On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-451-08-PW.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Baxter and Koblitz.
Plaintiff Ten Stary Dom Partnership (Dom), seeking finality, appeals the "without prejudice" portion of the trial court's July 13, 2010 order affirming the Borough of Bay Head Planning Board's (Board) denial of a bulk variance to defendant T. Brent Mauro. Dom also appeals the September 15, 2010 order denying reconsideration. Mauro cross-appeals from the court's entire decision. The Board maintains that the trial court orders should be affirmed in all respects, including the "without prejudice" provision. We reverse the trial court's determination and remand for the grant of the bulk variance, concluding that the Board's reasons for denial were insufficient.
This matter involves defendant Mauro's extended efforts to build a home on a rectangular 5019 square foot inherited property, Block 12, Lot 46 (Property), situated with only slightly more than a 10-foot frontage on Willow Drive, a 500-foot-long alley. The Property, located in an R-50 (single-family residential) zone, originally consisted of two lots, which defendant combined into one. Six houses surround the Property, which is designated as wetlands. It is located at the bottom of a slope where runoff water from Willow Drive and adjoining properties accumulates.*fn1 The Property has three easements, which run over the adjoining properties behind it; one for emergency access and two for utilities.
In September 2002, after receiving "an interpretation from the Borough Attorney that Willow Drive is an alley and not an approved or dedicated street," Mauro submitted an unsuccessful application to the Board to build on the Property. Mauro appealed the denial of this application, and on January 3, 2006, a Law Division "order adjourning trial"*fn2 allowed the governing body to consider "certifying Willow Drive as a municipal street," after improvements were made to the alley at Mauro's "sole cost and expense," so that Mauro could obtain a building permit after obtaining a "frontage variance [from fifty to ten feet] and any other variance, if required by the Planning Board." On January 17, 2006, the Borough Council of Bay Head passed a resolution certifying Willow Drive as a public street, pursuant to N.J.S.A. 40:55D-35, subject to Mauro widening Willow Drive to a width of twenty feet at his sole expense.
On August 29, 2006, Mauro filed an application to construct a single-family residence on the Property, requesting a bulk variance, pursuant to N.J.S.A. 40:55D-70c, due to the insufficient street frontage of slightly more than ten feet rather than the required fifty feet. The Board conducted a hearing on August 15, September 19, and November 28, 2007. Mauro testified and presented testimony from an engineering expert regarding drainage, fire safety and the positive and negative effects of use of the Property.
The Board asked two representatives from the Bay Head Fire Department to testify regarding fire safety as well. The overarching concerns of the Board were the drainage problems, the limited access for emergency personnel, and its view that the design of the proposed structure would not fit into the aesthetics of the surrounding homes. During the approval process, Mauro adjusted his plans at the suggestion of the Board members to reduce the size of the proposed structure from two and one-half stories to two stories, a vertical reduction of two and one-half feet, and a lot coverage reduction of three hundred twenty square feet. The Board members had sought a greater size reduction. According to the testimony of neighbors, the house would still be larger than the neighboring homes.
Mauro's expert, engineer Robert Burdick, testified that the two access areas provided by the easements, coupled with the 10-foot street frontage, "should mitigate the impact of the lack of 50 foot frontage" and provide sufficient ingress and egress.
Burdick had not yet designed the drainage system. He acknowledged that pipes would need to be put into the street and storm drains installed. The problem of water running off onto neighboring properties would also need to be addressed. He indicated that the wetlands area would need to be filled to prevent a water runoff onto neighboring properties, and he suggested putting "walls in behind off of the properties such that the adjacent properties' water goes to [the] site." Burdick admitted that he did not have specific data regarding the construction of a drainage system, but said that "[b]ased on 25 years of engineering experience I believe I can design something that will work on this site."
As to fire safety, Chief Vander Noot of the Bay Head Fire Department emphasized that fighting a fire on the Property was possible but difficult, although he did not believe the location was any more dangerous than some other places in Bay Head. He believed that the only significant limitation would be that only one fire truck could get down Willow Drive. He also noted that when a car is parked in the street, the truck is unable to go all the way down the street to the base of the Property. In the event of a fire, however, mutual aid companies would come in and station trucks on other streets, increasing the number of trucks available to fight the fire.
Assistant Chief William Boyle concurred with Vander Noot and noted that if Willow Drive is improved, the fire department could probably maneuver more than one fire engine on the road. He pointed out that the easement over the adjoining lots allows emergency personnel to cross the lots to access a fire hydrant that is approximately fifty feet away, as well as a second hydrant directly across the street from the easement. He said, however, that the "house behind another house" construction would present particular difficulties for fire-fighting. The limited frontage would somewhat impede their ability to fight a fire. Burdick admitted that if a fire truck were called to the Property, it would not be able to turn around to exit, but would instead have to back out of Willow Drive.
Speaking to the positive and negative effects of the land use, Burdick asserted that the impact from traffic, noise, lighting and odors would be minimal and that two goals of municipal land use law would be advanced: (1) promoting the establishment of appropriate population densities; and (2) promoting a desirable visual environment. An additional "major advantage" of the project, according to Burdick, would be the improvement to Willow Drive, which Mauro testified he was willing to accomplish by paving the street and adding curbs, as well as broadening the street.*fn3
After the town engineer recommended that the "Resolution of Approval" require Mauro to ensure an adequate drainage plan, the Board approved the bulk variance by a five-to-four vote and passed a memorializing resolution incorporating the engineer's recommendations on December 19, 2007. The resolution contained the following language: "The Applicant shall be obligated to provide specifications for a storm water management plan to be approved by the Board ...