On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2119-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Sabatino and Alvarez.
This land use case arises out of a developer's effort to build a single-family house on a landlocked parcel situated within a residential zone. Defendants, the Township of Holmdel ("the Township") and the Holmdel Township Planning Board ("the Planning Board'), appeal orders issued by the Law Division on April 30 and June 26, 2007. The orders in question overturned a resolution of the Planning Board, which had denied the developer's application. The orders have been stayed pending this appeal.
For the reasons explained in this opinion, we vacate the Law Division's orders, and remand the matter for further consideration by the Planning Board. In particular, the Planning Board on remand should amplify the record, and make specific findings pursuant to N.J.S.A. 40:55D-36, as to (1) whether the strict enforcement of the street access requirements in N.J.S.A. 40:55D-35 for the subject property "would entail practical difficulty or unnecessary hardship," and, if not, (2) whether "the circumstances of the case do not require the building or structure to be related to a street." N.J.S.A. 40:55D-36.
The property at issue in this case is specifically known as Lot 46 in Block 50.25 in the Township. The property is a single parcel of vacant land consisting of approximately 4.8 acres. It is located in a zone permitting residential uses on minimum lot sizes of one acre. The parcel has an irregular elongated shape, and on the map provided to us it roughly resembles the State of Kentucky with a flatter top. It is heavily wooded and has steep slopes.
Plaintiff Jason Sherman has a contract to purchase the subject property from its present owners, co-plaintiffs Raymond C. Weber and Ursula E. Weber. Jason Sherman is the son of Terry Sherman, an experienced real estate developer. The Shermans plan to build a two-story, single-family home on the parcel.
As we have already noted, the property is landlocked, and has been in such a landlocked condition for several decades. Some history on that persisting condition is worth mentioning.*fn1
The subject property relates to a subdivision created in 1965. As part of the subdivision approval, the Township required the then-developer to extend a street then known as "Parkview Terrace" (now known as "Mount Drive") to a bulbous cul-de-sac. The Township also required the subdivision developer to post a performance guaranty for the completion of the extension. The cul-de-sac was intended to connect the southern boundary of the subject property. This extension would furnish the property with its sole access to a public street.
For reasons that are not entirely clear, the roadway extension was never built. In March 1968, the Township adopted an ordinance vacating public rights in the portion of Parkway Terrace that had been planned for extension. Six years later, in 1974, the Township passed an ordinance appropriating certain funds initiated to acquire a portion of the subject property, Lot 46. At about the same time, the Township also brought a condemnation action in pursuit of that acquisition. In the following year, 1975, the Township reconsidered the acquisition, rescinding the appropriation and voluntarily dismissing the condemnation case.
Meanwhile, in 1975 the Planning Board approved another nearby subdivision, known as Forest Hills Estates. The minutes of the January 1975 meeting, at which the approval for Forest Hills Estates was granted, describe the subject property as a "proposed open space area," which was "to be dedicated to the Township." The minutes also reflect a recognition that "there is no access provided by the [Forest Hills Estates] applicants to the open space area," and that "access must be [made] available" to that area. Consequently, the Planning Board denied the open space application, apparently leaving the subject property in its continued landlocked state.
At present, the property remains without street access. The Township's current tax map does not show Mount Drive extending to the property on the south. The only other nearby street, an east-west thoroughfare known as East Brook Drive, is separated from the property by another parcel, Lot 43, which is owned by a Mr. Ceriello.*fn2 Lot 43 fronts on East Brook Drive, and contains a single-family house.
In order to gain street access for the property, the Shermans negotiated an easement through Lot 43 with Ceriello that would connect Lot 46 to East Brook Drive. The easement would accommodate a driveway, which the Shermans proposed would be sixteen feet wide and approximately 250 feet long. As part of the creation of the easement, the Shermans also sought a lot line adjustment that would reduce the size of Lot 46 from about 4.8 acres to about 4.3 acres. The net result of the easement would be to transform the subject property essentially into a flag lot, with the easement constituting the stem of the flag.*fn3
The Shermans propose erecting a single-family dwelling of approximately 4,000 square feet on the site, plus a garage of about 720 square feet. The new house would be located no closer than forty feet from the property lines of neighboring homes, in conformity with the twenty-five-foot setback requirements of the local zoning ordinance. The proposed construction would fit within the so-called permissible "building envelope" for the site, and would not violate density or lot coverage restrictions.
