Resolution #050283
Acknowledgement of 2004 Annual Report
Submitted by the Zoning Board of Adjustment
WHEREAS, N.J.S.A. 40:55D-70.1 requires the Board of Adjustment annually to prepare and adopt by resolution a report on its findings on zoning ordinance provisions which were the subject of variance requests and to report its recommendations for zoning ordinance amendment or revision; and
WHEREAS, N.J.S.A. 40:55D-70.1 further requires the Board of Adjustment to send copies of its report to the governing body and planning board.
NOW THEREFORE BE IT RESOLVED, that the Township Committee of the Township of Bernards hereby acknowledges receipt of the Zoning Board of Adjustment’s 2004 Annual Report which is on file with the Municipal Clerk.
Agenda and Date Voted:7/12/05
REPORT AND RECOMMENDATIONS
OF THE BOARD OF ADJUSTMENT
FOR THE TOWNSHIP OF BERNARDS
FOR THE PERIOD
JANUARY 1, 2004–DECEMBER 31, 2004
TABLE OF CONTENTS
Report and Recommendations
of the Board of Adjustment for the
Township of Bernards for the period
January 1, 2004 through December 31, 2004 . . . . .Page 1
I.Subsection “d” Variance Applications ...... Page 2
II.Subsection “c” Variance Applications ...... Page 4
III.Applications Involving the B-1 Village
Business Zone ...... Page 8
IV.Site Plan Approvals Under NJSA 40:55D-76 . . .Page 8
V.Prior Year Matters on Appeal ...... Page 8
VI.Recommendations and Suggestions ...... Page 9
List of Docket Numbers
Assigned for the period ...... Page 11
List of Memorializing Resolutions
Read for the period ...... Page 13
Descriptions of Applications
Heard for the period...... Page 15
Resolutions Adopted in
connection with Applications
Heard for the period ...... Page 31
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REPORT AND RECOMMENDATIONS
OF THE BOARD OF ADJUSTMENT FOR THE
TOWNSHIP OF BERNARDS
FOR THE PERIOD
January 1, 2004 through December 31, 2004
Pursuant to the requirements of N.J.S.A. 40:55D-70.1, the Board of Adjustment for the Township of Bernards reports as follows:
The Board received a total of 43 applications from January 1, 2004 through December 31, 2004, and considered 41 applications during that period. Thirty-nine of the applications requested “bulk” variances under N.J.S.A. 40:55D-70(c). Three of the applications involved variances under N.J.S.A. 40:55D-70(d), two of which were applications for use variances, and one involved deviations from conditional use standards or other (d) variances. None of the variance applications sought subdivisions under the Board’s ancillary jurisdiction (N.J.S.A. 40:55D-47), and two variance applications involved site plan approval (N.J.S.A. 40:55D-76(b)). There were no applications presented for a “certificate of nonconformity” by the Board under N.J.S.A. 40:55D-68, and there were no applications presented for an interpretation by the Board under N.J.S.A. 40:55D-70(b). There was one request for an appeal from the zoning officer’s decision submitted pursuant to N.J.S.A. 40:55D-70(a). There was one request to construct a single family residence on property that does not have frontage on or abut a public street pursuant to N.J.S.A. 40:55D-76(a)(2).
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Copies of all of the Board’s resolutions relating to applications heard during the report period and, in some instances, staff comments are attached as exhibits to this report, as is a summary of all such applications.
I. Subsection “d” Variance Applications
The number of variance applications under N.J.S.A. 40:55D-70(d) was limited. However, as in previous years, such variances accounted for a significant amount of the Board’s hearing time, requiring multiple hearing dates. All of the “d” variance applications were granted.
One of the three “d” variance applications that were granted related to a proposal by Omnipoint Communications, Inc. (“Omnipoint”) to amend the Board’s June 4, 2003 approval in order to redesign and relocate the proposed wireless telecommunications facility. (To recap the history of this applicant, it was in April of 2002 that the Board denied Omnipoint certain variances relating to its locating a wireless telecommunications facility, including a 100-foot monopole on the property of the Basking Ridge Railroad Station on the east side of the tracks, approximately 45 feet from the station building, and dismissed its accompanying application for site plan approval. By order dated March 11, 2003, the Superior Court of New Jersey, Law Division, reversed the decision of the Board, granted the variances and remanded the matter to the Board for preliminary and final site plan determination and the imposition of conditions. The Board appealed the decision of the trial court and on May 7, 2003, while awaiting the Appellate Division determination, held the required remand site plan proceedings and granted Omnipoint site plan approval subject to certain conditions, including the ultimate disposition of all appeals of the trial court’s decision on the variances. In an opinion dated January 14, 2004, the Appellate Division of the Superior Court affirmed the March 11, 2003 order of the Law Division and, after the Board perfected its right to petition the New Jersey Supreme Court for certification of the matter, Omnipoint proposed a settlement of the matter based upon relocating the proposed facility, including its monopole, to a site approximately 380 feet to the north of the prior location and on the west side of the railroad tracks.)
