Ver 11 5 14

RESOLUTION

TOWNSHIP OF MONTVILLE

BOARD OF ADJUSTMENT

Application No. ZSPP/FCD 3-14/ZSOIL 4-14
Stonybrook Boutiques, LLC

9 Main Road

Block 47, Lot 2

WHEREAS, Stonybrook Boutiques, LLC, as applicant and with the permission of the owner, did make application to the Montville Township Board of Adjustment in regard to the property designated as Block 47, Lot 2, on the official tax map of the Township of Montville, commonly known as 9 Main Road, for a “d(3)” variance from conditional use standards and a “d(4)” variance from floor area ratio standards pursuant to N.J.S.A. 40:55D-70(d), for “c” variances under N.J.S.A. 40:55D-70(c), for Preliminary and Final Major Site Plan and Soil Movement Permit approval, in connection with the proposed redevelopment and construction of a mixed use building containing a first floor with retail or office use having a total of 3,024 square feet of commercial space, a second floor consisting of two 2-bedroom residential apartment units, and a basement with a total of 3,113 square feet, the requested relief being more specifically described as follows:

(A.) A “D(3)” variance is required for violating the following conditional use standards:

Montville Township Land Use and Development Regulations (“MTLUDR”) § 230-170 - Conditional Use for an Apartment in the B-1 zone above a retail or office use where the development does not meet the Area and Bulk requirements of the B-1 Business District – where the following non-conforming conditional use standards are not met by this application for development:

(1) (a.) Minimum front yard setback to Route 202 – Where a front yard setback of 25 feet is required to the road, but where 5.7 feet is existing and 10’ is proposed; and,

(2) (b.) MTLUDR §230-128(B)(3) - Minimum front yard setback to Highland Avenue – where a front yard setback of 25 feet is required, but where 15’ is proposed; and

(B.) A “D(4)” variance is required by this proposal for a floor area ratio (“FAR”) of 29.4% based upon 5,327 square feet, whereas a maximum of 25% of 4,527 square feet is permitted under MTLUDR §230-120 and Schedule D; and

(C.) “C” variances are required from the following ordinance standards:

(1.) MTLUDR §230-80(E) – Minimum front yard parking setback from street - where a minimum setback of 25 feet is required, but where 2 feet is proposed from the street (Route 202);

(2.) MTLUDR §230-80(E) – Minimum side and rear yard parking setbacks- where a minimum setback of 10 feet is required, but where 3.8 feet is proposed from the building;

(3.) MTLUDR §230-80(E) – Minimum Parking Setback from Residential Zone – where a minimum setback of 20 feet is required, but where 10 feet is proposed;

(4.) MTLUDR §230-204(A) – Minimum/Maximum Number of Loading Spaces – where a minimum of 1 parking space is required, but where 0 are proposed;

(5.) MTLUDR § 230-216(B)(4) – Minimum Monument Sign Setback – where a sign setback of 15 feet from the curb and 10 feet from the right-of-way is required, but where 19’1 feet from the curb and 5 feet from the right-of-way is proposed for the monument sign;

(D.) Design waivers are requested from each of the following ordinance standards:

(1.) MTLUDR §230-82 – where the ordinance requires sidewalks along Route 202, applicant requests a waiver to not provide a sidewalk along Route 202;

(2.) MTLUDR §230-87(B) – Access to Dumpster without interference – where the ordinance requires that the area be accessible without interference, applicant requests a waiver not to provide access without potential interference;

(3.) MTLUDR §230-98(C.1) – Minimum Transition Buffer to Residential Zone – where the ordinance requires 15’, applicant requests a waiver to provide 10’; and

(4.) MTLUDR §230-98(C.5) – where the ordinance prohibits driveways within a transition buffer, applicants requests a waiver to allow for a driveway; and

WHEREAS, the applicant was scheduled for hearing on the application before the Board of Adjustment, which hearing took place on November 5, 2014, at which time it was established that all property owners within two hundred (200') feet of the property in question had been properly served notice; and

WHEREAS, the applicant submitted Preliminary and Final Major Site Plans, as prepared by Dykstra Walker Design Group of Lake Hopatcong, New Jersey, consisting of twelve (12) sheets variously dated and revised through September 11, 2014; Architectural Floor Plans and Elevations, prepared by James P. Cutillo Associates of Pompton Plains, New Jersey, consisting of five (5) sheets, dated September 20, 2013, and revised through December 2, 2013; and Exhibits A-1 (Colorized site plan revised 11/05/14); A-2 (aerial exhibit), and A-3 (two (2) page photo exhibit); and

WHEREAS, this application and plans have been submitted to all the appropriate municipal entities and reviewing agencies and the Board of Adjustment has received reports and recommendations and has considered the same during the pendency of this application; and

WHEREAS, this matter was considered in accordance with the Township Municipal Land Use and Development Regulations and a public hearing was held, during which hearing reports were presented and the public was given the opportunity to submit questions, comments and objections relative to the proposed development of the subject property, at which time an electronic recording was made of said hearing; and

WHEREAS, the Board carefully reviewed the testimony presented and made the following findings:

1. The burden is on the applicant to establish the right to the variance relief sought. Based on the submitted application and site plan, the applicant has applied for d(3) conditional use variance relief for the residential use, a d(4) variance for exceeding the maximum permitted floor area ratio, and “c” variances are required for front yard setbacks, location of parking, lack of loading space, and monument signage location, all as detailed above. The subject property is undersized to the zone, which requires a land area of 20,000 square feet. The subject property has an area of 18,107 square feet.

