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Kaplan v. City of Linwood

decided: September 14, 1991.

DONALD M. KAPLAN, PLAINTIFF,
v.
CITY OF LINWOOD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND PLANNING BOARD OF THE CITY OF LINWOOD, DEFENDANTS



Winkelstein, J.s.c.

Winkelstein

Plaintiff, the owner of Lot 9.01, Block 182.01 on the City of Linwood tax map, appeals the decision of the City of Linwood Planning Board (the board) which denied plaintiff's application for a minor subdivision which would divide existing Lot 9.01 into two lots, proposed Lots 9.01 and 9.05. No variances were sought by plaintiff.

Existing Lot 9.01 lies in two different zones. It contains plaintiff's residence, which lies in dwelling A zone (the dwelling zone), which allows private single-family residences as a permitted use. It also lies in the conservation zone which prohibits the erection of buildings or structures and the use of the zone for anything other than municipal utilities.

This opinion is an elaboration of the court's oral opinion from the bench on September 14, 1991. There are two primary issues. First, the novel issue of whether the portion of plaintiff's lot which lies in the conservation zone may be used for calculation of bulk requirements, such as lot size and setback lines, without the necessity of a variance.

Second, assuming the bulk requirements are met, is the board automatically required to grant minor subdivision approval?

Proposed Lot 9.05 contains 73,616 square feet, measures approximately 279' X 253' and is irregular in shape. Approximately 8,500 square feet of Lot 9.05 are uplands and located in the dwelling zone, with the balance of the lot located in the conservation zone. The development plan is to sell the new lot for construction of a home.

The board concluded that measurements for lot size, setbacks and other bulk requirements must be calculated by using only the portion of the lot located within the dwelling zone. Plaintiff argues that measurements should have been made from lot (or property) line to lot (or property) line. Both parties agree that unless the entire lot is used for purposes of bulk-requirement calculations, the subdivision would fail to meet the minimum

lot area of 10,000 square feet and other setback requirements.

The zoning ordinance contains the following pertinent provisions:

ยง 57-18. Lot size, coverage and setbacks.

A. A lot within the Dwelling A Zone shall have a width of at least one hundred (100) feet, a depth of at least one hundred (100) feet, and frontage on a street of at least one hundred (100) feet, with a minimum of ten thousand (10,000) square feet.

C. Setbacks.

(1) The main building or any permitted detached accessory buildings shall be set back at least twenty (20) feet ...


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