On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1730-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2012 -
Before Judges Alvarez and Skillman.
In this action in lieu of prerogative writs, plaintiff Anthony Ventre appeals from an order of the Law Division dismissing his complaint and affirming the decision of defendant Borough of Ridgefield Planning Board (Board), "granting site plan approval with waivers and variances" to defendant C & Y Bergen, LLC (C & Y).
On appeal, Ventre argues that the trial court erred because (1) the Board lacked jurisdiction to grant site plan approval and variances; (2) the Board granted waivers when variances were required; (3) it did not admit into evidence Ventre's expert report or testimony; and (4) it did not find that the Board's grant of variances was improper. After reviewing the record in light of the contentions advanced on appeal, we reverse the grant of site plan approval and remand for further proceedings before the Board.
Ventre's property adjoins land owned by C & Y in a commercial zone of the Borough of Ridgefield (the Borough). C & Y plans to demolish the residential dwelling now located on the property and replace it with a 4998 square foot, two-story commercial building, with retail space on the first floor, and a dentist's office and professional office on the second.
The Board's seventeen-page December 15, 2009 authorizing resolution summarized C & Y's submissions, including a history of the initial application and subsequent modifications, and the multiple hearings conducted as a result. Over the course of the hearings, C & Y presented the testimony of various expert witnesses, which we summarize. Ventre testified in opposition to the application and cross-examined the witnesses, but did not present expert testimony of his own.
At the September 15, 2009 hearing, Steven Collazuol, C & Y's site plan engineer, explained that even after substantial plan revisions, C & Y still required four variances in order to build on the 10,553 square foot lot: for the front yard setback, lot coverage, landscape requirements, and number of parking spaces. Design waivers were required for parking space length, drive aisle width, the buffer strip, and the creation of several tandem parking spaces. Furthermore, Collazuol had changed the drainage design, providing a retention system by way of a catch basin. He also noted that a revised drainage plan, as well as a soil report, had been forwarded to the Board engineer.
C & Y's traffic and transportation expert, Louis Luglio, testified about "vehicular access to and from the site." He opined that the plan "definitely meets the standards for safety and efficiency . . . ."
In order to align the proposed structure with other office buildings on the street, a setback variance was required. Ken Ochab, C & Y's planner, explained that doing so would, in fact, provide a more "consistent streetscape." He also pointed out that this would leave an "additional rear yard setback[,]" benefiting the residential zone located immediately to the rear of the property. The proposed plan included more landscaping than found on either of the two adjacent properties to the south.
In support of the parking variances, Ochab proffered that retail and office uses peak at different times: retail on the weekend and office during the week. Because of the mixed use, he did not consider the parking shortfall to be critical. There would not be "any substantial negative impact" and the project would in fact "support the commercial zone and . . . enhance the visual environment of Bergen Boulevard . . . ."
Molbong Choi, a principal in C & Y and the dentist who intends to occupy the professional office, agreed to reduce the number of required parking spaces by dedicating only 1300 square feet to the dental office and 1200 square feet for her personal office. She was also willing to reduce the size of the proposed building, asked for the opportunity to revise the plans accordingly, and subsequently did so.
During the hearings, Ventre contended that C & Y's presentation contained inaccuracies regarding coverage, parking, and building height. He claimed that many residents of Bergen Boulevard had concerns about the project, and proposed that the applicant eliminate the retail space entirely.
At the last public hearing on November 17, 2009, Collazuol explained the final revised site plan. The square footage of the proposed structure had been reduced to 4998 square feet. By removing approximately 300 square feet from the second story, five parking spaces could be reconfigured to meet or exceed the required length of twenty-two feet. The front setback was increased from 8.5 feet to 9.2 feet, although a variance was still necessary as the zoning ordinance called for a twenty-foot setback. Based on the proposed tenancy, twenty-three parking spaces were required, but the revised plan included only nineteen. Collazuol reiterated that the applicant sought design waivers for parking space depth, buffer strip, drive aisle width, three tandem parking spaces, and the requirement of a 500-foot radius for the drainage area.
When Ventre asked for a copy of applicant's drainage report at the final hearing, C & Y's counsel responded that Ventre was entitled to obtain one by making the appropriate Open Public Records Act (OPRA) request. After listening to Ventre's detailed statement in opposition, the Board voted five-to-two in favor of the application and issued its formal resolution on December 15, 2009.
The resolution included extensive findings of fact and conclusions of law, and approved the application subject to detailed conditions. ...