As proposed by applicant, once approved, the applicant seeks to demolish a pre-existing nonconforming single-family dwelling and replace it with a mixed-use development containing 3,024 square feet of ground-floor commercial space and two upper-floor apartment units. The proposal includes basement storage space limited to use by the existing upstairs tenants. The applicant also proposes various other aesthetic and safety improvements, including curbing, off-street parking and loading, lighting, landscaping, and signage.

2. The MLUL defines a conditional use as

a use permitted in a particular zoning district only upon a showing that such use in a specified location will comply with the conditions and standards for the location or operation of such use as contained in the zoning ordinance, and upon the issuance of an authorization therefor by the planning board. [N.J.S.A. 40:55D-3 (emphasis added).]

Conditional uses are "uses ordinarily requiring special standards relating to traffic patterns, street access, parking, and the like in order to assure their functional and physical compatibility with the district as a whole and their appropriate integration into the district." Exxon Co., U.S.A. v. Township of Livingston, 199 N.J. Super. 470, 477 (App. Div. 1985). A conditional use variance applicant must show that the site will accommodate the problems associated with the use, even though the proposal does not comply with the conditions the ordinance established to address those problems.

3. The New Jersey Supreme Court has established the standards for granting a variance for a "deviation from a specification or standard … pertaining solely to a conditional use" under N.J.S.A. 40:55D-70d(3), of the Municipal Land Use Law. The standards established are based on the fact that a conditional use is not prohibited, but also not permitted, throughout the zone. Instead, the use in question is permitted where the use meets the conditions set forth in the zoning ordinance. As the Court noted, “[b]ecause a conditional use is not a prohibited use, …it need not meet the stringent special reasons standards for a commercial-use variance … summarized in Medici v. BPR Co., 107 N.J. 1, 9-18 (1987).” Coventry Square, Inc. vs. Westwood Zoning Bd. of Adj., 138 N.J. 285, 287 (1994).
There is a difference in the law between a use variance and a variance for a deviation from a condition the ordinance places on a use in a particular zone. Although they are both "special reasons" variances under N.J.S.A. 40:55D-70d, the focus is different as to each. In the case of a use variance, the applicant requests the right to engage in a prohibited use that violates the ordinance. In contrast, in the case of a conditional use, the applicant requests to engage in the use despite the applicant's failure to meet one or more of the development standards required for such conditional use. Therefore, the use itself is not prohibited, but the non-compliance with the standards required for that use violates the ordinance.

4. FAR restrictions are aimed at limiting the intensity of the use of the property, much the same as the ordinance restrictions on density, bulk or building size. Variances from FAR restrictions or limits on density are termed “d” variances, because they can pose a greater threat to the zone plan and public good than other dimensional controls. The New Jersey courts have established that, with regard to establishing ″special reasons″ for a FAR variance, Coventry Square v. Westwood Bd. of Adj., 138 N.J. 285, 650 (1994), and not Medici controls, and that it would be inappropriate to apply the variance standard for a prohibited use where you have presented a permitted use that does not comply with the condition(s) imposed by the ordinance. Randolph Town Center Asso., L.P. v. Township of Randolph, 324 N.J. Super. 412 (App.Div. 1999). “Because a (d)4 FAR variance also deals with uses that are permitted in the zone and thus is different from variances for excluded uses, … an applicant for a FAR (d)(4) variance need not show that the site is particularly suited for more intensive development…. Like a conditional use variance applicant, FAR variance applicants must show that the site will accommodate the problems associated with a proposed use with larger floor area than permitted by the ordinance.” Id. at 416-17.

5. As to the first prong of the negative criteria, that the variance can be granted without substantial detriment to the public good, the Board focuses on the effect on surrounding properties if the variances are granted as to the deviations requested from the conditions imposed in the ordinance. As to the second prong of the negative criteria, that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance, the Board requires that the grant of the conditional use and FAR variances is in harmony with the ordinance requirements that these conditions shall be imposed on all such uses in that zoning district.

6. The site is located at the southwest corner of Main Road (Route 202) and Highland Avenue, approximately 200 feet east of the Boonton municipal border. The site dimensions include 194 feet of frontage on Main Road. The property is developed with a single-family dwelling, which is a nonconforming use in the B-1 Zone. The dwelling also violates minimum front, side and rear yard setback requirements for the zone. The site does not appear to be constrained by environmentally sensitive features. Surrounding land uses include a medical office building to the east, commercial/mixed-use development to the north, commercial use to the west, and residential uses to the south.

7. The twenty-five (25%) percent maximum FAR requirement is under review by the Township. Although the applicant argued that this FAR standard is in conflict with the standard for the maximum building coverage for the zone at thirty (30%) percent, the maximum coverage and FAR requirements for the B-1 Zone are to be applied as currently required by ordinance.

8. Mia Petrou, PP, testified as applicant’s professional planner. She reviewed the plans before the board, the professional reports, the master plan and the zoning ordinance. She described the property as an undersized corner lot that is pre-existing, non-conforming, and irregularly shaped. The site is currently improved with a single family dwelling, which is an existing non-conforming use for this zone. She represented that additional property cannot be acquired. There is an existing pet supply store across the road on Highland Avenue. There is commercial development across Route 202.

Ms. Petrou reviewed the existing non-conforming conditions on the existing site that will be eliminated by this application. All existing structures on this site are proposed to be demolished. Residential uses are permitted above commercial uses as a conditional use but they must meet the other conditions of the zone. The proposal meets with all of the conditions with the exception of parking in the front yard and lot size. As a result of not meeting these conditions, a D3 variance is required.

9. As to the “c” variances requested, the building setback of 10 feet is consistent with the neighborhood. The sign will be located at the driveway entrance, which is the appropriate place. The retail uses proposed are conforming uses. Rather than having a typical full sidewalk, applicant proposes to install a walkable pedestrian environment that will be landscaped.