On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1163-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2009
Before Judges Wefing, Messano and LeWinn.
Plaintiff Ruth Ann Elwood is the owner of an oversized unimproved corner lot in an area of Wanaque Borough that is zoned for single-family residential use; plaintiff Dean Builders, Inc., (Dean) is a home builder/developer and the contract purchaser of plaintiff's property, which contract is subject to subdivision of the property into two lots.*fn1
Plaintiff's lot is in an R-10 zone, which requires a minimum lot size of 10,000 square feet for a one-family dwelling. The total area of plaintiff's lot is 16,167 square feet. Plaintiff sought to subdivide her property into two lots, one of 8,758 square feet and the other of 7,409 square feet; thus, neither of the resulting two lots would have the required minimum of 10,000 square feet.
When plaintiff submitted her subdivision application, Wanaque's municipal attorney determined that it required a density variance pursuant to N.J.S.A. 40:55D-70(d), rather than subdivision approval under N.J.S.A 40:55D-60. Therefore, plaintiff was directed to submit her application to the Zoning Board of Adjustment (Zoning Board) rather than to the Planning Board. Plaintiff complied, but reserved her right to object to the municipal attorney's decision.
Following a hearing, the Zoning Board voted four to three to grant the application. Density variance approval, however, requires the vote of five Zoning Board members. N.J.S.A. 40:55D-70(d). Therefore, plaintiff's application was denied.
Plaintiff filed an action in lieu of prerogative writs in the Law Division. Following oral argument, the trial judge determined that plaintiff's application came within the exception set forth in N.J.S.A. 40:55D-70(d)(5), which provides that a density variance is not required when "applied to the required lot area for a lot or lots for detached one or two dwelling unit buildings, which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision."
The judge noted that "density" is defined in N.J.S.A. 40:55D-4 as "the permitted number of dwelling units per gross area of land to be developed." The judge concluded:
They weren't putting a two[-]family house on a lot that only allowed for one family. They weren't putting up a four[-]unit apartment building. . . .
And I don't see this as a density issue. I see this as [a] minor subdivision to approve dividing one lot into two undersized lots, but if granted, the structure that would have been built on the approved subdivision would not have created a density problem.
My opinion is that this application should not have gone before the Board of Adjustment, it should have gone before the Planning Board. [It s]hould not have been one that was indicated as an application that required a use variance or a density variance, but rather an undersized lot variance.
I don't . . . disagree that a variance was required. I don't call that a density variance or a use variance. I call that a bulk variance, an undersized lot variance which the Planning Board, as part of the subdivision, would be permitted ...