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Rowatti v. Gonchar

Decided: November 20, 1985.

CARL ROWATTI AND ADRIANNE ROWATTI, PLAINTIFFS-RESPONDENTS,
v.
JOHN GONCHAR AND NINA GONCHAR, DEFENDANTS-APPELLANTS, AND GARY DEL MORO, ZONING OFFICER, MAYOR AND COUNCIL OF THE BOROUGH OF NORTHVALE, BUILDING INSPECTOR OF THE BOROUGH OF NORTHVALE, DEFENDANTS, AND BOARD OF ADJUSTMENT OF THE BOROUGH OF NORTHVALE, DEFENDANT-RESPONDENT. JOHN GONCHAR AND NINA GONCHAR, HIS WIFE, PLAINTIFFS-APPELLANTS, V. THE ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF NORTHVALE, DEFENDANT-RESPONDENT, AND ZONING OFFICER OF THE BOROUGH OF NORTHVALE AND BUILDING INSPECTOR OF THE BOROUGH OF NORTHVALE, DEFENDANTS



On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. For remandment -- Justice Stein. Stein, J., dissenting.

Per Curiam

Appellants own and occupy a residential dwelling in the Borough of Northvale. In 1981 they commenced construction of an addition to their home. Neighbors objected on the ground that the Borough's zoning code expressly prohibited two-family dwellings in all zones. The issue is whether the proposed structure resulted in a violation of that prohibition. The Northvale Board of Adjustment (Board) concluded that the addition would produce a violation. The Law Division reversed that determination. However, the Appellate Division, in an unreported opinion, agreed with the conclusion of the Board that there was indeed a violation and hence reversed the Law Division. We granted certification, 97 N.J. 587 (1984), and now affirm.

I

Appellants, John and Nina Gonchar, reside at 426 Briarwood Lane in Northvale. Carl and Adrianne Rowatti reside next door at number 428. The Gonchars wished to build an addition onto their house so that Mrs. Gonchar's widowed mother could

live with them. They made application for this addition and submitted the necessary building plans, which were prepared by an architect, to the Northvale Building Inspector. On the application form itself the Gonchars described the structure as a "mother and daughter new addition." The Northvale Inspector issued a building permit to the Gonchars on October 5, 1981.

The Rowattis first became aware of the appellants' construction plans on October 23, 1981. On that date the Rowattis noticed that an excavating machine had begun digging in close proximity to the boundary line between the two properties. Mr. Rowatti informed Mr. Gonchar of his belief that the digging appeared to be in violation of local sideyard requirements. Notwithstanding this uncertainty as to the location of the property line, the Gonchars proceeded to pour the footings on October 24, 1981. Shortly thereafter the property was staked and it was indeed shown that the owners' reliance on an old survey had resulted in a sideyard violation. The Gonchars applied for a sideyard variance, which was granted by resolution of the Board on November 19, 1981.

Following the Board's grant of the sideyard variance, the Rowattis attended a meeting of the Northvale Mayor and Council to protest that the appellants' addition amounted to a two-family or multi-family dwelling in violation of the municipality's zoning ordinance. In a letter dated November 28, 1981, a zoning official informed the Gonchars that the addition to their house constituted a violation of the Northvale zoning laws, and that all construction work on this facility had to stop immediately. The official later modified his order to allow the owners to resume construction pending a full review by the Board.

The Gonchars formally appealed the order of the zoning official to the entire Board in accordance with N.J.S.A. 40:55D-70, which states in part:

The board of adjustment shall have the power to:

a. Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative officer based on or made in the enforcement of the zoning ordinance * * *.

The owners appeared before the Board not to seek a variance for a nonconforming use but simply to receive a determination as to whether the addition would render the building a two-family dwelling.

After hearing the testimony of Mrs. Gonchar and Mr. Rowatti, in addition to the testimony of a real estate broker, a realtor, and the contractor who actually built the facility, the Board determined that the structure was a multi-family dwelling. In reaching this determination, the Board made the following findings:

1. That the purpose of the proposed addition would be to accommodate the applicant's mother who is a widow aged 74 years, and presently resides in a home in Avalon, New Jersey.

2. That it is the intent of the applicant that the proposed premises would be occupied only by a member of their family, namely, the applicant's widowed mother.

3. That the applicant was granted a variance by the Board of Adjustment on November 19, 1981 for a side-yard variance * * *.

4. That a stop-work order was issued by the Zoning Officer of the Borough of Northvale on November 27, 1981 and that the applicant continued work at their own risk as stipulated by Counsel.

5. The proposed addition * * * contains a separate bedroom, separate living room, separate kitchen with its own entranceway from the front of the building entering into a foyer, and also containing a full bathroom. The proposed kitchen in the addition is larger than the kitchen in the present existing structure. It shall contain its own closets and enclosed washer, and heating system with its own boiler.

6. There is also a second entrance from the porchway of the proposed structure, and a passageway between the main building and the addition.

7. The present garage will exist between the present structure and the proposed addition.

8. The utility lines will be the same as the main structure as well as the sewer lines. Presently, there are four occupants of the present structure: mother and father, and two children.

9. Part of the present structure will be altered.

10. That there will be no separate electric service, the existing meters will remain, but be relocated; the same gas service, and no separate water line.

11. There shall be a new furnace and hot water heater due to the fact that the existing system would be inadequate to accommodate this new addition.

12. The subject premises are located within a Residential 12.5 Zone District, providing for occupancy by not more than one family dwellings.

13. That the Zoning Officer, upon inspection of the premises, issued a letter directing the applicants to stop work immediately on November 27, 1981 based upon his interpretation that the plans indicated a multiple family dwelling, which is expressly prohibited in this Residential District.

14. That a number of neighbors in the surrounding dwellings objected to the structure as a multi-dwelling [sic].

The Board, by a vote of six to one, adopted a resolution memorializing its decision on December 17, 1981.

Thereafter, both the neighbors and owners appealed to the Law Division. The Rowattis sought review of the Board's approval of the sideyard variance, while the Gonchars appealed the Board's determination as to the status of the structure itself. On January 19, 1982, prior to the case being heard, the Law Division entered an order permitting the Gonchars to complete construction at their own risk. The court then affirmed the Board's approval of the sideyard variance; however, it disagreed with the Board that the structure amounted to a multi-family dwelling. The Appellate Division affirmed the Law Division with regard to the sideyard issue, which is not before us, the Rowattis not having sought review on that question; but it reversed on the issue of whether the addition converted the owners' home into a two-family or multi-family residence.

II

The ordinance in question provides that

[t]he following uses are expressly prohibited in all zones in the Borough of Northvale:

(2) Apartment houses, garden apartments, boarding-houses or any type of multi-family usage, two-family homes, duplex or double houses [ Northvale, N.J., Code ยง 74-11 (1981).]

The municipal Code defines a one-family dwelling as "a separate building designed for or occupied exclusively by one (1) family." The ordinance defines a multiple dwelling as "a

building designed [for] or occupied by more than one (1) family." Id. Finally, a "family" ...


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