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Loscalzo v. Pini

Decided: October 5, 1988.


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

Petrella, Shebell and Landau. The opinion of the court was delivered by Shebell, J.A.D.


This is an appeal from a judgment of the Law Division in an action in lieu of prerogative writ. A permit was issued by the Borough of Fairview to defendants Oscar and Martha Cabrera for extension of a building according to submitted plans. Construction had commenced when plaintiff Mary Loscalzo filed a verified complaint and obtained an order to show cause with temporary restraints challenging the building official's issuance of the building permit.

While the action was pending, defendants Cabreras filed an application with the Board of Adjustment for variances to permit "addition and alteration" contending that although the building official erred, defendants' reliance on the permit justified the granting of a variance. The Board of Adjustment granted the variances requested. Plaintiff appealed the Board's ruling to the Mayor and Council. A hearing was held before the governing body resulting in the adoption of a resolution reversing the grant of the variances.

Plaintiff filed a second complaint in lieu of prerogative writ challenging the Board's grant of the variances in order to preserve plaintiff's right to challenge the Board's decision in the event the appeal to the Mayor and Council was held to be

improper. These two complaints were consolidated by the Law Division.

Plaintiff filed a motion in the Law Division for summary judgment; however, the judge denied plaintiff relief. He agreed that there was no factual dispute and granted summary judgment in favor of defendants. Thereafter, defendants filed formal motions for summary judgment. The judge heard argument and again dismissed plaintiff's complaint. Thereafter, plaintiff, with new counsel, moved for amended findings and a full trial. This motion was dismissed. Plaintiff appeals from these adverse orders.

Defendants' three-story building at 152 Anderson Avenue in Fairview is zoned as B-1 commercial/residential. Defendants seek to utilize the ground floor of their building for their florist business and live in one of two apartments above the store. Prior to their purchase of the building, defendants inquired of the building inspector about expanding the living quarters and the storage area of the existing store. They were informed that such alterations were proper and that they would be issued a permit. On July 1, 1986, defendants were issued a permit by the building inspector, after which they commenced construction.

On August 7, 1986, plaintiff Mary Loscalzo, a resident of the property adjacent to the defendants, filed an action against the building inspector and defendants charging that issuance of the permit violated the zoning ordinance. Plaintiff asserted that despite written notice by her, defendants continued to build. Plaintiff alleged irreparable harm due to the construction and sought to enjoin further construction and to remove the work that had been done.

According to Fairview Zoning Ordinance, Section 15-6.8b, dwelling units on the second and third floors of a mixed commercial/residential building are "conditional uses requiring approval of the planning board." Defendants applied to the Board of Adjustment stating that they were prevented from

complying with the zoning ordinance because their "property cannot be commercially utilized as the other surrounding commercial property and these facts constitute exceptional circumstances. . . ." Defendants sought a "special exception" from the ordinance, claiming that "[a]ll other buildings in the surrounding area have substantial lot coverage more or less as the same lot coverage proposed by the applicant. Therefore, said addition by the applicant will be in conformity with the surrounding buildings and neighborhood." Finally, defendants claimed as "special reasons" that they "had already expended close to $200,000 based on the reliance on the building inspector of the Borough of Fairview and the addition is approximately 75% completed."

The B-1 zone required a minimum lot dimension of 5,000 square feet whereas defendants' lot is 2,300 square feet. Defendants sought 75% lot coverage where only 25% was permitted, and although a 10 foot rear yard is required and there must be at least 10 feet on one side of any structure in this zone, defendants proposed to build within 6 feet of the rear property line and 3 feet of the property line on one side of the structure with zero setback on the other side. When purchased, defendants' structure housed a laundromat on the lower level and two apartments above. After expansion, the building was still to have a store and two apartments.

The building inspector testified before the Board of Adjustment that the area surrounding defendants' premises is "basically a mixed area," with buildings generally three stories in height and "the majority of them having a business on the grade level." He stated most have party walls, and the majority of the buildings have lot coverage in excess of 75%. He added that plaintiff's property has 90% lot coverage and is a three or four story building. He testified that the building would pose no problem concerning police or fire access to the surrounding area. The building inspector claimed he had inadvertently utilized an outdated zoning map in issuing the building permit.

Plaintiff opposed the variances because the almost completed addition was depriving her of light and air, and resulting in loss of rent from tenants moving because defendants' building blocked the windows in plaintiff's building. According to plaintiff, she must use her lights constantly, even on a sunny day, and her air flow has been practically extinguished. Plaintiff claimed that emergency vehicles would be denied access to her building because of the lack of any setback on the south side of defendants' property.

Plaintiff presented testimony of a licensed professional planner that defendants' existing dwelling is a "pre-existing non-conforming use" because of its classification under the borough ordinance as a conditional use and therefore the application constitutes "an expansion of a non-conforming use" requiring a variance under section d of N.J.S.A. 40:55D-70. The Board's attorney offered his opinion that "we are not talking about a non-conforming use, we are talking about a non-conforming structure, the expansion of a non-conforming structure. Since it is existing and we are expanding on this, you only need a Hardship Variance [pursuant to section c of N.J.S.A. 40:55D-70], not a Use Variance."

The question also arose as to whether a variance would be needed for parking spaces. Fairview Zoning Ordinance, Section 15-10.14, states:

Building Prohibition; Parking Spaces. No building or premises shall be used nor shall any building be built or erected, nor shall any building be altered so as to expand its usable floor area unless there is provided offstreet parking space in accordance with the following schedule:

Two family dwelling 3 spaces

Retail stores 1 space per 200 square feet ...

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