JOSEPH W. LUDDY v. ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF HAWTHORNE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0951-09T20951-09T2

JOSEPH W. LUDDY, JR.,

ELENA P. LUDDY and

DEBORAH LEE,

Plaintiffs-Respondents,

v.

ZONING BOARD OF ADJUSTMENT

OF THE BOROUGH OF HAWTHORNE,

Defendant-Appellant,

and

THE BOROUGH OF HAWTHORNE,

Defendant.

______________________________________________

Argued May 5, 2010 - Decided June 17, 2010

Before Judges J. N. Harris and Newman.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Docket No. L-4680-08.

Charles C. Collins, Jr. argued the cause for appellant.

Ralph E. Faasse argued the cause for respondents (Carbone & Faasse, attorneys; Mr. Faasse, on the brief).

PER CURIAM

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 landlocked. Essentially, the lot would be unusable.

Under a c(2) variance analysis, Easse testified that the proposed dwelling conformed with the Borough's planning. He noted that there was no negative impact with respect to light, air, safety, or water runoff. He opined that the proposed drainage would increase the quality of life for the property owners located below the subject property and fronting on Goffle Road.

Easse also testified that the development would not be substantially detrimental to the zoning plan and scheme. According to Easse, the development would be the "smallest, and also the least in height . . . that could [be] put on this property."

During the public comment portion of the hearing, several neighbors expressed their concerns on the record with respect to the water runoff. They also feared silt and mud flowing down to their properties during the construction phase. Rigg allayed their fears by indicating that the loads of fill to be brought to the property would be compacted to the ground and not left standing in mounds and that the contractors would not be working with dirt in the rain. Additionally, he described the curbing that would be installed in the driveway area to further prevent runoff from the macadam surface.

The Board rejected the application at the conclusion of the hearing by a vote of four to three. The Board adopted a resolution memorializing this action on September 15, 2008.

Plaintiffs filed a complaint in lieu of prerogative writs on November 7, 2008, seeking an approval of its application.

On July 7, 2009, Judge Anthony J. Graziano signed an order directing the Board to review and supplement its findings of fact and conclusions of law.

The Board complied with the order by issuing an August 5, 2009 memorializing resolution with greater detail in its findings of fact and determinations. The Board did not find that the fact that the subject property is landlocked qualified as a hardship for which a c(1) variance could be offered, noting that at one time Lee owned Lot 7, Block 82, which fronted MacFarlan Avenue and that by divesting herself of this ownership, she caused it to become landlocked and created the hardship. The Board also denied the application on the basis of a hardship because Luddy stated he would purchase the property for another use if the application were to be denied.

With respect to a c(2) variance, the Board determined that the proposal did not present a better zoning alternative and that the only benefits would accrue to the developer and not to the Borough.

While the Board conceded that the proposal does not substantially impair the zone plan because it is a permitted use, it found plaintiffs did not meet their burden of demonstrating that the development would not be substantially detrimental to the public good. The Board relied on downhill neighbors who testified about serious damage caused by stormwater runoff. It emphasized that Rigg admitted that the proposed retention system "was effective on paper." The Board found the testimony with respect to the control of the stormwater to be unpersuasive.

Judge Graziano then heard oral argument on August 18, 2009, and reversed the denial of the application. The trial court acknowledged the deference it owed the Board but found that the decision was not based on competent evidence. The court noted that while the neighbors' statements about the water runoff may be accurate, the neighbors were not competent to say what caused the runoff. The judge observed that no expert opinion pinpointed that the water runoff comes from the subject property or that the runoff would increase if the application was granted. On the other hand, the court noted that plaintiffs presented Rigg's testimony that the runoff would actually be reduced as a result of the development and that Rigg's calculations were not challenged by competent testimony. The court also recognized that the Borough's own engineer, Pacholek, did not dispute any of Rigg's calculations or findings.

The court found that adequate access would be provided to the property through the paved driveway already used by the Luddys to reach their present house on Lot 3. There was no testimony indicating that the access would be inadequate for an emergency vehicle or for general use of the property.

With respect to the retaining wall, the court found that they were common in the area. Its off-street location would not present a problem.

Lastly, the court found that a hardship was sufficiently established because of the unusual shape and topography of the property.

On appeal, the Board raises the following issues for our consideration:

POINT I

PLAINTIFFS HAVE NOT MET THE BURDEN OF PROOF REQUIRED FOR THE RELIEF REQUESTED.

POINT II

THE BOARD'S DECISION WAS NOT ARBITRARY, CAPRICIOUS OR UNREASONABLE.

POINT III

A NEGATIVE CRITERION WAS NOT MET.

