Submitted by the Zoning Board of Adjustment

Resolution #060137

Acknowledgement of 2005 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 2005 Annual Report which is on file with the Municipal Clerk.

Agenda and Date Voted:2/28/06

REPORT AND RECOMMENDATIONS

OF THE BOARD OF ADJUSTMENT

FOR THE TOWNSHIP OF BERNARDS

FOR THE PERIOD

JANUARY 1, 2005 – DECEMBER 31, 2005

TABLE OF CONTENTS

Report and Recommendations

of the Board of Adjustment for the

Township of Bernards for the period

January 1, 2005 through December 31, 2005 . . . . .Page 1

I.Subsection (d) Variance Applications ...... Page 2

II.Subsection (c) Variance Applications ...... Page 9

III.Applications Involving the B-1 Village

Business Zone ...... Page 11

IV.Applications Involving the B-3 Historic

Business Zone ...... Page 11

V.Site Plan Approvals Under NJSA 40:55D-76 . . .Page 12

VI.Prior Year Matters on Appeal ...... Page 13

VII.Recommendations and Suggestions ...... Page 13

List of Docket Numbers

Assigned for the Period ...... Page 17

List of Memorializing Resolutions

of Applications Heard for the Period...... Page 19

Descriptions of Applications

Heard for the Period...... Page 21

Memorializing Resolutions

in connection with Applications

Heard for the Period ...... Page 38

I

REPORT AND RECOMMENDATIONS

OF THE BOARD OF ADJUSTMENT FOR THE

TOWNSHIP OF BERNARDS

FOR THE PERIOD

January 1, 2005 through December 31, 2005

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 53 applications from January 1, 2005 through December 31, 2005, and considered 43 applications during that period. Thirty-nine of the applications requested “bulk” variances under N.J.S.A. 40:55D-70(c). Nine of the applications involved variances under N.J.S.A. 40:55D-70(d), six of which were applications for use variances, and three involved deviations from conditional use standards or other (d) variances. Five of these applications for (d) variances also sought (c) variances.

None of the variance applications sought subdivisions under the Board’s ancillary jurisdiction (N.J.S.A. 40:55D-47), and four 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, there were no applications presented for an interpretation by the Board under N.J.S.A. 40:55D-70(b) and there were no requests for an appeal from the zoning officer’s decision submitted pursuant to N.J.S.A. 40:55D-70(a).

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 greater than in previous years and as such 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 nine (d) variance applications that were granted related to a proposal by The Pingry Corporation (also known as The Pingry School) for site plan approval to construct a two-story middle school addition to the existing school building and related parking areas, and a variance from the height requirements of the R-3 Residential Zone district and to construct a parking lot in the front yard. The Board was satisfied that the proposed use, as conditioned by the Board, was particularly suited for the property and any resulting deviations from the requirement of the variance imposed by the zoning ordinance for the R-3 zone would be minimal. The Board was also satisfied that since the new structure would be the same height as the existing building and would be aesthetically pleasing, that it would have virtually no impact on the surrounding neighborhood. The Board found that the proposed development of this property would permit the school to better fulfill its educational mission, that the few adverse impacts associated with the proposed construction would be eliminated or reduced by various design features, and would be further reduced by compliance with certain conditions imposed by the Board. The Board further found that the benefits associated with the grant of the variances would substantially outweigh any remaining detriments.

A second (d) variance application that was granted related to a proposal by New Cingular Wireless PCS, LLC for site plan approval and variance relief to place a third set of telecommunication antennas on an existing 110-foot high monopole and to place related equipment cabinets at the base of the monopole within the existing 1,400 square-foot fenced-in area, requiring both use and side yard setback variances. Although the property was located in the E-5 Office Zone where communications towers are permitted as a conditional use, the proposal did not meet the conditional use setback requirement for its equipment cabinets and therefore required a variance pursuant to N.J.S.A. 40:55D-70(d)(3). The Board found that given the preexisting monopole and the Township’s policy favoring antenna co-location on existing facilities in a permitted zone, the proposal, as conditioned, would be particularly suited for the property and any resulting deviations from the requirement of this conditional use would be minimal.