Another “d” variance that was granted by the Board related to a proposal by Weichert Realtors, Inc. for permission to renovate and add to the existing building in the B-1 Village Business Zone, addressing numerous structural, space, safety and aesthetic concerns. Since it involved creating an additional 1,823 square feet to the existing building, the applicant sought permission to increase the preexisting nonconforming floor area ratio to 125.9%, where a maximum of 25% is permitted under the zoning ordinance. The Board found that special reasons existed to grant the increase in floor area ratio resulting from the proposed improvements, particularly in view of the reduced lot size by reason of the condemnation of a significant segment of the lot by the Township for parking purposes, and the fact that the proposed floor area ratio was consistent with other uses in the B-1 Village Business Zone. The Board also found that the proposal would not significantly intensify the use of the facility or significantly exacerbate the existing nonconformities, and would promote compliance with the American Disabilities Act and applicable building codes.
The third “d” variance that the Board granted involved a conditional use variance for permission to allow the continued use of a third, unapproved dwelling unit in the basement of a two-story residence in the R-6 Residential Zone. The Board found that by reason of the long-term occupancy of the apartment in question, which satisfied the family relationship requirement of the zoning ordinance, and by reason of the occupants’ ages and respective states of health, the Board was satisfied that special reasons existed to grant the continued use of the apartment, subject to certain limiting conditions.
II. Subsection “c” Variance Applications
The Board granted 36 applications under N.J.S.A. 40:55D-70(c) with special conditions and denied three applications. Because of changes in the zoning ordinance as recommended by the Board some time ago, only three of these “bulk variance” applications involved open decks. In each of the deck cases the applicant had a preexisting nonconforming lot width, and two applications had preexisting nonconforming impervious lot coverage. All three applications were granted.
In 24 cases the applicants sought variances from front yard requirements or side yard requirements. The Board granted all of these applications with the standard condition that the applicants comply with all applicable federal, state and local laws and regulations, finding generally in these cases that the requested variances were relatively minor and that strict application of the zoning ordinance requirements would have resulted either in extraordinary practical difficulties to or would have imposed undue hardship upon the applicants.
An additional standard condition in the granting of all variance applications states that, pursuant to § 21-5.10 of the zoning ordinance, the variance granted will expire unless the construction or alteration permitted by the variance has actually commenced on each and every structure, or unless the use permitted by the variance has actually commenced, within one year of the date of the resolution. There were two applicants that were granted variances during the previous year that resubmitted applications, each requesting a one year extension to complete their respective projects. Both of these applications were granted, but one was approved with a condition that no further extensions be granted for completion of the work. There was one applicant that was granted a variance during 2004 to renovate an existing dwelling, but resubmitted that application with a request to demolish that dwelling and build a new residence, which would be in accordance with the previously approved plans and the end result would be the same.
One of the three “c” variance applications that the Board denied involved a proposal by Robert and Suzanne Glassman to construct an in ground swimming pool and hot tub with associated paver patio and wood decking in the rear yard of their property located in the RC-4 Residential Cluster Zone, that would have created a nonconforming lot coverage of 23.1% were a maximum of 20% is permitted by the zoning ordinance. (Since 1993, this property was the subject of three prior applications which were all requests to exceed the maximum permitted floor area, and two of which were granted by the Board.) In this particular case, the Board found that the existing lot coverage already approached the maximum contemplated by the zoning ordinance and, given the special aspects of residential cluster development in which limited lot dimensions are compensated for by common or open space area as an appurtenance, the Board found that the relief requested would distort that program and could not grant the variance without substantial detriment to the public good, the zone plan and the zoning ordinance.
