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Darst v. Blairstown Township Zoning Board of Adjustment

October 27, 2009

CARL AND DELLA DARST, PLAINTIFFS-APPELLANTS,
v.
BLAIRSTOWN TOWNSHIP ZONING BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-0189-06.

The opinion of the court was delivered by: Sabatino, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 23, 2009

Before Judges Stern, Collester and Sabatino.

Plaintiffs Carl and Della Darst, residents of, and owners of real property in, Blairstown Township, appeal the Law Division's validation of four discrete conditions imposed by the Township's Zoning Board of Adjustment ("the Board") when granting plaintiffs site plan approval for their property. For the reasons stated in this opinion, we affirm the trial court with respect to three of the challenged conditions, but reverse as to the fourth condition imposing a one-year time limitation upon plaintiffs in achieving compliance with the Board's requirements.

I.

The subject property is situated along Warren County Route 521 (also known as Hope Road) in Blairstown, and is designated as Lots 28, 29, 29.01 and 31.01 on the Township's tax map. The entire property consists of approximately sixteen acres. Lot 31.01 is in the Township's "R-5" zone for residential uses; the remaining lots are in the "H-C" (Highway-Commercial) zone. There is a one-story dwelling on Lot 29 with a swimming pool, another single-family dwelling on Lot 28, and a two-story dwelling and a barn on Lot 29.01. To its east, the property borders Lot 27, which contains a neighbor's residence.

Plaintiffs have owned the subject property for many years and contend that they have used portions of the site for storage purposes throughout their ownership. As of the time of the proceedings before the Board, a 150-foot-long self-storage unit was located on Lot 28 perpendicular to Hope Road, near the front side of the property. In addition, numerous other self-storage units were scattered in the rear of the property.

This dispute was precipitated when plaintiffs were cited in 2002 by a Township zoning officer for their installation of self-storage units on Lots 28 and 31.01 without acquiring permits, which the officer believed were required by ordinance. Plaintiffs, on the other hand, believed that they had a pre-existing non-conforming use that allowed storage activities on all four lots.

Plaintiffs consequently filed an application with the Board for an interpretation of the ordinance with respect to their use, as well as an application for a bulk variance and for major site plan application. The site plan involved an expansion of the number of self-storage units on the property and various reconfigurations of that use. The plan included retention of the dwellings on Lots 28 and 29. Plaintiffs later amended their application to include a request for a use variance. The use variance request was then bifurcated from the original application.

Partial testimony concerning the interpretation issue was presented in hearings conducted in late 2002 and 2003. However, at the suggestion of the Board's attorney, plaintiffs then agreed to table the interpretation issue and instead pursue the use variance as a method of resolving their dispute with the Township. The use variance hearings were further bifurcated, by consent of plaintiffs and the Board, from any site plan approval proceedings that would be required upon the issuance of such a variance.

The Board heard testimony on the use variance in twelve public hearings beginning on November 11, 2003 and ending on October 12, 2004. During the course of those hearings, plaintiffs and their experts explained that they wished to expand their use of the property for self-storage and install three rows of self-storage buildings on Lot 28. They indicated that the existing storage units on Lots 28 and 29 had been used to store equipment, boats, and vehicles, generally by homeowners and businesses. The units would not be used to store hazardous waste materials. Access to the self-storage units would only be during daylight hours and plaintiffs did not seek to place any additional lights on the property. Plaintiffs intended to screen the units with shrubs and an existing chain link fence abutting Hope Road. Plaintiffs' residence and pool house on Lot 29 would screen the outdoor storage and box trailers on that particular parcel.

As part of their proofs in support of the use variance, plaintiffs presented testimony by Alex Van Veldhuisen, the owner of several self-storage facilities in Hunterdon County. Van Veldhuisen stated that such facilities generate little traffic or noise, and tend to function as "drop off" locations without much on-site activity. According to the Board's resolution summarizing his testimony, Van Veldhuisen "indicated that the appearance of the facility is important, not only to surrounding property owners, but also to the owner of the business, since [self-storage] clients usually prefer neat, clean spaces to store their goods."

As another item of supporting proof, plaintiffs moved into evidence at the variance hearing on February 10, 2004 what is identified in the record as exhibit "A-2." That exhibit consists of a September 24, 2002 letter and attachments sent to Carl Darst from Ken Dewees, a representative of Miller Buildings, Inc. ("Miller"), a manufacturer of self-storage units. In his letter, Dewees refers to the building design loads and typical anchoring procedures for Miller storage units. The attachments include general notes about the Miller design criteria, drawings showing the Miller anchoring systems, general specifications, and several pages of product literature, including photographs and artistic sketches of the Miller units.

The record indicates that, prior to the Board's final decision, plaintiffs installed a single row of Miller storage units perpendicular to Hope Road, with the intention of retaining that row of units as part of the new site plan. However, several storage units from a different manufacturer, Sea/Land, were scattered in the rear of plaintiffs' property. The record further contains color photographs of the Miller units, and, by comparison, the Sea/Land units. It appears from the photographs that the Sea/Land units, which commonly are used in transportation, have been adapted and repainted for use on the property in a manner that attempts to have them resemble the Miller units.

