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Schlatter v. Planning Board of the City of Englewood

August 20, 2008


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8339-06.

Per curiam.


Argued August 6, 2008

Before Judges R. B. Coleman and Sabatino.

In this action in lieu of prerogative writs, plaintiffs Konrad and Janet Schlatter, husband and wife, appeal the Law Division's order dated July 27, 2007. The order in question sustained a determination by the Englewood Planning Board ("the Board") denying plaintiffs' application for a minor subdivision and associated variances for the property where they reside. We affirm.


The pertinent facts and chronology of events are as follows. Plaintiffs own and reside at 121 East Hamilton Avenue in the City of Englewood.*fn1 The property is designated on the City's tax maps as Lots 5 and 12 in Block 1102. The combined two-lot parcel is located in what is commonly known as the "East Hill" district of the City, although it is apparently at or near the edge of that district. The property fronts both East Hamilton Avenue through Lot 12 and Booth Avenue through Lot 5. A creek runs through the northeast corner of Lot 5. That lot has a flat elevated area, which slopes sharply towards Booth Avenue to the north and towards the creek to the northeast.

At present, the subject property has a single two-and-a-half story residence on Lot 12, with a nearby two-story detached garage. The elevated flat area on Lot 5 has an in-ground swimming pool and also a shed and another small accessory building.

The property is situated in the R-AA residential zone of the City. That zone has a minimum lot area of 44,000 square feet. This requirement stems from a 1988 amendment to the City's Master Plan, which doubled the lot area minimum in the RAA zone from 22,000 square feet to 44,000 square feet. The property, inclusive of both Lots 5 and 12, currently has 66,626 square feet, which amply satisfies the minimum lot requirement.

Plaintiffs wish to subdivide their property into two substandard lots: Proposed Lot 5, with an area of 33,772 square feet, and Proposed Lot 12, with an area of 32,854 square feet.*fn2

They plan on demolishing the swimming pool and the two accessory buildings on Lot 5, and building on that parcel a new residence. Although the architectural features of the proposed residence have not been finalized, plaintiffs envision that it will have a structural footprint of 2,405 square feet, rising 32.71 feet above the existing grade on the elevated flat area of Lot 5. The roof line of the proposed new house would be about fifty feet above the pavement on Booth Avenue. Plaintiffs intend, if their application is granted, to keep intact the existing residence and detached garage on Lot 12.

It is undisputed that plaintiffs' proposed subdivision would conflict with the existing R-AA zoning in several respects. As we have already noted, the two subdivided lots would each fall substantially short of the 44,000 square-foot lot area minimum. Additionally, both proposed new lots would require variances from the zone's requirement of 200 feet of lot depth, as Proposed Lot 12 would be 175.27 feet deep and Proposed Lot 5 would be only 150.01 feet deep. The existing residence on Lot 12 encroaches on the zone's 50-foot minimum front yard setback requirement, and the existing garage encroaches on the minimum sideyard setback requirement. The garage also covers a portion of the minimum planting areas required for the side and rear yards.

Plaintiffs applied to the Board for minor subdivision approval and for associated variances, including, most significantly, relief for both new proposed lots from the 44,000 square foot minimum lot size. Their application was heard by the Board in July 2006.

As their attorney characterized it in his opening statement to the Board, plaintiffs sought, "in essence, a restoration of the original subdivision that developed in [the] neighborhood." To support their application, plaintiffs presented the expert testimony of Massimo Piazza, a licensed engineer. Plaintiffs did not testify themselves, but relied upon their expert's presentation.

Piazza acknowledged that the present minimum lot size in the R-AA zone is 44,000 square feet. However, he noted that the majority of the nearby properties across Booth Avenue from Lot 5 are in the R-A zone, which only requires minimum lots of 22,000 square feet. Piazza stated that properties further to the west on Booth Avenue are in an R-C zone, which has a 10,000 square foot minimum lot size. He also pointed out that properties to the west of Lot 12 along East Hamilton Avenue are also in the RC zone. This all signified to Piazza that "there's a mix of different zones . . . within the perimeter of our property in question."

Piazza also examined the sizes of several of the lots within the R-AA zone near plaintiffs' property, and found that, for the most part, those properties do not conform in size with the present requirements of the R-AA zone. He contended that most of those nearby lots tend to have only 22,000 to 29,000 square feet in area. All or most of these lots were created and developed before the zoning was upgraded in 1988.

For what he described as "demonstration purposes," Piazza determined that the owners of the subject property hypothetically could tear down the present dwelling and erect in its place a much larger house with a 9,939 square foot foundation, without violating the existing R-AA zoning requirements.*fn3 Piazza suggested that such a hypothetical residence, despite its compliance with the R-AA zoning requirements, would clash with the sizes of other homes presently located in the neighborhood. Based on that comparison, Piazza opined that plaintiffs' proposed subdivision, which contemplated building on Lot 5 a smaller home of only about 2,400 square feet in area, was more "consistent with what's in the neighborhood."

Piazza further represented to the Board that the proposed new residence on Lot 5 would meet all drainage and other engineering requirements, and would not intrude upon that lot's steep slopes. He acknowledged that actual development of the site would require an appropriate site plan, to be reviewed by the City's engineer.

In his summation to the Board, plaintiffs' attorney stressed that his clients' proposal was essentially reverting the property back to its status as a two-part subdivision. He pointed out that the property had complied with the existing lot requirements before 1988 when the R-AA zone was upgraded. He alluded to Piazza's comparison with a 9,000-plus square foot hypothetical home that could be lawfully built on the presently merged parcel. He maintained that, by contrast, approving plaintiffs' subdivision would result in two smaller residences that would be "in conformity in size and scale with the houses that have already been developed in the neighborhood." Counsel also ...

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