testified that "the subdivision would have no impact on the master plan, but to deny the subdivision would impact [plaintiff's] condition because his is the largest lot in the area."
During the public comment portion of the meeting, Jareck observed that there had been an occasion two months earlier when his five-year old child had required an ambulance, and that it had been necessary for emergency vehicles to back into Weiss Road in order to move out of the lane because of the police cars also at the scene. The minutes also contain the comment by plaintiff's counsel that "the approval could provide the condition 'that there be no further subdivision of the property' be made a part of the deed or covenant." After some discussion pertaining to the actual width of the easement, the meeting was adjourned.
At its July 24, 1986 meeting, the Planning Board approved plaintiff's application for minor subdivision approval. The minutes of the meeting contain only a brief reference to the discussion: "reviewed the possible future of the remaining acreage, as well as restricting the use of the hammerhead for turnaround use only, no parking permitted in this area. Possible widening of the existing pavement to the full twenty feet of the easement was discussed."
The resolution that formally approved the minor subdivision on July 24, 1986, states, "[i]t was agreed that any approval of the subdivision should provide deed restrictions that would not allow for any additional houses having access from this lane."
In the resolution, the Planning Board made a finding that is central to its 2005 rejection of plaintiff's request to strike the no-further-subdivision clause. That finding was also relied upon by the Law Division in its order affirming the Planning Board's 2005 decision. Notably, the resolution states that the granting of a minor subdivision approval would cause the right-of-way "to be burdened to its limit":
WHEREAS, the Upper Saddle River Planning Board having found as a fact that the subject right-of-way will be burdened to its limit with the development of an additional lot, and
WHEREAS, the Applicant has volunteered that there will be no further subdivision on Lot 15 in Block 918, and no further grants of access to the subject right-of-way, and
WHEREAS, the Applicant having consented that there will be no further subdivisions in perpetuity . . . .
The Board then granted subdivision approval subject to four conditions: 1) the right-of-way must be paved to a consistent width of sixteen feet along its entire length; 2) no further subdivision of Lot 15, Block 918, "is to occur by [plaintiff], or his successor in interest, with said restriction to be memorialized in appropriate deeds"; 3) the turn-around must be located within the confines of [plaintiff's] lot; and 4) the hammerhead/cul-de-sac must be stabilized and paved to the satisfaction of the Borough engineer, and trees were to be planted along the entire north and east boundaries of the hammerhead. After receiving minor subdivision approval, plaintiff sold the newly-created parcel. He did not appeal the July 24, 1986 no-further-subdivision condition that the Planning Board included in its approval of his minor subdivision request.
Thereafter, as required by the Planning Board, plaintiff recorded deeds containing the prohibition against further subdivision of his property and against additional grants of access to the right-of-way. None of the objectors appealed ...