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Cicchino v. Township of Berkeley Heights Planning Board

Decided: December 6, 1989.

DOMENICO A. CICCHINO AND BONITA D. CICCHINO HIS WIFE, PLAINTIFFS-RESPONDENTS-CROSS-APPELLANTS,
v.
TOWNSHIP OF BERKELEY HEIGHTS PLANNING BOARD, DEFENDANT-APPELLANT-CROSS-RESPONDENT



Pressler, Gruccio and Landau. The opinion of the court was delivered by Gruccio, J.A.D.

Gruccio

This is an action in lieu of prerogative writs. Defendant Township of Berkeley Heights Planning Board (Board) appeals from a judgment of the Superior Court, Law Division, which partially reversed and remanded the Board's denial of plaintiffs Domenico A. Cicchino and Bonita D. Cicchino's application for permission to subdivide property owned by them and their neighbors. The trial judge concluded that the denial was proper as to all issues except for one; i.e., whether plaintiffs satisfied the requirements of N.J.S.A. 40:55D-70(c)(2). He remanded the case to the Board for consideration of this issue. Plaintiffs cross-appeal from the trial judge's finding that the Board was correct in its determinations except as to the remanded issue. Plaintiffs argue that the Board's decision should be reversed in its entirety.

For the reasons hereinafter stated, we conclude that the Board was entirely correct in its denial of the application and that its action should be affirmed.

Plaintiffs own a parcel of property in the Township of Berkeley Heights identified on the tax maps of the township as Lots 5 and 5.01 of Block 1108, known as 47 Hamilton Avenue. The lots, which are considered merged due to their being substandard,*fn1 are presently improved with a one-story dwelling and an accessory building or shed. The parcel is located on the southwest corner of the intersection of Hamilton and Rutgers Avenues. The existing single-family residence in which plaintiffs reside is located on Lot 5 which fronts on Hamilton Avenue. The easterly side of the house "fronts" on Rutgers Avenue.

Lot 5.01, which is vacant land, is located in the rear (to the south) of Lot 5 and also "fronts" Rutgers Avenue.

An identically-sized parcel of property situated adjacent and immediately to the west of plaintiffs' parcel, also fronting Hamilton Avenue, and designated on the township's tax maps as Lots 4 and 4.01, in Block 1108, is owned by Oluf and June de Bang. These parcels, which are likewise considered as merged under the Berkeley Heights land use ordinance, are improved with a 1 1/2-story dwelling. As with plaintiff's parcel, the de Bang residence is located on the larger lot fronting Hamilton Avenue, Lot 4. Lot 4.01 is in the rear (south) of Lot 4 and "fronts" on College Avenue, which at that point is unimproved. All of this property is situated within the R-15 Residential Zone of Berkeley Heights Township.

The existing Lots 5.01 and 4.01 are identical in size, 60 feet running north and south, 100 feet running east and west. Each lot contains 6,000 square feet of area, for a total between the two lots of 12,000 square feet.

Plaintiffs applied to the Board with the consent of the de Bangs to subdivide and reconfigure the existing Lots 4, 4.01, 5 and 5.01 so as to create three proposed lots 4, 5 and 5.01. Lot 5.01 would be available as a building lot.

Proposed Lot 4 would contain the existing de Bang residence and would remain as is except that a 10-foot strip along its border with existing Lot 4.01 would become part of proposed Lot 5.01.

Proposed Lot 5 would contain the existing dwelling of plaintiffs and would remain as is except that a 20-foot strip along its border with existing Lot 5.01 would become part of proposed Lot 5.01.

Proposed Lot 5.01 would consist of the existing Lots 5.01 and 4.01 plus the two strips of land referred to above. Plaintiffs proposed, subject to approval of the subdivision, to purchase the de Bangs' existing Lot 4.01 ...


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