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Bowie-Mccready v. Morristown Zoning Board Of Adjustment

September 12, 2008


On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2506-06.

Per curiam.


Argued May 7, 2008

Before Judges Sapp-Peterson, Messano and Newman.

Plaintiffs are Myra Bowie-McCready, a resident of Morristown, and Friends of Historic Speedwell, a not-for-profit organization formed to support the preservation of Speedwell, a historic district within Morristown (collectively, plaintiffs). They appeal the trial court decision upholding the defendant Morristown Zoning Board of Adjustment's (Board) determination granting a use variance to defendant K & K Developers, Inc. (K & K) (collectively, defendants). The variance permitted K & K to construct twenty townhouses on a 6.2-acre lot (the property) that had been zoned for single-family residences. Because we agree that K & K failed to establish the positive criteria, namely, that there was a special reason to grant the variance, we reverse.


The history of the property at issue dates back to the 1800s when Steven Vail established Speedwell Iron Works, a nationally recognized manufacturer of boilers. When his son George took over the family business in 1848, he built the Willow Hall residence on the property near the manufacturing plant. The plant burned down in 1908, but Willow Hall was not lost in the fire. Eventually, the land was divided into four parts, two of which were owned by the Borough, one part by the County, and the last part, the property at issue here, was privately owned. K & K entered into a contract to purchase the property from its current owner, defendant Frederick W. Stradtman.

The property is located on the fringe of an R-3 district zoned for single-family residential properties, and borders districts that have been zoned for multi-family use. The property is heavily-wooded with steep slopes bordering the northern and southern portions of the property and forms a plateau in the middle. Willow Hall is a 3,500 to 4,000 square foot, Gothic-style "three-bay, two[-]and-a-half story cross-gabled dwelling . . . constructed of coursed rubble[.]" It faces Speedwell Lake to its south and is listed on the National Register as a historic site because of its architectural significance.

Although Willow Hall has been well-preserved, it has structural problems that require at least an estimated $200,000 to correct. Because the restoration costs were so high, K & K believed that the only feasible way to undertake the project was to construct high-end townhouses on part of the property and use the profit from the sale of those homes to fund the restoration project. Although K & K believed that construction of high-end townhouses was the most profitable vehicle through which to fund Willow Hall's restoration, it did not undertake a feasibility study for construction of single-family homes in the area, which construction would have been consistent with the property's R-3 residential zone designation.

Because the proposed townhouse construction project was contrary to the property's zoning designation, K & K submitted an application to the Board for (1) a use variance to construct townhouses in an area zoned for single-family residences, (2) dimensional variances, (3) variances from a town ordinance restricting development on steep slopes, and (4) final site plan approval. Between June 2005 and April 2006, the Board conducted hearings on the proposal.

Both sides presented witnesses including expert testimony as to the feasibility of the proposed project. Additionally, testimony was presented at the request of the Board related exclusively to preservation of Willow Hall.

K & K's proposed plan called for the construction of thirty-one units, later scaled down to twenty, in five buildings. Each building would house four, three-story units that would vary in size from 2,800 to 3,600 square feet, with two-car garages and an area for two parking spots. The end units would have access from the side of the first floor, and the middle units would have a walk-out basement with a small patio. Only the first floor of the units would provide a view of the lake, as K & K intended to retain the trees that grew between the property and the lake. K & K also intended to construct along the lake a retaining wall with landscaping.

To minimize the townhouses' visual competition with Willow Hall, K & K intended to use tiered roofs to break the buildings up to a scale that would be compatible with Willow Hall and to incorporate exterior features of Willow Hall, such as stone and window designs. Building into the steep slopes would also create an appearance from Speedwell Avenue that the townhouses were only two-stories tall, thus further lessening their competition with Willow Hall.

One road from Speedwell Avenue would be constructed to provide access to Willow Hall and to the townhouses. Access to Willow Hall was provided by a driveway from Speedwell Avenue, but K & K planned to eliminate that driveway and to construct the road on the opposite side of Willow Hall. The new road would run approximately down the middle of the lot, about four feet away from Willow Hall.

K & K intended to preserve the existing trees near Speedwell Avenue and to add new ones, as well as some landscaping. K & K also intended to keep a buffer of trees along Ames Road and to plant a new tree for every old one that it tore down. To lessen the negative effects that building into the steep slopes would have on the area, K & K intended to implement a soil erosion and sediment control plan. To address future preservation, K & K intended to create a preservation easement "along the frontage of the Speedwell Lake."

K & K also presented testimony that there were no protected lands, such as wetlands, or species on the property. Thus, the Department of Environmental Protection (DEP) would not restrict development on the land. K & K also believed that the project would improve water quality in the area because K & K intended to construct a state-of-the-art storm water management system that exceeded DEP requirements, and it intended to limit curbing and pavement to minimize the amount of water runoff.

K & K planned to preserve Willow Hall and restrict development on the property by imposing association rules on Willow Hall and the townhouses. For example, those who owned lake-front townhouses would be prohibited from constructing anything that would obstruct the view of the lake, and no one would be authorized to create a public access-way to the lake or to remove trees near the lake. Willow Hall would be restricted to single-family use and its exterior would not be subject to change.

K & K estimated that the price of the townhouses would be between $750,000 and $800,000. It did not offer an estimated value of Willow Hall. K & K believed that primarily "empty-nesters" would purchase the townhouses. Thus, K & K did not believe that construction of townhouses would have a significant impact upon the public schools or that there would be a significant number of children needing areas to play around the townhouses.

While K & K had no intention of selling Willow Hall to a public agency for public use, there was testimony presented to the Board that supported its public acquisition. The expense of Willow Hall being publicly owned versus privately owned was also discussed. There was also conflicting testimony presented as to whether construction of townhouses versus single family homes was the most effective way to preserve Willow Hall. One position advanced was that single-family homes would not compete with Willow Hall to dominate the landscape as would be the situation with large townhouses. Another view expressed on behalf of K & K was that converting a privately-owned historic building into a publicly-owned building is often not the best way to preserve a historic building because a private owner "tends to have much more hands-on-control, much more interest in the building, the structure he's living in," than does the public. Additionally, it was presented that wear and tear from public use often tends to deteriorate the building more than the private use and keeping Willow Hall privately-owned relieves the public of having to fund its preservation with tax money.

Plaintiffs' expert testified that the proposal did not further the intents and purposes of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129, and, more specifically, that the property was not particularly suited for the proposed use because the property could be developed through construction of single family homes that would not disturb Willow Hall nor the steep slopes. Additionally, the expert noted that the property was not the only site available within Morristown for construction of townhouses.

At the conclusion of the proceedings, the Board agreed that K & K's proposal was the best plan to ensure the preservation of Willow Hall and adopted a resolution granting the use variance to construct twenty townhouses, provided K & K obtained site approval and preserved Willow Hall. Plaintiffs filed a complaint in lieu of prerogative writs in the Law Division challenging the Board's action. The trial court remanded the matter to the Board after it concluded the Board had failed to set forth findings of fact and conclusions of law to support its decision. The ...

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