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Baum v. Planning Board of the Borough of Bernardsville


April 16, 2009


On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-159-06.

Per curiam.


Argued December 2, 2008

Before Judges Wefing, Parker and LeWinn.

Defendants/intervenors*fn1 Christopher Wiedenmayer, Jagbir Singh, Steven Riggio and James Hanson appeal from a final judgment entered on October 1, 2007 in favor of plaintiffs as to the second and third counts of the complaint in lieu of prerogative writs but remanding the matter to defendant Planning Board of the Borough of Bernardsville (Board) for the limited purpose of granting a minor subdivision subject to reasonable conditions. We affirm.

Plaintiffs Steven and Suzanne Baum (the Baums) own a twelve-acre lot with a 100-year-old house in Bernardsville. They made an application to subdivide the property into a seven-acre lot and a five-acre lot, and sought certain variances in order to build a house on the five-acre lot.

The property is an irregularly-shaped flag lot with fifty feet of road frontage. There is no driveway from that frontage because of steep slopes and multiple conservation easements. Access to the property is from a private driveway approximately 1,500 feet long varying in width from ten to twenty feet. The driveway is paved except for the last 300 feet, and ends in a turnaround in front of plaintiffs' residence. The intervenors are owners of the four other properties that share the driveway. Plaintiffs' property is roughly twice the size of each of the other four lots.

In January 2003, plaintiffs' application for a minor subdivision proposed a seven-acre lot for the existing residence and driveway turnaround, and a new five-acre lot on which a new residence would be built with a private well and a subsurface sewage disposal system. Plaintiffs sought three variances pursuant to N.J.S.A. 40:55D-70(c): (1) lot shape, from the required 350-foot lot geometry circle for a 320.3 foot lot geometry circle; (2) lot access, for use of the existing private driveway for the new lot; and (3) lot frontage, for the lack of public street frontage for the new lot where a minimum of fifty feet is required.

Plaintiffs proposed to widen the existing twenty-foot right-of-way along their portion of the driveway to twenty-five feet and construct a K-turn easement at the end of the common driveway for emergency vehicles. At a hearing on the application, plaintiffs agreed to modify their subdivision plat, and to construct a K-turn at the end of the driveway for emergency vehicles, a fifty-foot long by eighteen-foot wide paved passing area, and to widen their portion of the driveway from twenty to twenty-five feet. In a letter dated April 3, 2003, the Bernardsville Bureau of Fire Prevention (Bureau) approved the application for emergency vehicle access but requested that vegetation along the length of the driveway be kept pruned to avoid scratching the fire trucks.

Plaintiff Steven Baum testified at a Board hearing on May 22, 2003 that he intended to build a "modest home" for his wife's parents, who wanted to downsize from their larger home in Mendham. The proposed house would be "architecturally appropriate in scale and detail" to share plaintiffs' property. Plaintiff testified that he had sought to purchase additional property from his neighbor so he would not need the lot circle variance, but was unable to do so.

Plaintiffs' engineer, Stephen Parker, testified that the driveway has good sight lines, is functional, and has an extremely low volume of traffic. The new house would not create any environmental problems because the trees, steep slopes and wetlands are all in the buffer area and not in the proposed building area.

Plaintiffs' planner, John McDonough, testified that the proposed subdivision was complimentary to the surrounding country-lane setting, representative of good planning and consistent with the Borough's zone plan. He further testified that the driveway could easily accommodate two-way traffic.

The objectors presented a traffic engineer, Gary Dean, who disagreed with McDonough that the driveway could accommodate two-way traffic. Dean testified that plaintiffs should be required to improve the entire driveway if the application was granted. He claimed that because of the number of deviations from the Residential Site Improvement Standards (RSIS), N.J.A.C. 5:21-1.1 to -8.1, the driveway could not fall into the de minimis category. He agreed, however, that adding one house to the number of driveway users would add only one vehicle to the driveway during a peak hour of use.

The objectors also presented a planner, Richard Preiss, who reviewed plaintiffs' application and claimed that the driveway was not adequate for emergency vehicles, irrespective of the Bureau's prior approval. He further claimed that the thirty-foot deficiency in the lot circle was a sufficient detriment to the Master Plan to warrant denial of the application. In his opinion, plaintiffs had reasonable use of their property and no hardship was associated with the application that could serve a basis for granting the variances. He further commented that granting the variances would not benefit the neighbors.

