On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9294-06.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sabatino.
Plaintiff Robert Leonard appeals from an order dismissing his action in lieu of prerogative writs following the Haworth Zoning Board of Adjustment's (Board's) denial of his application for a variance for a proposed driveway on plaintiff's undeveloped lot. For substantially the reasons articulated by Judge Joseph S. Conte, Sr., in his written opinion and in the resolution of the Board, dated November 7, 2006, we affirm.
The facts that follow are relevant to this appeal. Plaintiff owns a vacant parcel of land designated as Lot 1, Block 142.01, located in the "A" residential zone of the Borough of Haworth. The lot is approximately 1.5 acres and is irregular in shape; it is 800 feet in length along its longest border to the west, and only 82 feet at its widest point. The western and southern borders of the property are constrained by steep slopes created from the development of the bordering rail line by a previous owner, Penn Central Corporation.
Plaintiff's parcel is designated as a "through" lot with frontage on two streets. The lot is non-conforming in both lot width and lot frontage. It has approximately fifteen feet of road frontage to the south on Massachusetts Avenue, and eighteen feet of road frontage to the north at the intersection of Houston Place and Ivy Avenue. This intersection connects to the Ivy Avenue Bridge, which is a one-lane overpass over the West Shore Railroad line.
Plaintiff's traffic expert, Barry Sutherland, testified that the bridge is less than fifty feet from the site of plaintiff's proposed driveway. He stated that, were the driveway to be situated on Ivy Avenue, as proposed, a right-hand-turn out of the driveway and into the driveway could be made safely, but a left-hand-turn could not be made safely. Mr. Sutherland did not do a traffic study for access via Massachusetts Avenue as he was under the impression that a driveway could not be constructed on the southern portion of the property because it was protected by the Critical Environmental Area (CEA) ordinance. All of the parties later agreed that the CEA ordinance is not applicable to driveway construction.
Plaintiff's engineering expert, Mr. Piazza, testified that, in his opinion, it was possible, from an engineering perspective, to locate the driveway on the southern end of the property; he also was under the impression that the CEA ordinance prevented access from the south. Plaintiff's other engineering expert, Mr. Weissman, was of the opinion it was not feasible to construct a driveway off the southern end of the property to access Massachusetts Avenue.
The Board denied plaintiff's application for a variance in a resolution dated November 7, 2006. The reasons for the denial included the Board's finding that allowing access to the property from Ivy Avenue would result in substantial detriment to the public good, and that "the benefit to the property did not outweigh the detriment to the zone plan." More particularly, the Board found that "locating the driveway at the entrance to the bridge would create safety hazards for vehicles leaving and entering the property and for vehicles and pedestrians, including children, using the bridge." In addition, the Board determined that the proposed driveway created access problems for emergency vehicles.
On December 15, 2006, plaintiff filed his complaint in lieu of prerogative writs against the Board. The action was bifurcated for further proceedings by order dated March 28, 2007. The case was tried before Judge Conte on June 14, 2007. On July 26, 2007, the judge rendered his decision in favor of the Board. On October 4, 2007, the court entered judgment on count one in favor of defendants and dismissed plaintiff's complaint with prejudice.
On appeal, plaintiff raises the following arguments:
POINT I: THE BOARD'S DENIAL OF THE REQUESTED VARIANCES WAS ARBITRARY, ...