After securing the easement rights from Ceriello, Jason Sherman applied to the Planning Board for preliminary and final major subdivision approval, along with miscellaneous variances and waivers. According to Sherman's attorney, the application was classified as "major" under the Township's regulations because of the presence of steep slopes on the property. As part of the application, Sherman sought to adjust the lot lines between Lots 43 and 46 to accommodate the easement to East Brook Drive.
The Planning Board heard the site plan application at two public meetings, on February 7 and March 7, 2006. During the interval between the two meetings, the Planning Board members conducted an inspection of the site. The applicant presented three witnesses: Terry Sherman, Gustave DeBlasio, a senior landscape architect and certified tree expert, and Andrew Stockton, a licensed professional engineer and planning expert. There were no opposing witnesses sworn, although several neighbors posed questions and voiced concerns at both meetings.
Terry Sherman, who testified at both meetings, provided the Planning Board with an overview of the construction plans. He explained how the new house would obtain street access through the negotiated easement. He represented that the easement would have fifty feet of lot frontage, and that his son would maintain the driveway portion of the easement while Ceriello would maintain the remainder. He further noted that he had agreed to widen the driveway from its original proposed dimensions to sixteen feet, in order to satisfy the local fire official's concerns about emergency access to the premises. As an additional accommodation, he indicated that the applicant was willing to reduce the height of a retaining wall in the rear of the property from 4.8 feet to four feet, or alternatively, to obtain a variance for the extra height. He also addressed, among other matters, grading, drainage, traffic, landscaping and slopes, a utility's water main traversing the site, and an environmental design waiver that he had sought from the State Department of Environmental Protection ("DEP").
DeBlasio, the architect and tree expert, testified concerning woodlands issues. He noted that the site is "fairly well vegetated with a mature stand of trees." DeBlasio recognized that the Township's tree ordinance generally requires developers to replace trees that are cleared as a result of construction. He explained that the applicant would replant new trees in compensation for those that would be lost, as well as supplemental plant material that would not adversely impact upon the native trees or their root systems. DeBlasio emphasized that the applicant's intent was to "try to preserve as much vegetation as possible to more or less create a seclusion atmosphere" on the applicant's lot. DeBlasio also responded to numerous questions from neighbors concerning the types of trees that would be affected and their locations.
In his expert testimony on engineering and planning items, Stockton opined that the project would have buffers with the stream channel, and what he perceived to be the boundaries of the 100-year flood plain. Stockton also confirmed that the applicant was waiting to hear back from the DEP to confirm that its proposed delineation of wetlands was correct. Stockton further noted that the proposed house would be situated at or about elevation levels 184 to 188 feet, in comparison to the home on adjacent Lot 45.07 that is around elevation levels of 180 to 184 feet. This signified that the applicant's house would be slightly higher than the neighbor's house. Stockton also responded to various questions concerning the site grading, the stream buffer, and other related matters.
Following the applicant's presentation, the Planning Board considered comments from the Township engineer, Bonnie Heard, P.E., and the Township planner, Paul Phillips, P.P. Heard stated that she anticipated reviewing a stream study from the applicant's engineer that had been delivered to her earlier that day, and that she would confirm shortly whether it met the municipality's requirements.
Phillips offered more extensive comments. He characterized as "the main issue" the fact that the new lot "has no frontage on the street, and it must go through an existing single[-]family lot to access to the public street network." As Phillips put it, "[t]hat is not the typical scenario." Phillips acknowledged that the applicant's situation is "unique," insofar as the stem of the proposed flag lot would consist of an access easement rather than the applicant ...