On September 25, 2003, after conducting three hearings, the Board denied plaintiffs' application and stated in its resolution:

After carefully considering the evidence, the Planning Board concludes, with respect to the requested variances, exceptions and waivers, that the applicants have not sustained their burden of showing that the strict application of the zoning regulations will result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the owners of the subject property. The applicants propose to create a new building lot which will be landlocked and which will rely for its access entirely upon an existing common driveway or private right-of-way that fails to satisfy a number of State standards for streets, including those applicable to rural country lanes. In the Board's opinion, it does not constitute sound planning to develop new lots whose sole access is by means of a lengthy, substandard driveway.

Moreover, the proposed new building lot will be irregular in shape and will not comply with the Borough's "lot circle" requirements. The applicants have not proven grounds for their requested variance relief under either the C-1 or C-2 criteria of the Municipal Land Use Law. Their proposal to create a substandard building lot on the property is one which basically serves to enhance the economic interests of the owners, who purchased the property with full awareness of the existing site conditions and with actual or imputed knowledge of the zoning requirements or limitations applicable thereto. In that sense, any alleged hardship can be said to be self-created or self-imposed.

Plaintiffs filed a complaint in lieu of prerogative writs challenging the Board's denial. The trial court remanded the matter for the Board to (1) explain how a perceived detriment to a rejected Master Plan policy of preserving estate properties was sufficient to deny unrelated variances when there had been no detriment to the zoning ordinance and plaintiffs had satisfied the positive criteria; and (2) advise whether the RSIS applied to the driveway, and if so, whether plaintiffs were entitled to a de minimis exception.

On remand, plaintiffs' engineer testified that RSIS did not apply because Clarification Paper No. 3 issued by the Site Improvement Advisory Board of the Department of Community Affairs exempts property owners from having to improve off-tract infrastructure that pre-dates the 1997 adoption of RSIS to meet those standards. Since the driveway dated from the nineteenth century, RSIS did not apply. He further stated that even if RSIS applied, a de minimis exception was warranted with the improvements set forth in plaintiffs' application. The engineer noted that RSIS "rural lane" designation was designed for developments up to twenty lots with 200 vehicle trips per day, well below the fifty-one vehicle trips per day generated by the existing five lots and the additional 10.2 vehicle trips per day that would be added if plaintiffs' application were granted.

The objectors' engineer, however, claimed that RSIS Clarification Paper No. 1 would trigger an obligation to improve the entire driveway up to the rural lane standard. He maintained that any exceptions from RSIS should be denied because no hardship existed and the necessary exceptions were so substantial that they were not de minimis. The Board's engineer, Robert Brightly, testified that RSIS Clarification Paper No. 1 did apply and added that the Board was required to go through all RSIS standards and decide if the de minimis exception applied.

Objector Hanson testified that the driveway is narrow and particularly difficult to maneuver in winter because "there's only one path that gets . . . plowed." Objector Singh testified that during the seven years he has lived on the driveway he has had, on occasion, to back up to allow another vehicle to pass and in one instance had to call a tow truck during the winter because his car got stuck. Intervenor Wiedenmayer testified that he had a problem with his electric gate opening when other cars passed by.

After hearing further testimony from the objectors' planner and the Board's planner, the Board again denied the application. The Board concluded that RSIS applied to the proposal and that plaintiffs were required to improve the entire driveway to rural lane standards. It denied any exception to RSIS requirements because the deviations were too numerous and substantial and not consistent with the intent of the regulations. The Board further found that plaintiffs' proposed subdivision of their twelve-acre lot would undermine the Master Plan goal of "preserving estate mansion properties and open space" and stated that, "In any case, the applicants have not presented any professional planning testimony during the remand proceedings such as might warrant a different result."

On January 30, 2006, plaintiffs filed a second complaint in lieu of prerogative writs appealing the Board's second denial of their application. After hearing argument, the trial court rendered a written decision on August 24, 2007, finding that preservation of estate mansions was not a proper reason for denying the application and that the Board applied an incorrect standard in considering exceptions from RSIS standards for the shared driveway. The court concluded that plaintiffs' application satisfied the standards for granting the variances under N.J.S.A. 40:55D-36 and -70(c)(2) and vacated the Board's denial of the application.

With respect to the driveway, the trial court found that the Board correctly applied the RSIS "rural lane" standard to that portion of the driveway owned by plaintiffs, but that it lacked the authority, as a matter of law, to require plaintiffs to improve the remainder of the driveway owned by the objectors. The court accepted the factual findings from the earlier Law Division decision and concluded that the Board should have granted exceptions from RSIS for plaintiffs' portion of the driveway because any deviations after the proposed improvements would be de minimis. The court ordered the Board to approve the subdivision but noted its legitimate authority to address the marginal increase in traffic on the driveway and granted leave for the Board to consider "reasonable conditions for the subdivision . . . including but not limited to repair and improvement of the shared driveway."

