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Wall v. Planning Board of the Borough of Brielle

July 9, 2009

WALTER M. WALL AND ELIZABETH A. WALL, PLAINTIFFS-RESPONDENTS,
v.
THE PLANNING BOARD OF THE BOROUGH OF BRIELLE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-633-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 27, 2009

Before Judges Carchman and Simonelli.

Defendant Planning Board of the Borough of Brielle (Board) appeals from the August 12, 2008 Law Division order vacating its denial of the application of plaintiffs Walter and Elizabeth Wall for minor subdivision approval and bulk variances for their property designated as Lot 8, Block 64.03 and commonly known as 643 Rankin Road (the property). We affirm.

The following facts are relevant to our review. The property is an oversized lot with a 20 foot frontage on Rankin Road and a 100 foot frontage on Susan Lane. Ingress and egress is from Rankin Road. Located on the property is a two-and-one-half story single-family home built in 1930, a swimming pool, a shed, and a driveway. The home is considerably larger than other homes in the area and is referred to as "the mansion." The mansion is situated on the lot with the architectural sides facing Rankin Road and the rear lot line, and with the front and back of the mansion facing the side yards of adjoining neighbors. Plaintiffs purchased the property in 1996.

On or about January 31, 2007, plaintiffs applied for a minor subdivision with four bulk variances to divide the property into two lots, Lot 8.01, having 15,062 square feet, and Lot 8.02, having 28,396 square feet. Lot 8.01 would front on Susan Lane and be free for development. The mansion would remain on Lot 8.02 and the lot would front Rankin Road. Joseph and Jennifer McGuire, owners of property adjacent to proposed Lot 8.01, objected to the application.

Once divided, the proposed areas of both lots would exceed the required minimum lot area required by the Borough's Zoning Ordinance and would be consistent with the area's character. Lot 8.01 would fully conform with all applicable zoning ordinances and would require no variances. However, Lot 8.02 required the following variances due to the mansion's location:

(1) a front yard adjoining a municipal right-of-way variance (40 feet was required and 20.93 feet was proposed); (2) minimum lot width variance (100 feet was required and 20.93 feet was proposed); (3) a principal structure front yard setback (40 feet was required and 13.35 feet was existing and proposed); (4) accessory building side setback (5 feet was required and 4.1 feet was existing); and (5) rear yard setback (40 feet was required and 18.25 feet was proposed).

Plaintiffs claimed entitlement to the first two variances because the "exceptional narrowness, shallowness and or shape of [the] property . . . would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon [them]." N.J.S.A. 40:55D-70c(1)(a). Plaintiffs claimed entitlement to the other variances because the location of the existing structure created an "exceptional situation uniquely affecting the [mansion] lawfully existing" on proposed Lot 8.02. N.J.S.A. 40:55D-70c(1)(c). Plaintiffs further claimed entitlement to the variances pursuant to N.J.S.A. 40:55D-70(c)(2), claming that the purposes of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to-163, would be advanced by a deviation from the Zoning Ordinance, and the benefits of the deviation would substantially outweigh any detriment.

During hearings before the Board, plaintiffs' expert professional engineer, Charles Gilligan, testified about the affect the creation of the lots would have on the property's gas, water, and sewer lines. He also confirmed that approximately twenty-five percent of proposed Lot 8.02 drained in the direction of Susan Lane; however, the down spouts next to the mansion would be funneled into a dry well on Lot 8.02, and would serve as an attenuation of any runoff coming from the site.

Gilligan also prepared a Grading Plan showing that a house could be built on Lot 8.01, which would have its own self-containing drainage so as to not affect any neighboring properties. Gilligan noted that plaintiffs agreed to install the proposed drainage system as a condition of approval, and would do so prior to perfection of the subdivision. Gilligan's testimony was undisputed and the Board's engineer agreed with the drainage plan.

Plaintiffs' expert professional planner, Allison Coffin, testified that despite having conforming frontage on Susan Lane, the property functions as a flag lot. She opined that the requested variances were technical in nature and that they met the requirements of N.J.S.A. 40:55D-70c(1) because they all relate to the existing mansion and lot shape. Specifically, she noted that "[t]he lot currently has a flag lot configuration to the one frontage [Rankin Road]. All access is provided currently via that flag, so in essence they're not creating a new flag lot."

Coffin also opined that the requested variances met the requirements of N.J.S.A. 40:55D-70c(2) because the proposed subdivision would advance the purpose of the MLUL with respect to appropriate population density. She testified that the proposed lot areas exceed the required lot area minimum, and the proposed use of both lots is consistent with the character of the development pattern of the surrounding area and more in character than the existing ...


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