Another (d) variance that was granted by the Board related to a proposal by Kevin and Carole Schumann for a conditional use variance to permit the keeping of their daughter’s horse on their property, which due to the property’s narrowness, could not comply with the condition of this conditional use which required 100-foot barn/fence setbacks along the side property lines and street right-of-way setbacks. The Schumanns also sought a variance for the construction of a barn in the front yard, which is prohibited under the zoning ordinance. The Board noted that the applicants’ lot was more than twice the size required under the zoning ordinance for the keeping of horses and, since the application was for only one horse, that the proposed use was consistent with the neighboring area. The Board noted that the applicants’ daughter would be provided with the convenience and pleasure of enjoying her horse on the property and found that special reasons existed to permit the use. The Board also took view of the unusual shape and topography of the applicants’ property and the limited area within which a barn could feasibly be constructed, and found that the relief requested, as conditioned, could be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and zoning ordinance.

A fourth (d) variance that the Board granted involved a proposal by Jay M. Petrillo for a use variance for permission to construct a proposed addition to his residence that would be within a stream buffer conservation area contrary to the provisions of the zoning ordinance which prohibit all permanent structures within the stream buffer area. The applicant’s property, located in the R-1 Residential Zone at 38 Hardscrabble Road, lies totally within the Passaic River floodplain and, although the property is in a residential zone, the area was developed prior to the first stream buffer ordinance. The Board determined that special reasons existed to grant the use variance, finding that the proposed construction, involving an addition to a residence preexisting in the buffer area, would have little additional impact on the stream buffer area and would not negatively impact neighboring property owners.

Another (d) variance that was granted by the Board, and similar to the Petrillo matter, related to the application of Russell and Widette Fox for a use variance relief to construct an addition to their dwelling that lies mostly within the stream buffer area associated with an unnamed stream situated on a lot adjacent to their property, which is located in the R-6 Residential Zone at 56 Woodstone Road. As was with Mr. Petrillo’s property, the Fox’s property was in a residential zone and was developed prior to the first stream buffer ordinance. For reasons similar to those of Mr. Petrillo, the Board granted them use variance relief.

The sixth (d) variance that the Board granted involved a proposal by Musso Associates, LLC for permission to construct a two-story addition to an existing office building located in the B-4 Liberty Corner Business Zone which would create a nonconforming floor area ratio. The existing professional use is permitted in the B-4 zone, but since the proposed floor area ratio would exceed the maximum permitted under the zoning ordinance, a (d) variance was required. The existing building was approved by the Bernards Township Planning Board in 1999 and constructed in 2000. In view of this prior approval and the fact that the proposed floor area ratio was not inconsistent with other existing uses in the B-4 Liberty Corner Business Zone, the Board of Adjustment found that special reasons existed to grant the variance. The Board also found that the proposed addition would have little impact in Church Street and should not affect nearby businesses.

Another (d) variance that was granted by the Board related to a proposal by the United States Golf Association to further expand its nonconforming use for permission to construct an addition to its existing museum known as Golf House. The applicant has continually operated under a variance granted by this Board in 1971 to permit the office and museum use on the property which consists of approximately 67 acres in the R-1 Residential Zone on Liberty Corner Road, and has since been granted a number of variances to expand the nonconforming use. The Board found that since the relocation of its national headquarters in Bernards Township in 1972, the applicant had maintained a low-level of intensity use of the property and was of the view that the proposed addition would not change the nature nor materially increase the intensity of the use. The Board further found that special reasons exist to permit the proposed enlargement of the nonconforming use since the property is uniquely suited for the existing and intended use, particularly in its promotion of open space. It was also the view of the Board that because of the relatively low intensity of the use and the large size of the tract, that the proposal would have no negative impact on the residential area and that the relief requested could be granted without substantial detriment to the public good and would not substantially impair the intent and purpose of the zone plan and zoning ordinance.