On November 26, 2007 -- after the second remand -- the Borough Council adopted Ordinance No. 07-1477, establishing standards for "private country lanes." On January 24, 2008, the Board granted plaintiffs' application, adopting a resolution memorializing approval of the minor subdivision with the driveway improvements that had been proposed in February 2003. The Board stated in its resolution that Ordinance No. 07-1477 did not apply to this application because the driveway in question does not warrant the level or extent of road improvements provided for in such Ordinance since the subject access way is (as stated by the Borough Zoning Officer in his report) a hybrid type of passageway that is more than a typical shared drive but less than a qualified "Private Road" in accordance with Borough standards.

On October 1, 2007, a final judgment was entered memorializing the trial court's decision. The objectors appeal from that judgment and argue:





1. The Board Justifiably Denied RSIS de minimis Exception Relief Required by Plaintiffs.

2. The Board was not Required as a Matter of Law to Consider Whether Plaintiff's [sic] Application Warranted "Substantial" Exception Relief from RSIS Standards.

3. The Trial Court Erred by Granting RSIS Exceptions and Then Remanding This Matter to the Board to Impose Conditions Relating to Repairs or Improvements to the Plaintiff's [sic] Driveway Consistent with a "Substantial" Exception from the Rural Lane Standard of RSIS.


1. A Newly Enacted Ordinance is Now Controlling.

2. Plaintiffs Required a Planning Variance and a Lot Access Variance, Requiring that the Entire Driveway was Safe and Provided Adequate Access.

3. The Trial Court Erred by not Considering Whether Exceptions from Local Ordinance Requirements Pertaining to the Private Drive Were Warranted, and by Remanding This Matter to the Board to Impose Conditions Consistent with a "Substantial" Exception from the Applicable Ordinance.



A. Standard for Review Under N.J.S.A. 40:55D-70(c)(2)

B. The Trial Court Erred in Reversing the Board's Determination that Plaintiffs' [sic] Failed to Satisfy the Positive Criteria under N.J.S.A. 40:55D-70(c)(2) for Variance Relief.

C. The Trial Court Erred in Reversing the Board's Determination that Plaintiffs Failed to Satisfy The Negative Criteria Under N.J.S.A. 40:55D-70(c)(2).

1. The Trial Court Erred in Reversing the Board's Determination that Plaintiffs Failed to Satisfy the First Prong of the Negative Criteria Test.

2. The Trial Court Erred in Reversing the Board's Determination that Plaintiffs Failed to Satisfy the Second Prong of the Negative Criteria Test.

a. The Trial Court Mis-Applied as a Matter of Law the Balancing Test Applicable to Such Analysis.

b. The Trial Court Erred in Determining That the Master Plan Goal of Preserving Estate Mansions Could not be Considered in Analyzing the Negative Criteria for the Required Variances.

D. The Trial Court Erred in Reversing the Board's Determination that the Lot Access Variance and Planning Variance Were Not Warranted.



We have carefully considered the objectors' arguments in light of the extensive record and the applicable law and we are satisfied that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set forth by Judge Victor Ashrafi in his thorough and well-reasoned letter opinion dated August 24, 2007. Nevertheless, we add the following comments with respect to certain issues raised in this appeal.

The objectors argue that Judge Ashrafi erred in reversing the Board's denial of the application because plaintiffs failed to satisfy the applicable RSIS standards. They contend that the Board justifiably denied the de minimis exceptions, that the Board was not required as a matter of law to consider whether plaintiffs' application warranted relief from RSIS, and that the trial court erred in granting RSIS exemptions and then remanding for the Board to impose conditions. The objectors argue that RSIS applies to the portion of the driveway not owned by plaintiffs and that the newly-enacted ordinance is controlling.

The objectors point to their engineer's report dated July 29, 2005, in which he opined that de minimis exceptions to RSIS standards did not apply to plaintiffs' proposal. The engineer listed the following ten reasons for his opinion:

1. Traveled way width -- 18 feet required; 12 feet proposed.

2. Cartway width -- 18 feet required; 12 feet proposed.

3. Sidewalk or graded area -- 2 graded areas required; none proposed.

4. Right-of-way width -- 40 feet required; 30 and 25 feet proposed.

5. Maximum grade -- 15% percent required; proposed grade unknown.

6. Minimum grade -- 0.5% required; proposed grade unknown.

7. Pavement section -- 1.5" bituminous surface, 3.5" bituminous base, and 6.0" granular base required; proposed section unknown.