Another “c” variance that was denied by the Board related to a proposal by Steven Sherwyn and Audrey Cohen for permission to construct an in ground swimming pool with surrounding concrete walkways on their property located in the RC-4 Residential Cluster Zone, which would have created nonconforming impervious lot coverage of 25.7% where a maximum of 20% is permitted by the zoning ordinance. The Bernards Township Environmental Commission had recommended to the Board, in a memorandum dated February 17, 2004, that additional impervious lot coverage should not be allowed on this site. The Board found that there was no apparent justification for the significant increase in impervious coverage on this property and that the applicants failed to establish the existence of hardship caused by exceptional characteristics or conditions on the property in support of variance relief. Accordingly, the Board found that there was no affirmative basis upon which to grant this application.
The third “c” variance that the Board denied involved an applicant (Martin Gambony) who sought permission to construct a three-bay freestanding garage in the front yard of his property, an oversized lot located in the R-6 Residential Zone. Since the lot in question is oversized and the applicant could have easily complied with the provisions of the zoning ordinance, the Board found that the applicant failed to establish the existence of any undue hardship or exceptional practical difficulties in his request for variance relief, and also failed to establish that the purposes of zoning would be advanced and produce a better result from a community perspective in support of such a request.
III. Applications Involving the B-1 Village Business Zone
One application granted was located in the B-1 Village Business Zone. The case (Weichert Realtors, Inc.) has been addressed under Section I.
IV. Site Plan Approvals Under N.J.S.A. 40:55D-76
There were two applications seeking site plan approval pursuant to the Board’s ancillary jurisdiction under N.J.S.A. 40:55D-76 in connection with use variances. Both applications (Omnipoint Communications, Inc. and Weichert Realtors, Inc.) were approved with conditions and have been addressed under Section I.
V. Prior Year Matters on Appeal
Last year’s report referred to the “c” variance denial of Thomas and Kathleen West’s application to demolish their property’s existing dwelling containing approximately 1,034 square feet of living space and to construct a new dwelling that would have contained approximately 4,662 square feet of living space. In December of 2003, the applicants appealed the denial to the Superior Court of New Jersey, Law Division. In order to resolve the differences between the applicants and the Board, the applicants filed a new, amended application to demolish their existing dwelling and to construct a new residence containing approximately 3,618 square feet. The Board granted the variance and the appeal was dismissed.
Another “c” variance denial in last year’s report involved an application related to a proposal by Paul and Faith Duffy to construct a 203-square-foot, one-car addition to their existing detached two-car garage which would have resulted in a 1.71 foot side yard setback. On appeal to the Superior Court of New Jersey, Law Division, the matter was remanded to the Board. The Board then appealed to the Superior Court of New Jersey, Appellate Division. During the pendency of the appeal the applicants submitted a modified application for a building permit which fully complied with the zoning ordinance and the Appellate Division appeal was dismissed.
VI. Recommendations and Suggestions
The Board submits the following recommendations and suggestions:
A.In connection with requests for 12 month extensions of variances which may be granted by the Board pursuant to § 21-5.10 of the Land Development Ordinance, a question has arisen as to whether the request must be filed prior to the expiration of the initial grant. It is suggested that § 21-5.10 be clarified in this respect. It is noted in this regard that in the related area of preliminary site plan approval, under N.J.S.A. 40:55D-49(e), an application for extension of the validity period of preliminary approval may be filed before or after the expiration of the initial grant. All such extensions begin on what would otherwise be the expiration date. A similar rule would seem appropriate here.
B.The Board has expressed serious concern regarding the size of dwellings to be constructed or enlarged on residential lots. Only dwellings in the cluster zone have limitations imposed on size. In circumstances where applicants are before the Board for bulk variances in connection with new construction or additions to dwellings which will result in houses which seem disproportionately large for the neighborhood, the Board has pressed the applicant to reduce the size. The Board understands that the Planning Board is presently considering an amendment to the zoning ordinance which would regulate building size. The Board of Adjustment agrees that such an amendment would be desirable.
Dated:June 8, 2005
Respectfully submitted,
BOARD OF ADJUSTMENT FOR
THE TOWNSHIP OF BERNARDS
By: /s/ Donald A. Juechter, Jr.
Donald Juechter, Chairman
cc:Hon. Carolyn Kelly, Mayor
Peter A. Messina, Township Engineer and Planner
Scott Spitzer, Planning Board Chairman
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Docket Numbers Assigned for the Period
January 1, 2004 through December 31, 2004
Docket
Number:Applicant(s):
1.04-01Reliant Pharmaceuticals, L.L.C.*
2.04-02Michael Gamba
3.04-02(A)Michael Gamba
4.04-03Steven M. Sherwyn and Audrey G. Cohen
5.04-04Daniel and Karen Ryan
6.04-05Kenneth R. Schaefer, Esq.