The eighth (d) variance that the Board granted involved a proposal by the Visiting Nurse Association of Somerset Hills to construct a two-story building for use by the Visiting Nurse Association (for offices and an adult day-care center) and a one-story building for use by the Somerset County Social Services programs (including offices for its adult services and a nutritional center for ambulatory adults). The applicant sought, among other things, a use variance specifically from the requirements of § 21-10.5.a.1 of the zoning ordinance that would permit the proposed development in the Township’s E-3 zone, which does not permit the adult day care center or County facilities. The Board found that the VNA project satisfied the positive criteria of N.J.S.A. 40:55D-70(d) since the proposed use of the property consisted of characteristics found to inherently serve the public good. The Board also found that the proposed uses by Somerset County were such that the County, as an agency of this State, was exempt from compliance with local zoning. The Board further found that the proposed adult day-care and senior center uses were consistent with the requirements found for child day-care, which is a permitted use in the E-3 zone, and that the benefits far outweigh the detriments, particularly in view of the public benefit to be gained from the proposed elderly care services.

The ninth (d) variance that was granted by the Board related to a proposal by Greg and Ingrid Cordasco for permission to construct a two-story addition to the rear of their existing bicycle shop and apartment building located in the B-3 Historic Business Zone, where it is a permitted use. However, since the applicants’ proposed construction would increase the building’s preexisting nonconforming floor area ratio in excess of the maximum permitted by the zoning ordinance, a (d) variance application was required. Similar to the Musso Associates’ application previously addressed, Greg and Ingrid Cordasco received approval by the Bernards Township Planning Board in 1996, to convert the prior dwelling into a bicycle shop and apartment. The Board found that in view of the prior approval to improve the property, and the fact that the proposed floor area ratio was not inconsistent with those of others in the B-3 Historic Business Zone, that special reasons existed to grant the increase in the floor area ratio that would result from the proposed addition to the existing building. The Board also found that the proposed addition would have little impact on South Maple Avenue and should not negatively affect other nearby businesses.

II. Subsection (c) Variance Applications

The Board granted 38 applications under N.J.S.A. 40:55D-70(c) with special conditions and denied one application. Because of changes in the zoning ordinance as recommended by the Board some time ago, none of these “bulk variance” applications involved open decks.

In 25 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 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. There were four applicants that were granted a variance during 2005 with the request to demolish an existing dwelling and replace it with a new residence, all of which would be in compliance with zoning ordinance requirements other than lot width.

The one (c) variance application that the Board denied involved a proposal by Boulder Construction, LLC to permit the construction of a single family dwelling on an undersized vacant, wooded lot located in the R-6 Residential Zone at 32 Grove Road. The property was a corner lot bound by two adjoining lots, neither of which was large enough to enable the applicant to purchase land in order to create a conforming lot area for the site. Three separate construction plans were presented to the Board over the course of the applicant’s multiple hearings. A fourth set of revised plans was submitted together with the applicant’s motion for reconsideration. None of the revisions made to the plans over the course of the hearings substantively addressed the concerns of the public and of some members of the Board over what they regarded as the disproportionately large size of the proposed house for the neighborhood. The Board determined that when an applicant comes before the Board to build on an undersized lot, the Board has the right to reasonably limit the size of the structure to be built on that undersized lot, and found that, particularly in view of the stated purpose of the Bernards Township Master Plan, the relief requested could not be granted without substantial detriment to the public good and without impairing the intent and purpose of the zone plan and zoning ordinance. After withdrawing its request for reconsideration and for submission of a new application, on December 12, 2005, the applicant filed a Complaint in the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L1717-05 against the Zoning Board of Adjustment for the Township of Bernards, appealing the Board’s refusal to grant a variance for the applicant to build on the undersized lot. On January 12, 2006, the Board’s Answer and Affirmative Defenses were filed with the Court and served upon the applicant. The matter is pending.