On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-793-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and Messano.
Plaintiff Christopher Wilcox appeals from the judgment of the Law Division dismissing his complaint in lieu of prerogative writs, and affirming the denial of his development application by defendant, Township of Wall Planning Board (the Board).*fn1
Plaintiff is the owner of property located near the intersection of Route 34 and Paynters Road, designated as Block 813 Lots 1 and 2 (the property or the site). The property is located in the OB-20 Zone that permits office buildings. It is triangular in shape, fronting on Route 34, backing on to Paynters Road, and consisting of 47,553.01 square feet. Lot 1 contains "two small one story buildings," described in the record as "dilapidated shacks." Lot 2 is vacant.
Plaintiff filed a development application with the Board seeking the demolition of the existing buildings, merger of both lots, and construction of a single-story, 5300 square foot office building with "appurtenant parking, landscaping, lighting, water and sewage." He requested "C-1" bulk variances, minor subdivision approval, and site plan approval, as well as a tree removal permit. The bulk variances sought were as follows: minimum lot depth in the zone was 150 feet, and the proposed lot depth was 88.2 feet; the ordinance required a 50-foot front yard setback, and the application proposed twenty-foot setbacks from both Route 34 and Paynters Road. Plaintiff proposed a widening of Paynters Road permitting entry into the property from both thoroughfares. The Board's engineer described the vehicular access plan as "right-in/right-out to Route 34 and [a] full movement driveway to Paynters Road."
The Board heard testimony on plaintiff's application over five separate evenings during which plaintiff presented the testimony of his various experts. It is fair to say that the hearings reflected the Board's recognition of the need for variance relief based upon the irregular shape of the property and its narrow depth. However, members of the Board and residents of the bordering Orchard Crest residential development, expressed concerns over the plan for dual vehicular access from Paynters Road, and the proposed clearing of mature trees along that street which, it was claimed, served as a sound and visual buffer from the Route 34 highway. Plaintiff sought to address those issues by recalling its expert engineer who presented a modified landscaping plan.
Regarding the setback variances, the Board members quizzed plaintiff's experts about the possibility of constructing a narrower building, or making it two stories instead of one. Plaintiff's experts conceded that in either case, the building would come closer to conformity, but the need for a variance would not be eliminated. Plaintiff's architect indicated that a one-story building was proposed to "keep it low in stature because of its proximity to" the neighboring Orchard Crest development. The Board asked if "there was any reason" the building could not be narrower. The architect responded that the proposed design was adopted "for marketability purposes."
Board members also expressed concerns about the location of the building on the site and suggested that it be moved southward to increase the front yard area along Paynters Road. They also expressed concern about the need for access from both streets. Plaintiff's traffic engineer, however, opined that dual access would "operate safely and efficiently on both . . . Paynters Road and Route 34 . . . ." He further believed that the low volume of traffic using the office would not adversely impact traffic patterns. Despite the low volume of traffic, the engineer nevertheless contended that two access points to the site were preferred. He conceded that the site "would work" with one, "but not as well as . . . currently designed."
The Board unanimously denied plaintiff's application. In its January 7, 2008 memorializing resolution, the Board took note of the testimony of plaintiff's traffic engineer that "there w[ould] be less than 6-8 trips to the site during peak business hours." It rejected the expert's opinion that access from Paynters Road was "necessary," instead noting that vehicles could access the site from Route 34 by driving an additional mile and making a u-turn. The Board found "this inconvenience . . . minor compared with the negative impact to the neighbors . . . as a result of the development and driveway."
The Board also rejected the architect's testimony that the proposed building width of 65 feet was the "best way to deal with the site . . . ." Instead, the Board concluded a narrower building "would lessen the impact of the setback" on both roads and be "more appropriate for this unusual shaped lot."
While "recogniz[ing] its responsibility to work with an applicant on difficult[-]shaped property," the Board could find no reason to justify a 20 foot setback, the "destr[uction] [of] all or most of the existing trees along Paynters Road," or the need for a second access point. The Board concluded that "granting [the] relief requested would have a substantial negative impact on both fronts," and denied the application.
Plaintiff sought review by the Law Division. Citing relevant case law, the judge acknowledged the deference accorded to the Board's denial of a variance application. In his written opinion that accompanied the order under review, the judge concluded that plaintiff had failed ...