JOHN PIERRO v. BOROUGH OF HOPATCONG BOARD OF ADJUSTMENT; R.J. INVESTORS LLC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1844-05T21844-05T2

JOHN PIERRO,

Plaintiff-Appellant,

v.

BOROUGH OF HOPATCONG

BOARD OF ADJUSTMENT;

R.J. INVESTORS LLC,

Defendants-Respondents.

____________________________________________________________

 

Submitted June 6, 2006 - Decided November 22, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, L-46-05.

Daggett, Kraemer, Eliades Vanderwiele & Ursin, attorneys for appellant John Pierro (John E. Ursin, of counsel and on the brief; Olga Kats-Chalfant, on the brief).

Dolan and Dolan, attorneys for respondent Borough of Hopatcong Board of Adjustment (William T. Haggerty, of counsel and on the brief).

Nusbaum, Stein, Goldstein, Bronstein & Kron, attorneys for respondent R.J. Investors, LLC (Larry I. Kron, of counsel and joins in the brief of respondent Borough of Hopatcong Board of Adjustment).

PER CURIAM

Plaintiff, John Pierro, appeals from an order dated November 29, 2005, entered in furtherance of the September 20, 2005 oral opinion by Judge B. Theodore Bozonelis in an action in lieu of prerogative writs. The order affirmed the grant of variances by the Borough of Hopatcong Board of Adjustment (Board) to defendant developer, R.J. Investors (the developer). The developer sought approval for three variances to construct a single family residential dwelling: (1) maximum lot coverage; (2) minimum fifty foot set back from the lake; and (3) construction in a steep/critical slope area in order to build a single-family residence and a dock/patio area on a lakefront lot. Plaintiff, an owner of land abutting the subject property, objected to the application for variances.

The subject property is an irregularly shaped parcel of land at Lake Hopatcong. The property, with the form of an hourglass, contains two sections where a home could be placed, one near the road and one closer to the lake. Separating these two parcels is an area of critical and steep slopes unsuitable for building. The developer sought a variance to disturb the critical slope area in order to construct a home.

The developer submitted an application for the variances and provided notice to the owners of property within 200 feet of the subject property, in addition to notice by publication as required by statute. The August 23, 2004 notice sent to homeowners stated that the applicant was seeking:

a variance permitting construction of a single family dwelling on property with a portion on steep or critical slopes located at Lakeside Avenue and designated as Block 50602, Lot 25 on the Township Tax Map. . . . In addition to the above approvals, applicant requests that the application be deemed amended to include any additional approvals, variances, exceptions or waivers determined to be necessary in the review or processing of this application, whether requested by the Board or otherwise.

The Board conducted the first hearing related to the defendant's application on September 8, 2004. At this hearing, it was first discovered that the proposed plans would also require a variance for construction within fifty feet of the lake. The meeting was adjourned so that the developer could investigate alternatives to the proposed design, reduce the size of the proposed home, and investigate alternate placement of the septic tank at the suggestion of the Board. The hearing of the application continued on November 10, 2004. After taking additional testimony from both plaintiff and the developer's engineers, Daren Phil and William Gregor, the Board approved the application, granting the variances to R.J. Investors. The Board of Adjustment, in its December 8, 2004 Resolution of Memorialization, found that the proposed home would be similar in size and appearance to the homes on lots in the area and that the variances could be granted without substantial detriment to the public good and without substantially impairing the intent and purposes of the zone plan and zoning ordinances.

Pierro then filed a complaint in lieu of prerogative writ, dated January 21, 2005. In its September 20, 2005 oral decision, the court affirmed the Board's grant of the variances. On appeal, plaintiff's concerns, which we address in turn, relate to the notice provided by the developer and the asserted lack of findings by the Board supporting a determination of hardship.

The R-1 zone requires a minimum lot area of 15,000 square feet, and the applicant's parcel contains an area of 34,440 square feet, which is more than twice the minimum required lot area. The proposed home location complied with front yard, rear yard, side yard, lot width and lot depth requirements and the proposed size of the home complied with the floor area ratio ordinance. The floor area ratio permits homes with a floor area ratio of 20 percent. The applicant's home as proposed had a floor area ratio of 13.7 percent and the home as designed complied with the permissible building height. Although a variance is needed for construction within fifty feet of the shore of Lake Hopatcong, the Hopatcong Borough ordinance permits fifteen percent of the water area to be occupied by dock space. The permissible area of the dock would have been 1,275 square feet and the applicant proposed an area of 480 feet.

