Challenging Case Calls Zoning Enforcement into Question

"Perhaps we should flag this one for our annual report," Zoning Board of Adjustments Chairman Kevin Orr said at Wednesday's board meeting after hearing two and a half hours of testimony in the first case reviewed by the board.

The case, involving the accidental violation of a conservation easement, challenged the limits of the Board's ability to properly require residents to adhere to zoning laws.

The case

Matthew Eager, owner of a house and five acres of property on 230 Lake Rd, noticed that his backyard was literally eroding away. Eager's house is situated next to a steep downward slope that is heavily wooded and stretches down to a stream below.

The area is home to a natural wetlands habitat, and a wetlands buffer zone combined with the stream buffer zone result in a fairly rigid conservation easement placed on Eager's property. Eager was aware of the restrictions when he bought and moved into the home.

What he claims he didn't know, or even think about, was that his decision to build a retaining wall to keep from losing his backyard a few inches at a time was going to land him in a public hearing for violating the easement on his property.

The penalty

Eager hired contractors who specialize in architecture and landscaping to design a rock wall that could be built on the slope behind his house. The contractors began to work to contain the back yard with the wall, stretching out around the edge of the property and an in-ground pool off to the side of the house. The grading behind the pool was altered to replace portions of the slope with a flat lawn area where Eager's children could play.

Before construction was completed, Chuck Drews, Bernards Township's Chief Inspector, was working nearby and noticed the building. Drews correctly assessed that the building was taking place within the conservation zone, halting construction.

The mostly-finished wall sat untouched on the property and the Department of Environmental Protection was brought in to review the situation.

Eager immediately contacted town officials to seek advice, and brought in the counsel of the engineer and environmental specialist who testified about his property in a previous zoning application.

What the engineer and environmental specialist found, however, was that the rock wall actually enhanced the stability and environmental protection of the area. Fewer instances of runoff, less soil erosion and better structural stability of the home all resulted from the placement of the wall.

The DEP decided not to impose any penalties on the Eagers, but a separate application had to be made to the zoning board to allow the structure to stay.

The problem

Conservation easement areas are marked by the placement of temporary three-foot wood laths stuck into the ground, and permanent easement markers that are no more than two or three inches high. The laths fall out and the markers are often overgrown by vegetation and foliage.

Because Eager thought that a wall would be classified as landscaping, which is allowed in the easement zone, he never thought to check to make sure the wall was built outside of it. Contractors either never thought to check, or didn't see the markers either, resulting in the project's green-lighting.

The zoning board was faced with a difficult decision. All expert testimony pointed to keeping the wall as a means of preserving the environment, enhancing the structural stability and causing the least disruption to the area. Yet, allowing for the wall to be kept would set a precedent that zoning rules would not be enforced if building projects in violation improved the property in some way.

The result

After deliberation, the board voted unanimously to allow for the wall to stay with a handful of conditions to ensure environmental and structural integrity.

"I [was] initially troubled by the notion of what went on–especially about the addition of the wall past the pool and the obvious disregard for the easement," board member John Schulenberg said. "It speaks to us about future policies or decisions–that you can't even trust the homeowner, necessarily, to know the easement situations three years after he got the terms himself... That might transfer to other owners, and either another policy needs to be put in place or something needs to be done."

"That being said, I do recognize the fact that what's been done is done," continued Schulenberg, "And it probably is a better situation as a whole for the long-term success of the property."

Zoning and Planning Notes - Week of Dec. 6

The planning board voted unanimously on Tuesday to approve the subdivision of the lot on 49 Liberty Corner Rd, owned by James Orthmann. Orthmann's plan is to split the lot, build a house with a conditional use apartment for his wife's parents, and sell the other lot to a potential home builder.

The board noted their reservations about the potential demolition of the carriage house located on the property, but reluctantly approved the application. The carriage house was built in 1871, and was once used as a weekend retreat by Cyrus Vance, former U.S. Secretary of State under President Jimmy Carter.

The zoning board also heard the case of John Ross of 41 Harrison Brook Drive. The board voted 5-2 in favor of the application, to keep an elevated deck, built without a permit, that encroaches on the 100-year flood plain of the property. The no votes were due to fears of inadequate testing of the structural integrity of the deck.