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Ciocon v. Planning Board of Borough of Franklin Lakes

Decided: March 1, 1988.


On appeal from Superior Court of New Jersey, Law Division, Bergen County.

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


[223 NJSuper Page 200] On this appeal, we are required to determine whether a rear-yard set-back requirement in a zoning ordinance concerning

a lot located in two municipalities refers to the distance between the residence and the rear-yard lot line located in an adjoining municipality or the distance between the residence and the municipal boundary. We hold that under the facts and circumstances in this matter, the rear-yard set-back is to be measured from the rear-yard lot line rather than the municipal boundary line which transects the rear of the lot.

Defendant, the Planning Board of the Borough of Franklin Lakes (Board), appeals from an order entered on January 26, 1987, by the Superior Court, Law Division, Bergen County, reversing its denial of an application for a variance by the plaintiffs, Hermogenes Ciocon and Celia Ciocon, from the rear-yard set-back requirements of the Franklin Lakes Zoning Ordinance (Zoning Ordinance).

After a hearing de novo on the record, Judge Hamer reversed the Board's decision essentially on the basis, as hereinbefore noted, that the Board's denial of a variance was arbitrary, capricious and unreasonable and alternatively that a variance was not required.

The essential facts are not in dispute. Plaintiffs are the owners of a tract of land consisting of approximately 3.7118 acres known as 912 Cherokee Lane in Franklin Lakes. A small triangular plot to the rear of the property consisting of 0.469 acres known as Lot 12, Block 604 is in Wayne Township while 3.2428 acres of the property is in Franklin Lakes. The property is divided by the municipal boundary between the Borough of Franklin Lakes and the Township of Wayne and also the boundary line between Bergen County and Passaic County.

Both parcels were at one time part of two larger contiguous tracts of land owned by Urban Farms, Inc., plaintiffs' predecessor in title. In 1984, Wayne approved a subdivision of the property. Lot 12, Block 604 in Wayne was subdivided from a large tract owned by Urban Farms in Wayne to join it with the parcel in Franklin Lakes. The resolution by the Wayne Township Planning Board, granting the subdivision imposed three

conditions: (1) the subdivided tract be added to Lot 9, Block 2101M in Franklin Lakes; (2) a deed be recorded with a new perimeter description of the lot in Franklin Lakes incorporating the lot being annexed thereto, and (3) since the property was designated as park land on Wayne Township's Official Map Of Parks, a variance must be granted by the board of adjustment. A use variance was granted by the Wayne Township on July 1, 1985 to permit construction of recreational facilities on the portion of plaintiffs' property located in Wayne. Thereupon Urban Farms conveyed the properties in Wayne Township and Franklin Lakes to plaintiffs as a single tract of land with a metes and bounds perimeter description including both lots.

When plaintiffs applied for a soil-removal permit and filed a site plan for the construction of their home, the Board took the position that the rear line of the property was legally fixed by reference to the lot line of Lot 9, Block 2101M, shown on the Tax Map of Franklin Lakes as the boundary between Franklin Lakes and Wayne rather than the rear lot line in Wayne. The Board advised that it required a variance from the 25-foot rear-yard set-back provision of the Zoning Ordinance.

Plaintiffs then applied to the Board for a variance from the provisions of the Zoning Ordinance. The matter was presented at a Board meeting on February 5, 1986. George Paul James, a licensed professional engineer and planner, testified for plaintiffs. He noted that the house as proposed would not be less than 400 feet from the closest neighboring home. The Board members expressed concern that the overlap into the Wayne property resulted from the placement of the home 400 feet back from the front lot line. James testified that the location of the house was the result of the topography of the land which had a very steep grade; he stated that the proposed location of the home was the most feasible and desirable location. He testified that the grant of the variance would be of no substantial detriment to the public good and that there would be no impairment of the Zoning Ordinance in this particular design.

The Board adopted a resolution rejecting plaintiffs' application for a variance essentially on the ground that the location of the pool and tennis court did not comply with the ...

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