8. Cul-de-sac bulb -- cartway turning radius of 40' required; proposed turning radius unknown.

9. Cul-de-sac bulb right-of-way -- 8 feet beyond edge of cartway required; 0 feet proposed.

10. Curbs -- curbs not generally required for rural lanes, but edge definition and stabilization is required; none proposed.

While the objectors contend that this list is extensive, a number of the alleged defects overlap and eight of them affect the driveway adjoining plaintiffs' property.

The objectors rely on N.J.S.A. 40:55D-10.3 for the proposition that the Board was authorized to require submission of additional information regarding the driveway so that it could evaluate whether plaintiffs qualified for the RSIS de minimis exceptions. Plaintiffs respond that this was a minor subdivision application with five public hearings before the Board, extensive testimony regarding the driveway, and inspections by the Board's engineer, planner and Board members. Plaintiffs further note that the subdivision plat has a great deal of information regarding the driveway, in addition to which numerous photographs were submitted to the Board by plaintiffs and the objectors.

In his letter opinion, Judge Ashrafi agreed with the Board that the driveway falls within the definition of "rural lane" as set forth in N.J.A.C. 5:21-1.4. He agreed with plaintiffs that Clarification Paper No. 3 applies, that RSIS has prospective effect only, and that RSIS applies only to property being improved. He concluded:

[T]his clarification means that the Board cannot require that the segment of the shared driveway located on the property of others be brought up to RSIS standards. As Clarification #3 goes on to state, the mechanism for improvement of infrastructure in existing development is through requiring the applicant to pay a fee for off-tract improvements in accordance with N.J.S.A. 40:55D-42, and for the public body to make improvements using funds collected from such fees and other resources. In this case, the municipality has no jurisdiction to make improvements of the shared driveway because it is located on private property. Therefore, fees for off-tract improvements are not helpful.

Judge Ashrafi rejected the objectors' reliance on Clarification Paper No. 1, stating that it does not change the meaning of Clarification Paper No. 3, which restricts application of RSIS to new developments, not existing ones. He concluded that the two clarifications read together mean that the Board could require adherence to RSIS only on that portion of the driveway owned by plaintiffs or to portions adjacent to their property. We agree with this conclusion and reject the objectors' argument that RSIS applies to the entire driveway.

Judge Ashrafi concluded that the Board erred in applying the standard set forth in N.J.A.C. 5:21-3.1 for de minimis exceptions from RSIS. He noted that for a minor subdivision such as this, the Board need not apply the same strict criteria as for major subdivision and site improvement applications. He relied on the last paragraph of Clarification Paper No. 1, that a planning board is not bound to require compliance with RSIS and "can grant exceptions as it deems appropriate."

Judge Ashrafi held that the Board placed too heavy a burden on plaintiffs to prove entitlement to exceptions and that it relied on the testimony of experts who did not take into account the less stringent application of RSIS to minor subdivisions. We agree and reject the intervenors' argument that the trial court created a "legal fiction" that minor subdivisions are treated more leniently than other developments respecting RSIS exceptions.

With respect to the argument that the newly-adopted ordinance for "private country lanes" applies to plaintiffs' application, we note that the intervenors did not raise this issue before the trial court and that the Board expressly excepted plaintiffs' application from the new ordinance. We will not consider issues that were not presented to the trial court. State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); see also Pressler, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2009).

The objectors further argue that Judge Ashrafi erred by conducting a site visit without having counsel present. Before rendering his August 24, 2007 decision, Judge Ashrafi had a conference call with counsel in which he advised that he had visited the site and asked whether counsel objected to him having done so. None of the attorneys objected. Nevertheless, the intervenors now argue that the judge put counsel in an awkward position by advising them of his inspection after the fact.

Counsel had every opportunity to state their objections for the record, particularly in view of a likely appeal, regardless of who prevailed in the trial court. If the intervenors' counsel had stated an objection at the time, the trial court could have addressed the issue and a record could have been made for review. Counsel's failure to do so results in a waiver, and we will not consider the issue. Arthur, supra, 184 N.J. at 327; Nieder, supra, 62 N.J. at 234; R. 2:6-2. Moreover, we see no reason to address this issue under the plain error rule because the intervenors have not demonstrated that the site inspection was plain error that was "clearly capable of producing an unjust result." R. 2:10-2.

As stated previously, we are affirming substantially for the reasons stated by Judge Ashrafi in his letter opinion dated August 24, 2007.


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