We need not address the issue of whether this was a self-created hardship under Point I because we are satisfied that the Luddys satisfied the requirements for c(2) variances.

In its resolution, the Board denied plaintiffs a c(2) variance because "there are no benefits to be gained by the development that would substantially outweigh the detriments" and "[t]he proposal does not present a better zoning alternative and the only benefits accrue to the developer and not the Borough of Hawthorne."

N.J.S.A. 40:55D-70(c)(2) directs that, in pertinent part, a c(2) variance shall be granted "where in an application or appeal relating to a specific piece of property the purposes of this act . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment."

A c(2) variance "'must be rooted in the purposes of zoning and planning itself and must advance the purposes of the MLUL.'" Smith v. Fair Haven Zoning Bd. of Adjustment, 335 N.J. Super. 111, 122 (App. Div. 2000) (quoting Kaufmann v. Planning Bd. for Warren Twp., 110 N.J. 551, 562 (1988)). It is inappropriate for a board to grant a c(2) variance when "merely the purposes of the owner will be advanced." Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405 N.J. Super. 189, 198 (App. Div. 2009) (quoting Kaufmann, supra, 110 N.J. at 563). Rather, the variance "must actually benefit the community in that it represents a better zoning alternative for the property." Ibid. (quoting Kaufmann, supra, 110 N.J. at 563). For this variance, the focus is "on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community." Ibid. (quoting Kaufmann, supra, 110 N.J. at 563) (emphasis omitted).

Substantial evidence, as Judge Graziano found, did not support the Board's findings that no benefits are to be gained by the development that would substantially outweigh the detriments, that the only benefits accrue to the developer, and that the proposal does not present a better zoning alternative.

Both Easse and Rigg provided sufficient testimony to support the granting of this variance. Plaintiffs presented testimony that the development would be aesthetically pleasing and fit in with the neighborhood development. See Ciocon v. Planning Bd. of Borough of Franklin Lakes, 223 N.J. Super. 199, 208 (App. Div. 1988) (recognizing that the aesthetics of a development "may be a valid reason to grant a variance" (citing N.J.S.A. 40:55D-62(a); Commons v. Westwood Zoning Bd. of Adjustment, 81 N.J. 597, 610 (1980))); see also N.J.S.A. 40:55D-2(i) (stating that a purpose of the act is "[t]o promote a desirable visual environment through creative development techniques and good civic design and arrangement"). Similar retaining walls have also been constructed on many other properties in the area, creating a step effect; the height and design of the house is consistent with the other houses; it complies with the master plan as it is a one-family residence; and the development is an aesthetic improvement over the dilapidated sheds and pool that it is replacing.

Moreover, the development's storm system has been designed to reduce water runoff. See N.J.S.A. 40:55D-2(b) (stating that a purpose of the MLUL is "[t]o secure safety from fire, flood, panic, and other natural and man-made disasters"). The Board mistakenly found that "the only benefits accrue to the developer and not the Borough of Hawthorne"; the benefits of the deviations, in fact, accrue to the neighborhood as well as the developer. Rigg testified that the storm management system would not only cause zero increase in the runoff from the site but that it would decrease the runoff from the development. Pacholek's report concurred with Rigg's calculations, and at the hearing, Pacholek testified that he was satisfied with Rigg's answers. As the trial court pointed out, the Board improperly disregarded Rigg's expert testimony regarding the water runoff in favor of the non-expert testimony and complaints of neighbors. See Cell S. of N.J. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 87-88 (2002) (finding that the zoning board impermissibly disregarded expert testimony that a cell phone tower would not have adverse effects on the environment or the aesthetics of the area in favor of resident complaints of the negative visual impact and the adverse effect the tower would have on the surrounding property values). "Prudence dictates that zoning boards root their findings in substantiated proofs rather than unsupported allegations." Id. at 88.

With no proof of other detriment, plaintiffs established that the benefits of the deviations from the zoning ordinance substantially outweigh any detriments.

We agree with the trial court that the Board abused its discretion in finding that plaintiffs did not satisfy the positive criteria for a c(2) variance.

In Point III, the Board argues that plaintiffs did not satisfy the negative criteria necessary for either a c(1) or c(2) variance. While it concedes that the proposed development does not substantially impair the intent and purpose of the zone plan, the Board asserts that "[s]tatements that the completed project will reduce overall runoff do not reflect the reasonable concerns of the property owners down the hill during the clearing and construction phases." Moreover, it argues that "the theoretical conclusions of the applicants' engineer posed a risk the Board was unwilling to take."