Plaintiffs' application drew substantial commentary from the public and several Board members, both at the use variance phase of hearings*fn1 and at the ensuing site plan phase. According to the use variance resolution, several members of the public who testified expressed concern that plaintiffs "would not abide by any action that would be taken by the Board and that would result in constant enforcement problems." Other comments revolved around perceived detriment to, and the devaluing of, surrounding properties allegedly caused by plaintiffs' prior uses of their land.

At the October 12, 2004 hearing, plaintiffs presented the Board with an alternative plan for the uses of all of the considered lots. Accepting this revised plan as the basis for its action, the Board granted plaintiffs a use variance. The Board's resolution specifically found "that the positive criteria for a use variance can be established on the basis of aesthetic improvements." However, the Board predicated that variance approval upon plaintiffs' subsequent submission of site plans for all the lots.

In particular, the Board's resolution dated November 9, 2004 granting the use variance required plaintiffs to reconfigure Lot 28 in accordance with the revised plan submitted at the October 12, 2004 meeting. That plan envisioned taking a portion of the property from Lot 31.01 and adding it to Lot 28, thereby increasing Lot 28 to approximately two-and-one-half acres in size. The stated purpose of the size increase was to confine all non-residential storage activities on the property to Lot 28. Plaintiffs were also permitted to maintain "[t]he [existing] metal storage building on [Lot 31.01,]" which could be "used only for residential purposes."

The variance resolution further imposed other pertinent conditions. In particular, the Board required that "[t]he only activities authorized on Lot 29 shall be the single-family residence, together with such other accessory activities as may be authorized for single-family residential use." Lot 31.01 was similarly restricted to residential uses only, and the "existing trailers on [that] site" were to be removed. Additionally, the resolution restricted Lot 29.01 to residential uses as well as the storage and use of equipment and a fuel tank for plaintiffs' helicopter and tree service businesses.

With regard to Lot 28, the variance resolution imposed the following conditions:

Lot 28 shall be reconfigured in accordance with [the plan as proposed by plaintiffs on October 12, 2004]. Said reconfigured lot may be used for up to three double rows of self-storage units, up to 15 [units] on each side, for a total of not more than 90 units. Each row shall not exceed 150 feet in length.... Said site shall also be authorized for outdoor storage. All storage on site, whether outside or in the self storage facilities, shall not contain any flammable or other hazardous material[.]... Said lot shall be landscaped, fenced and buffered so as to screen the activities from surrounding properties and from Route 521. The outdoor storage shall not exceed 15 feet in height. No expanded use of Lot 28 shall be authorized until there is submitted, within three months of the memorialization [sic] of this action, a site plan which will be subject to the review and approval by the Zoning Board and which site plan shall then be accepted by [plaintiffs].

The variance resolution specifically cross-references exhibit A-2 from the February 10, 2004 hearing, which contained the building design, anchoring and other product information for the Miller units. However, the variance resolution did not explicitly state that plaintiffs could only install Miller brand units, or their equivalent, when they expanded the self-storage uses on site.

Following the Board's approval of the use variance in November 2004, plaintiffs filed their application for minor subdivision and preliminary and final major site plan approval with the Board on February 25, 2005. The application included the expanded use of Lot 28, as authorized by the variance, plus a plan for minor subdivision of Lots 28 and 31.01 that would result in taking acreage from Lot 31.01 to increase Lot 28 to slightly more than four acres. The Board held a series of eight public hearings on the application from the spring of 2005 to the fall of 2005.

At the first hearing on the site plan, held on May 10, 2005, Della Darst testified that plaintiffs intended to use "land and sea containers," which would be painted, insulated and vented for use as self-storage units and would be rented out by plaintiffs on Lot 28. She further testified that she and her husband intended to cover the majority of Lot 28's useable area with gravel to accommodate vehicular access to the storage units.

Throughout the course of the site plan hearings, Board members and members of the public expressed concern that plaintiffs' proposed use of Sea/Land containers conflicted with the positive aesthetic reasons that the Board had allegedly relied upon in granting the use variance to plaintiffs in the first place. The majority of the debate on this topic occurred at the hearing on August 9, 2005. Several speakers at that hearing expressed displeasure with the use of Sea/Land containers, asserting that the use of these containers violated the intent of the previously-granted variance. In particular, questions were raised about whether the Sea/Land containers were smaller than the Miller units and whether, once painted and otherwise adapted for use on the site, they would look inferior. On the other hand, other speakers felt the Sea/Land units were cosmetically equivalent to the Miller units and that the visual differences between the two kinds of units would not be appreciable from a distance. There also was some commentary suggesting that the Sea/Land containers were sturdier and safer than the Miller units.

At its November 1, 2005 meeting, the Board began to formulate its conditions that would be included in the site plan resolution. With respect to the kind of storage facilities allowed on the front portion of Lot 28, the initial draft resolution stated that the facilities were to be "manufactured self-storage units similar in character and quality to those which are contained on the property and shall not be the restored [Sea/Land] containers proposed by [plaintiffs]." After objections were raised by certain Board members, ...


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