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Baum v. Planning Board of the Borough of Bernardsville

SOM-L-1617-03 (N.J. Super. Law Div. 2004) (Unpublished)

ZONING; RSIS —The Residential Site Improvement Standards allow for de minimis exceptions to be granted by a planning board and even if a de minimis exception is not available, a waiver may be obtainable from the Department of Community Affairs.

A property owner sought a one-lot subdivision for a 5.065 acre lot in a five-acre zone, seeking a variance from the lot circle and other dimensional requirements. It proposed to make use of an undeveloped area of property on the oversized lot, all to erect a one-family dwelling. The owner contended that the variance should have been granted since it was simply proposing to make use of a presently undeveloped area of property on an oversized lot. The owner also argued that the variance was appropriate under N.J.S.A. 40:55D-70c(1) and (2) because of the peculiar shape of the lot, in that it could only accommodate a 320’ circle, and because the zoning benefits from the use of the land outweighed the zoning detriments. The owner also pointed to efforts to acquire additional lands.

Opposing neighbors asserted that the dimensional variances involved were serious in nature, that the owner failed to demonstrate why the oversized lot should not be forced to remain undeveloped. They also claimed that the lengthy driveway extending into the property could not provide safe access to the otherwise landlocked plot. The local planning board agreed with the neighbors and denied the application.

In the suit that followed, the Law Division held that the purpose behind the requirement that a 5-acre zone must be shaped so that a 350’ diameter circle could be circumscribed within it was to prevent the approval of irregularly sized lots. The Court pointed out that the lot in question was close to a rectangular shape, even though only a 320’ circle could fit within it. The Court also stated that there have been numerous examples of lots with marginally insufficient conformities not involving lot area that have been found to warrant grant of variances. Another purpose behind the requirement was to ensure separation between homes and adjacent lots, which the Court noted was not an issue in this case.

The specific complaint regarding the driveway was that some portions of the road did not accommodate two-way traffic. However, the Court noted that five other houses had used the driveway without incident for over twenty years, and the owner stated that he would be willing to add some safety features to the road. Thus, the Court concluded that the proposed single house would not add significantly to any danger posed by the inability of cars at some points in the driveway to pass each other.

The neighbors also argued that there was a new set of standards applicable to roadways. These standards, the Residential Site Improvement Standards (RSIS), superceded any local requirements. Based on this, they argued it was irrelevant that five other houses could be constructed on the driveway in question, since the driveway now needed to conform to the new state requirements. The Court conceded that the owner might not have been able to comply with the new standards.

The RSIS allow for de minimis exceptions to be granted by a planning board. Further, under N.J.A.C. 5:21-3.2(a), even if a de minimis exception is not available, a waiver might be obtainable from the Department of Community Affairs (DCA).

The Court found nothing in the record indicating what sections, if any, of the RSIS would apply in the current situation, nor any determination as to whether a waiver from the DCA was obtainable. Therefore, the Court remanded the matter to the planning board to determine which sections of the RSIS would apply and whether there should be a conditional approval pending DCA review.


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