The Board's resolution found that, "viewed in the abstract, the proposal does not substantially impair the zone plan or ordinance because it is a permitted use in the R-5 Planned Unit Development Zone." However, the Board could not "conclude that the development of [L]ot 4 would not substantially impair the public good." The Board relied on plaintiffs' attorney's concession that there are presently water and drainage problems in the area and the testimony of downhill neighbors that their properties have sustained serious damage from stormwater runoff which was "attributable to prior uphill construction." The Board also doubted the practicality of Rigg's storm system, implying that while on paper it may be effective, in practice it will not. Lastly, it found Rigg unpersuasive.

To obtain a variance or other relief, an applicant must satisfy "negative criteria" along with the aforementioned "positive criteria." N.J.S.A. 40:55D-70. This requires a "showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." Ibid.

The only possible detriment that was raised before the Board is the effect of the water runoff. However, as already discussed, no competent expert testimony was offered to establish that such a detriment would exist. Instead, only neighbors testified that previous developments have caused substantial water runoff problems. They were not competent to testify as to the cause of the runoff. On the other hand, Rigg's expert testimony established that the development would actually provide a benefit upon the neighborhood by reducing the water runoff. He also indicated that a silt fence would prevent soil from running off during the construction phase. Thus, the Board abused its discretion in determining that plaintiffs have not established that a benefit would be gained by the development that would substantially outweigh the detriments.

Because the Board concedes that the proposal does not substantially impair the intent and purpose of the zone plan, only a brief discussion is necessary with respect to the satisfaction of this criterion.

Our Supreme Court has stated that this "is a relatively uncomplicated issue, and depends on whether the grounds offered to support the variance, either under subsection c(1) or c(2), adequately justify the board's action in granting an exception from the ordinance's requirements." Lang v. Zoning Bd. of Adjustment of the Borough of N. Caldwell, 160 N.J. 41, 57-58 (1999).

The stated purpose of the steep-slope zoning regulation is "to provide for reasonable control of development within the steep-slope areas of the borough in order to minimize the adverse impact caused by the development of such areas, including but not limited to erosion, siltation, flooding, surface water runoff and pollution of potable water supplies from point and nonpoint sources." Section 87-1. Moreover, disturbances beyond the limits of the steep-slope regulation require an applicant to show to the satisfaction of the Borough Engineer that:

Proposed excavation, soil removal or disturbance of soil shall be consistent with the intent of this article and shall be executed in a manner that will not cause excessive erosion or other unstable conditions.

Provision shall be made for any structures or protective measures that may be required for the protection of the public safety, including but not limited to retaining walls, headwalls, and fences.

Provision shall be made for the proper disposition of surface water runoff so that it will not create unstable conditions. Appropriate storm drainage facilities shall be constructed as deemed necessary and adequate protective measures shall be provided for downstream properties.

Rigg's testimony and report, and Pacholek's answer that he was satisfied by Rigg's testimony, demonstrate that the grounds offered to obtain the variances adequately justify an exception. Rigg testified that the plan is in compliance with section 87-4. Indeed, retaining walls are to be constructed as part of the development. His report showed that the storm system would actually decrease the water runoff.

Furthermore, "[a]n applicant can satisfy the negative criteria if the proposed structure would not be significantly out of character in style or size." Simeone v. Zoning Bd. of Adjustment of Twp. of E. Hanover, 377 N.J. Super. 417, 427 (App. Div. 2005). Here, the house would be similar in style to the surrounding houses in the neighborhood. As the Board conceded in its resolution, the development would not substantially impair the zone plan because the proposed one-family residence is a permitted use in the zone. Easse testified that the plan would not in any way be substantially detrimental to the zoning plan and scheme. Moreover, retaining walls also appear on the surrounding properties.

Here, it would be practically difficult and a hardship for the lot to front on a street, under N.J.S.A. 40:55D-36, because the property is landlocked. There is nothing that can be done to rectify this condition. However, along with Rigg's and Easse's testimony, the fact that the paved driveway already provides access to the other lot established that the paved driveway can accommodate adequate access for firefighting equipment, ambulances, and other emergency vehicles, satisfying N.J.S.A. 40:55D-36. Since Joseph Luddy and his mother own Lot 8, the easement necessary to cross Lot 8 will obviously be forthcoming.

The Luddys demonstrated that their proposal satisfied the negative criteria. The trial court correctly reversed the action of the Board in denying the necessary variances to build a raised ranch on the landlocked lot.

 
Affirmed.

N.J.S.A. 40:55D-70(c)(2).

N.J.S.A. 40:55D-70(c)(1).

(continued)

(continued)

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