The applicant at the hearing on September 8, 2004 stated that a variance would be needed for construction of a driveway, and a small portion of the dwelling would be located in a steep and critical slope area. The dwelling house was to be constructed more than fifty feet from the lakeshore, however, the applicant proposed patio work around a dock and the patio work would be located within fifty feet of the lakeshore. Therefore, the zoning board determined that a variance would be needed for construction within fifty feet of the lake.

Plaintiff alleges that the developer's failure to note all the required variances in its notice violated the Municipal Land Use Law (MLUL), thereby depriving the Board of jurisdiction to hear the application. Proper notice is a prerequisite to a zoning board's jurisdiction, and lack of proper notice will be fatal to a board's approval. Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adjustment, 154 N.J. 62, 79 (1998). We find that, although the developer did not list every variance that would be required, the notice was sufficient and the Board had authority to entertain the application.

Where notice to the public is required, "such a notice should fairly be given the meaning it would reflect upon the mind of the ordinary layman, and not as it would be construed by one familiar with the technicalities solely applicable to the laws and rules of the zoning commission." Perlmart v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 238 (App. Div. 1996) (quoting Holly Dev., Inc. v. Bd. of County Comm'rs, 342 P.2d 1032 (Colo. 1959). The critical element of notice is an accurate description of what the property will be used for under the application. Scerbo v. Bd. of Adjustment of City of Orange, 121 N.J. Super. 378, 388 (Law Div. 1972).

Here, the first notice alerted the public to the fact that the builder was seeking to construct a single-family dwelling in a steep slope area. This was sufficient notice to confer jurisdiction upon the Board. Perlmart, supra, 295 N.J. Super. at 238. It alerted homeowners to the type and nature of the desired construction on the property. Further, prior to the second hearing date, defendant gave notice of the November 10, 2004 hearing by a notice dated October 13, 2004, that included the variance for a building within fifty feet of a lake.

Courts give deference to a municipality's broad discretion and will reverse only when that municipality has acted in an arbitrary, capricious or unreasonable manner. Booth v. Bd. of Adjustment of Rockaway, 50 N.J. 302, 306 (1967); Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296-97 (1965). The MLUL requires that, when granting a variance under N.J.S.A. 40:55D-70, the Board of Adjustment must make factual findings to support the grant of a variance. Here, after taking into consideration all the unique characteristics of the subject property, the Board made the following specific findings to support its determination that granting the variances would be in keeping with the surrounding properties and that there would be no substantial detriment to the public good:

The Zoning Board finds that these variances may be granted pursuant to N.J.S.A. 40:55D-70c(1) and c(2). The Zoning Board finds that the purposes of the Municipal Land Use Law would be advanced by granting the variances and . . . further finds that the variances may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zoning plan and zoning ordinance. The Applicant's proposed dwelling house is similar in style and size to the dwelling houses in the area of Applicant's property. The location of the dwelling is similar to the location of lakefront dwellings in the area of Applicant's property. Although the lot is steeply sloped, it is not uncommon for properties surrounding Lake Hopatcong to have similar slopes and to be developed in a similar manner. With appropriate construction controls and soil erosion controls, adverse impacts during construction and following completion of the home may be mitigated. The Applicant has offered to provide a conservation easement prohibiting development of the non-disturbed areas subject to the review and approval of the Zoning Board. The Borough of Hopatcong will be a beneficiary of the conservation easement and the conservation easement will be enforceable by the Borough of Hopatcong.

Additionally, the parties both produced experts at the hearings, who gave testimony regarding placement of the home. The developer's engineer testified as to the necessity of placing the septic tank in the roadside parcel and the house by the lake due to the conditions of the property, while plaintiff's engineer testified that the developer could construct both the septic tank and the house on the roadside parcel with changes to the proposed building plan. The Board chose to accept the testimony of the developer's expert in that regard. That was a determination of credibility and an exercise of discretion that we will not disturb. Harvard Enters., Inc. v. Bd. of Adjustment of Madison, 56 N.J. 362, 368 (1970) (holding that a court should not substitute its judgment for that of the municipality unless the decision was arbitrary, capricious, or unreasonable). There is, within the record, sufficient evidence regarding the hardships of the property to support the court's deference to the Board's determination. Their actions were not arbitrary, capricious, or unreasonable.

Affirmed.

 

We note that the Borough of Hopatcong adopted Ordinance 7-2006, effective April 11, 2006. That ordinance increased the percentage of maximum lot coverage to twenty percent, a percentage greater than that of the developer's proposal. That change tends to moot concerns about notice and hardship relating to maximum lot coverage. We are permitted to take judicial notice of the Ordinance, pursuant to N.J.R.E. 201(a) and (d).

(continued)

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A-1844-05T2

November 22, 2006