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Frank v. Planning Board of Borough of Ship Bottom

Decided: March 14, 1988.

FRANK AND THELMA ORLOSKI, PLAINTIFFS,
v.
PLANNING BOARD OF THE BOROUGH OF SHIP BOTTOM, DEFENDANT



Serpentelli, A.j.s.c.

Serpentelli

The interesting question raised by this case is whether a board of adjustment may condition a variance approval on the agreement of the owner not to subdivide the property involved and, if such a condition is invalid, whether the owner may subsequently disregard the condition and still retain the benefits of the variance.

This action in lieu of prerogative writs arises out of a denial by the Planning Board of the Borough of Ship Bottom of two minor subdivision applications relating to premises known as Lot 4, Block 38. The southerly property line fronts on Twenty First Street. The lot has a frontage of 80 feet and a depth of 100 feet. Presently, there are two dwellings located on it. On the easterly side is a two story residential dwelling set back approximately 23 feet from the front property line. On the westerly side is a one and one-half story dwelling located approximately two feet from the rear property line. The property is located in a zone which requires a minimum lot area of 4,800 square feet and a minimum frontage of 60 feet.

The present owners have made numerous applications to the local boards since they acquired the property in 1978. At that time, two dwellings were located on the premises. Both were

situated on the westerly side of the lot. In the front of the property was a one story dwelling with an attic which is referred to in the record as the "main building." At the rear of the property was a converted garage referred to in the record as a "cottage." In 1979, the plaintiffs applied to the Board of Adjustment for permission to improve the cottage by the addition of a deck and the installation of dormers. They also sought to move the main building from the westerly side to the easterly side of the property. The application was granted. However, the plaintiffs only completed the improvements to the cottage because they found that the cost of relocating the main dwelling was excessive and that it was structurally unsound.

In 1983, the plaintiffs again applied to the Board of Adjustment. They sought permission to demolish the main dwelling on the westerly side of the premises and to construct a larger two story single family residence on the easterly side of the premises. That application was granted. However, the Board imposed a condition which is at the core of the controversy before the court. The resolution recites that the applicants agreed not to seek a subdivision of the property into two nonconforming lots and that the approval was given with the understanding that the parcel would continue as one lot improved with the proposed main dwelling and the existing rental cottage.

On May 8, 1985, notwithstanding their promise not to subdivide, the plaintiffs applied to the Planning Board to divide the 80 foot lot into two 40 foot lots. They also sought to demolish the rental cottage on the westerly side of the premises and to replace it with a new dwelling. The application was denied. The plaintiffs then filed a prerogative writs action. While the action was pending and without knowledge of the court, the plaintiffs filed a new subdivision application with the Planning Board which again sought to subdivide the lot, but eliminated the request for the construction of a new dwelling on the

westerly portion of the premises.*fn1 That application was also denied and the plaintiffs amended their complaint to challenge the second denial.

Subsequently, because the parties were unable to provide a transcript of the 1983 proceedings, the court remanded the application to establish when the garage was converted for residential use. The purpose of the remand was to clarify the record so that the court could determine whether, aside from the condition prohibiting a subdivision, the plaintiffs would be entitled to a subdivision because the existing dwellings predated the adoption of any zoning ordinance in the borough. Beers v. Board of Adjustment of Wayne Township, 75 N.J. Super. 305 (App.Div.1962); MacLean v. Planning Board of Brick Tp., 94 N.J. Super. 288 (App.Div.1967). A hearing on remand was held on February 18, 1987. The transcript of the hearing is now before the court so that the record below is as complete as it can be.

A review of the February 18, 1987 transcript establishes to the court's satisfaction that both of the structures involved in the 1983 variance application were used for some type of residential purpose prior to the adoption of any zoning ordinance in the borough. While the record is still somewhat cloudy, a reasonable inference may be made that the property originally contained a principal dwelling and a garage. The garage was converted into a summer rental cottage at some time prior to the adoption of any ordinance which would have prohibited that use. The absence of zoning regulations and the increasing demand for summer housing encouraged this pattern

of residential development in the shore area. Homeowners saw the opportunity to provide additional housing for guests or to obtain rental income to defray the cost of their own housing, which was also most frequently not their principal dwelling. Thus, garages and other out buildings were converted for residential purposes and even the main dwellings were modified to provide duplexes or other additional living space. The facts in this case fit that pattern. Most zoning ordinances, including the Ship Bottom regulations, have now eliminated or severely restricted this type of land use.

The plaintiffs contend that at the time of the 1983 variance application which gave them the right to demolish the principal dwelling and build a new one in a different location, they could have obtained a subdivision of the lot under Beers so as to separate ownership of the two existing residences. Of course, that relief would not have given them the right to relocate the main dwelling. Instead, they opted to obtain the necessary variances to construct a new principal dwelling, but in the process, the Board of Adjustment took away the ...


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