7.04-06Shawn and Jennifer Lynch
8.04-06(A)Shawn and Jennifer Lynch
9.04-07Cellular Telephone, d/b/a AT&T Wireless*
10.04-08Amanda S. Ryan
11.04-09Julie and John Zalkalns
12.04-10John and Donna Donaldson*
13.04-11Jeffrey A. Sell
14.04-12JoAnne Giuliano
15.04-13Mark and Keri Samuels
16.04-14John P. Kunnert and Kimberly Erusha
17.04-15Bradford and Susan Sahler
18.04-16Andrew and Jennifer Nowack
19.04-17Shen-chyun Wu and Grace D. Hwang*
20.04-18James A. Robinson, Jr.
21.04-19Robert and Karen Vaias
22.04-20Peter Michels
23.04-21Sean and Karen McNamara
24.04-22George and Betty Michinard
25.04-23Joseph C. and Anne B. Connor
26.04-24James and Annette Anello
27.04-25John F. and Jennifer C. Korn
28.04-26Paul Chiappetta
29.04-27Kim Giammarino*
30.04-28Richard and Patricia Rogers
31.04-29Martin Gambony
32.04-30Thomas and Anne Gatens
33.04-31William and Mary Herila*
34.04-32William Properties, L.L.C.
35.04-33Sean and Mary Dillon
36.04-34Mark J. Harper
37.04-35Christopher and Patricia Morath
38.04-36The PingrySchool
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Docket
Number:Applicant(s):
39.04-37Lawrence Terricone
40.04-38LIN Cellular Communications (NY), L.L.C.
41.04-39Jody Stowe
42.04-40Kevin and Carol Schumann
43.04-41Jay M. Petrillo
*Withdrawn applications.
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Memorializing Resolutions Read
January 7, 2004 Meeting:
03-08WEICHERT REALTORS, INC.
03-37KEARNS, Virginia Lee
03-38KIRBY, Edward and Melinda
03-42FOLEY, Jaclyn
February 4, 2004 Meeting:
03-33MILLINGTON QUARRY, INC.
03-40GLASSMAN, Robert and Suzanne
March 3, 2004 Meeting:
03-11PATULLO BROTHERS BUILDERS, INC.
03-22BRINKWORTH, Gregory and Mary
03-36GRANT, Kathleen L.
03-43PETILLO, INC.
April 7, 2004 Meeting:
03-01IANACE, Linda and Ernest
May 5, 2004 Meeting:
04-03SHERWYN, Steven M. and COHEN, Audrey G.
04-04RYAN, Daniel and Karen
June 9, 2004 Meeting:
03-41CAHILL, Mary Ellen
04-05SCHAEFER, Kenneth R.
04-06LYNCH, Shawn and Jennifer
04-08RYAN, Amanda
04-09ZALKALNS, Julie and John
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July 7, 2004 Meeting:
00-20(B)OMNIPOINT COMMUNICATIONS, INC.
03-24WEST, Thomas and Kathleen
04-02GAMBA, Michael
04-11SELL, Jeffrey A.
August 4, 2004 Meeting:
03-34ROCKER, Lori and Jonathan
03-35PETRONELLA, Alexander J. and Suzette
04-12GIULIANO, JoAnne
04-13SAMUELS, Mark and Keri
04-15SAHLER, Bradford and Susan
September 8, 2004 Meeting:
04-14KUNNERT, John P. and ERUSHA, Kimberly A.
04-16NOWACK, Andrew and Jennifer
04-20MICHELS, Peter
October 6, 2004 Meeting:
04-02(A)GAMBA, Michael
04-21McNAMARA, Sean and Karen
04-23CONNOR, Joseph C. and Anne B.
04-24ANELLO, James and Annette
November 3, 2004 Meeting:
04-06(A)LYNCH, Shawn and Jennifer
04-18ROBINSON, James A., Jr.
04-19VAIAS, Robert and Karen
04-25KORN, John F. and Jennifer C.
December 8, 2004 Meeting:
04-28ROGERS, Richard and Patricia
04-29GAMBONY, Martin
04-30GATENS, Thomas and Anne
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Descriptions of Applications Heard
January 1, 2004 through December 31, 2004
00-20(B)OMNIPOINT COMMUNICATIONS, INC.
R-7 Residential
Depot Place and Ridge Street (Basking Ridge Railroad Station)
Block 200, Lot 1
Re: Amend the Board’s June 4, 2003 approval in order to