On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-159-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...