On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2087-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Graves and Ashrafi.
Defendant Carol Widmaier is the owner of a 44,400 square foot parcel of land located in a residential zone in the Borough of Oceanport. Widmaier's property is divided into two lots: lot 10, which is located on a public street and occupied by a single-family residence, and lot 21, which is a vacant piece of property with no street frontage located in back of lot 10.
Widmaier filed an application to the defendant Oceanport Planning Board to subdivide her property into three lots, the existing lot 10 and two rear lots, lots 21.01 and 21.02, on which Widmaier proposes to build new single-family residences. All three lots would comply with the 10,000 square foot minimum area for residential development in the zoning district.
Widmaier also applied to the Board for various bulk variances required for this proposed residential development. The most significant of these variances was from a requirement of 100-foot frontage on a public street. Widmaier proposed to provide access to the two new lots by means of a private driveway that would run along the western boundary of the lots, which would not comply with the public street frontage requirement of the zoning ordinance.
The Board conducted a two-day hearing on Widmaier's application at which it heard testimony and received public comment. The primary witness in support of the application was Gordon Gemma, a professional planner retained by Widmaier. Gemma testified that Conrail owns a forty-foot wide right-of-way to the west of Widmaier's property, which she had attempted to buy. If she had been able to acquire that property, her property would have become sufficiently wide to accommodate a new public street where the Conrail right-of-way is now located, which would have obviated the need for obtaining a variance from the frontage requirement of the zoning ordinance. However, Widmaier had been unable to acquire that property.
Gemma described the landlocked character of lot 21 as a "pre-existing condition" and expressed the opinion that Widmaier's inability to develop the property without a variance constituted an "undue hardship as a result of unique topographic conditions and unique conditions as to this property" within the intent of N.J.S.A. 40:55D-70(c)(1). Gemma also expressed the opinion that the grant of the bulk variances required to construct two new residences on lot 21 would further the objective of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -99, of "appropriate population density" and thus qualify for a variance under N.J.S.A. 40:55D-70(c)(2). In addition, Gemma testified that although Widmaier's proposed development of Lot 21 "will work and function as a flag lot," it would not have a negative impact on the zone plan.
In support of her application, Widmaier also submitted a series of letters she and her attorney sent to Conrail expressing an interest in purchasing the right-of-way adjoining her property. The most recent of those letters was dated October 14, 2005, almost a year before the start of the hearings before the Board in September 2006. Widmaier's attorney indicated that Conrail had not responded to that letter or another similar letter sent on September 21, 2005.
Plaintiff Henry Wollman, whose home adjoins Widmaier's property, testified that he communicated with Conrail regarding the purchase of the property in 2004, and as a result a Conrail representative had come to see the property. Thereafter, Conrail had offered to sell him the right-of-way for an amount in excess of $100,000. However, he was not interested in purchasing the property at that price.
At the conclusion of the hearing, the Board voted 6-1 to approve Widmaier's application, and on March 7, 2007, the Board adopted a memorializing resolution discussed later in this opinion.
Wollman then brought this action in lieu of prerogative writs challenging the Board's approval of Widmaier's application. One of the grounds of Wollman's challenge was that "the Board's resolution failed to set forth specific findings of fact and conclusions of law sufficient to support approval of [Widmaier's] application for variance relief." On April 7, 2008, the trial court issued a written opinion affirming the Board's approval. The opinion did not contain any discussion of Wollman's argument that the Board's resolution did not set forth the findings of fact and conclusions of law required to justify Widmaier's variance application.
N.J.S.A. 40:55D-70 provides two alternative grounds upon which a board may grant a bulk variance. ...