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Baum v. Planning Board of the Borough of Bernardsville

A-1266-07T2 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; SUBDIVISIONS; RSIS — A zoning board, when reviewing a minor subdivision application, need not apply the same strict criteria of the Residential Site Improvements Standards as that applicable to major subdivision and site improvement applications because, under such circumstances, a court can grant exceptions as it deems appropriate.

Homeowners applied to subdivide their twelve-acre lot into two parcels. They also sought a variance to build a house on what would have been a landlocked vacant lot if the subdivision was approved. The property had fifty feet of road frontage, but no driveway to the road because of steep slopes and multiple conservation easements. A private driveway provided access to the property. Neighbors who shared the driveway objected to the application. The board denied it. The homeowners appealed the board’s denial.

The lower court remanded the case for the board to: (i) explain how a perceived detriment to the policy imbued in the municipality’s Master Plan was sufficient to deny unrelated variances when there had been no detriment to the zoning ordinance and the homeowners had satisfied the positive criteria; and (ii) advise whether the Residential Site Improvement Standards (RSIS) applied to the driveway, and if so, whether the homeowners were entitled to a de minimus exception.

On remand, the board again denied the homeowner’s application. It ruled that the RSIS applied to the proposal and refused to grant an exception to the requirements because the requested deviations were too numerous and substantial. It further held that subdividing the lot would undermine the Master Plan’s goal of preserving estate properties and open space. The homeowners appealed the board’s determination for a second time.

The lower court found that the preservation of estate mansions was not a proper reason for denying the application. It also held that the board applied an incorrect standard in considering exceptions from RSIS standards for the shared driveway. Further, it ruled that the board lacked the authority to require the homeowner to improve the remainder of the driveway owned by the neighbors. Therefore, it vacated the board’s denial of the application and ordered the board to approve the subdivision. It did grant leave for the board to consider reasonable conditions for the subdivision, including those related to the repair and improvement of the shared driveway. On remand, the board granted the homeowners’ application. Now, the neighbors appealed.

The Appellate Division affirmed for substantially the same reasons used by the lower court. It agreed with the lower court that the board: (i) placed too heavy a burden on the homeowners to prove entitlement to RSIS exceptions; and (ii) relied on testimony of experts who did not take into account the less stringent application of RSIS to minor subdivisions (such as was the case here).

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