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Cherney v. Matawan Borough Zoning Board of Adjustment

Decided: November 18, 1987.

FRANK AND MARY CHERNEY, PLAINTIFFS-RESPONDENTS,
v.
MATAWAN BOROUGH ZONING BOARD OF ADJUSTMENT, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Monmouth County.

Antell, Deighan and R. S. Cohen. The opinion of the court was delivered by R. S. Cohen, J.A.D.

Cohen

[221 NJSuper Page 142] Plaintiffs Frank and Mary Cherney own a home in a single-family residential district in Matawan. It is a bi-level or raised ranch, with a bedroom, bath, den, laundry room and garages on the grade-level first floor and three bedrooms, two baths, kitchen, living room and dining room on the second floor. Soon after plaintiffs bought the house in early 1985, Mary Cherney's parents joined plaintiffs in living there. They slept in the downstairs bedroom. The father was in his eighties and had difficulty with the stairs to the second floor. Plaintiffs and their daughter used the upstairs bedrooms.

Without a building permit, plaintiffs installed compact kitchen facilities in a former closet on the first floor, including a sink and a stove. It is not clear if there was also a refrigerator. Connections to utilities, gas, electricity, water and sewer were not separated. Although the two floors could be made capable of serving as independent living quarters, they are not inhabited in that way, according to plaintiff Mary Cherney. Everyone uses the same outside doors. There are no partitions or doors separating the floors. "Anybody can go from one part of the house to the other." * * * "We eat upstairs, we eat downstairs, all summer we eat in the downstairs or in the back." By "we," she meant "the whole family."

In March 1985, the zoning officer told plaintiffs to remove the second kitchen which, he said, created an illegal two-family house. Counsel wrote back that he could find nothing in the zoning ordinance prohibiting plaintiffs' ground floor "summer kitchen." The zoning officer replied by letter, "That makes two of us." Yet, he maintained his position that it created an illegal two-family house. Plaintiffs then applied to the Board of Adjustment for an interpretation of the ordinance under N.J.S.A. 40:55D-70b, and for a variance if the interpretation went against them. N.J.S.A. 40:55D-70d. The Board ruled against plaintiffs, finding first that the second kitchen was prohibited by the ordinance, and second that the evidence did not demonstrate special reasons or satisfy the negative criteria of the statute for the grant of a variance.

In plaintiffs' subsequent prerogative writ action, the variance aspect of the matter receded, and the court and the parties concentrated on the issue of whether installation of the downstairs kitchen violated the zoning ordinance. The Law Division decided that there was no violation, and entered judgment for plaintiffs. We agree and thus affirm.

The Matawan zoning ordinance permits single-family detached dwellings in the district where plaintiffs' home is located. A "dwelling" is defined by the ordinance as:

A building or portion thereof designed for and used exclusively for residential occupancy, * * *

A "dwelling unit" is:

One or more living or sleeping rooms with cooking or sanitary facilities for one person or one family.

A one-family dwelling is:

A detached building containing only one dwelling unit for exclusive ...


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