On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3328-06.
The opinion of the court was delivered by: Lyons, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Lyons and Espinosa.
Plaintiffs, Elizabeth Schmidhausler, Joseph and Shirley Sharples, Lisa Ann Wade, John and Marion Ciecura, and Hilary Ayers-Kavtaradze, appeal a July 14, 2008, order of the trial court affirming the resolution of defendant, Planning Board of the Borough of Lake Como (the Board), granting subdivision approval with variance relief to the co-defendant, Ronald Glynn, (Glynn) to subdivide his oversized lot in the Borough of Lake Como into three single-family lots. Plaintiffs are owners of adjoining and neighboring lots in Lake Como. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
Glynn is the owner of an irregularly shaped lot, roughly 264 feet by 100 feet, in the RAA single-family residential district of Lake Como. The property, commonly known as 13 Ripley Lane, is located at the intersection of Fernwood Road and Ripley Lane, and is designated as Block 19, Lot 6, on the municipal tax map. The western portion of the lot borders on Fernwood Road, a public street. The northern portion of the lot abuts the neighbors' lots and a forty-foot right-of-way, known as Briarwood Terrace. The eastern border of the lot abuts a neighbor's lot. The southern border of the lot fronts on Ripley Lane, an unpaved serpentine private road that goes from Fernwood Road past Glynn's lot and ten others to North Boulevard, a public street. Glynn sought to have his lot subdivided into three lots, to be designated 6.01, 6.02 and 6.03.
At a hearing conducted by the Board on December 13, 2004, Glynn applied for the subdivision approval and asked for variance relief from the lot depth requirements with respect to proposed lots 6.02 and 6.03.*fn1 Relief was also sought for those lots because they would abut an unimproved street. See N.J.S.A. 40:55D-35 and N.J.S.A. 40:55D-36. At the time of the December 13, 2004, hearing, the Board and Glynn were under the impression that Ripley Lane was an unimproved public street. During the hearing, however, an objector raised the issue as to whether Ripley Lane was, in fact, a private road and not a public street. At the hearing, Glynn's architect testified concerning the proposed site plan, as well as the configuration and size of the particular dwellings intended to be constructed on the three lots. No vote was taken on the application that evening and the hearing was adjourned until the February 2005 meeting.
Following the December 2004 meeting, the Board and Glynn ascertained that Ripley Lane was, in fact, a private road. Glynn then had a title search conducted with respect to the ownership of Ripley Lane, and the February 2005 meeting on Glynn's application was adjourned without a date.
In August 2005, the Board advised Glynn that his application was incomplete because it required an updated and complete survey, presumably to reflect that Ripley Lane was actually a private road, whereas the initial application was premised on Ripley Lane being a public street. It is unclear from the record whether Glynn filed a new or amended application at this time. It appears he did not. In December 2005, the Board advised Glynn that his application was now complete and new notices were sent out.
A hearing was held on January 9, 2006. At that time, Glynn's planner and engineer testified. The testimony recognized that the application had changed somewhat in that Ripley Lane was, in fact, a private street. The subdivision remained the central focus. The lot depth variances were still required. An additional variance was now needed pursuant to N.J.S.A. 40:55D-35, because two of the proposed lots, 6.02 and 6.03, would not front on a public street. No decision was rendered on the application and it was continued until the Board's next meeting.
Following the January 2006 meeting, Glynn purchased a portion of Ripley Lane by receiving quit claim deeds from the various heirs and beneficiaries of William C. Ripley and Jane R. Lord. Based upon Glynn's ownership of almost all of Ripley Lane, he submitted an "updated" application in March 2006. The subdivision plan changed somewhat because Glynn now intended to subdivide the existing lot 6 as follows: lot 6.01 would front on Fernwood Road; lot 6.02 would be a "flag" lot and the "flagstaff" portion of the lot would be the existing portion of Ripley Lane that fronts on the proposed lots 6.01 and 6.02 out to Fernwood Road; lot 6.03 would also be a "flag" lot and the "flagstaff" on that lot would be comprised of Ripley Lane running out to North Boulevard. Because of the acquisition of Ripley Lane by Glynn, the lot depth variances were no longer required. But a variance was now necessary for lot frontage as to proposed lots 6.02 and 6.03 because the ordinance required a sixty-foot frontage on a public street and the width of Ripley Lane on the public streets of Fernwood Road and North Boulevard was only approximately twenty feet. In addition, Glynn sought a de minimis exception from the residential site improvement standard which requires a two-year storm event be reduced by fifty percent. Glynn proposed a thirty percent reduction and to connect any drainage overflow to the existing drainage pipe running through the property. This amended application was then heard by the Board on April 10, 2006.
At this meeting, Glynn's engineer and planner again testified and were cross-examined by plaintiffs' then attorney. Plaintiffs' attorney noted that "this entire application changed this evening," referring to the acquisition by Glynn of Ripley Lane. He asked, therefore, that he be given an opportunity to put on witnesses regarding the amended application at the next meeting.
Glynn opposed that and noted that he was seeking to place conforming houses on what would be conforming lots. The Board was willing to grant the adjournment so that the objectors could place their objections on the record and have their engineer testify. The hearing was then adjourned until May 8, 2006.
At the May 8, 2006, hearing, Glynn's engineer and planner testified, as well as the objectors' engineer and planner. Through their attorney, the objectors argued, in addition to other concerns, that Glynn's proposed drainage system would fail. At the conclusion of the May 8, 2006, hearing, the application was approved by a four-to-three vote of the Board. A resolution was signed on June 12, 2006, memorializing that vote and the Board's findings and conclusions. The resolution noted that the ...