On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4680-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges J. N. Harris and Newman.
Defendant, the Zoning Board of Adjustment of the Borough of Hawthorne (the Board), appeals from a trial court order reversing the Board's decision to deny the application of plaintiffs, Joseph W. Luddy, Jr., Elena P. Luddy, and Deborah Lee, for relief from municipal ordinances by way of variances and permits to construct a one and one-half story raised ranch house. We affirm.
The relevant facts, as testified to and revealed by the record, may be summarized as follows. Lee and Gene De Augustines own Lot 4, Block 82, a landlocked parcel located off of MacFarlan Avenue. The lot consists of 24,619 square feet, or .57 acres, of land and is located on a north-south axis across a steep slope falling from west to east across the property. Presently, there is no access to the lot from the street. On the lot, there is an above-ground pool and two sheds. While the lot is located in an R-5 Planned Unit Development zone, it defaults to the requirements of an R-1 One Family Residential Zone.
By virtue of a court order, Lee was granted the authority to sell the property without De Augustines's consent. The Luddys contracted to purchase this property.
Joseph Luddy already owns, with his mother Louise, Lot 3, Block 82, a landlocked property which borders the subject property to the west. Luddy lives there with his wife, his family, and his mother. Joseph and his mother, Louise Luddy, also own Lot 8, Block 76, which borders Lot 4, Block 82, to the south on MacFarlan Avenue. Lot 7, Block 76, which partially borders Lot 4, Block 82, to the east, is owned by Joseph and his wife. Lot 7 has a two-family house on it and is a rental property.
Lee authorized them to apply to the Board for variances and permits to develop the property. The Luddys proposed to remove the pool and sheds on the property and to build a one-family raised ranch consisting of a basement and a living space above it. Plaintiffs proposed to provide access from MacFarlan Avenue to the subject property by way of a paved driveway on Lot 8, Block 76. This driveway already provides access to Lot 3, Block 82, the Luddys' current home.
Plaintiffs' application required relief by way of two variances from section 87-4 of Hawthorne's Development Regulations, which limits the disturbance of steep-slope areas. Section 87-4 limits the maximum disturbance of a 15 to 19.99 percent slope to 40 percent of the slope's area and a 20 to 24.99 percent slope to 20 percent of the slope's area.
Plaintiffs' proposal would disturb 56.2 percent, 4,253 of 7,562 square feet, of the area of a 15 to 19.99 percent slope and 44.8 percent, 447 of 997 square feet, of the area of a 20 to 24.99 percent slope.
Plaintiffs also required variances for the requirements under section 225-3, which requires lots to front on a street, and under section 225-11, which limits the maximum length of a wall in a front yard to ten feet.
A public hearing on the application was held by the Board on August 18, 2008. Joseph Luddy testified that if the application was not approved, he "would buy the property for about five percent of the price and keep it as a yard." Luddy also said that Lee previously owned Lot 7, Block 76, which abutted Lot 4, Block 82, but that the Luddys now own it.
Bruce D. Rigg, an engineer and land surveyor, testified for the applicants. He stated that the property's proposed drainage system would cause less runoff from the site than there is now. All of the water in the roof drains would be collected and run into a dry well system. Water would also be collected from the paved driveway and run into the dry well system. According to Rigg, water would only run from the subject property onto Lots 5 and 6, fronting on Goffle Road, by way of a 16 foot wide strip instead of an 80 foot wide strip and that the amount of water going in that direction would be decreased by 80 percent. He explained that the development would not create a steeper site but rather, by "creating retaining walls and putting areas that are a little more usable for [the Luddys]," the development would actually make the land more usable with a lesser chance of runoff in certain areas. He affirmed that the development would be in accordance with the development in the neighborhood.
John M. Pacholek, the Borough's engineer who reviewed Rigg's report and heard his testimony, agreed with Rigg's calculations and was satisfied with Rigg's answers in connection with the variance requests.
Edward A. Easse, plaintiff's architect and planner, testified. According to Easse, he made sure that the development fit within the requirements of the zone. He stated that there would be adequate access to the new lot, as the paved driveway is presently being used for Lot 3, Block 82, and would only require an extension to access the subject property. Without using that paved driveway, there would be no other access to a street. He said that this would sufficiently provide access for the police, an ambulance, or a fire engine. As the former Fire Chief of the neighboring Glen Rock Fire Department, Easse indicated, as a matter of firefighting protocol, that a fire engine would not travel all the way up to the house to be on Lot 4.
Easse testified that if the Board granted the application, there would not be a negative impact on Hawthorne's zoning plan and scheme. He said that less stormwater would help the drainage problem for the neighbors to the east.
He claimed that the lot qualified as a hardship because it is a "freestanding, buildable lot that basically is subdivided and is on the tax rolls," but is ...