The opinion of the court was delivered by: Serpentelli
This action in lieu of prerogative writs requires the court to address the unresolved issue of whether the expansion of a nonconforming structure requires a subsection c or d variance pursuant to N.J.S.A. 40:55D-70. The court also discusses the requisite number of votes for a use variance application before a consolidated municipal planning board, an element overlooked when the Municipal Land Use Law (hereinafter MLUL) was amended to allow for the creation of such boards.
Plaintiff seeks to reverse a decision of the Land Use Board of the Borough of Beach Haven (hereinafter Board) which denied a preliminary and final major site plan application, together with related variances concerning the proposed renovation of the Engleside at West Condominium units.
The property in question is located at the northeast corner of Engleside Avenue and West Avenue in Beach Haven and is shown as Lot 12, Block 142 on the tax map. It is in the MC-Marine Commercial zone. Multi-family residential dwellings are a permitted use in that zone at a ratio of three units per 10,000 square feet. The property has a total area of 14,093 square feet and therefore, under present regulations, could accommodate four units. However, there are now 17 condominium units on the site. Plaintiff's proposal centered on bringing the first floor elevation of the structures into compliance with the flood plain ordinance and converting the attic area of the units into a "loft" or "cupola", as it was alternately described in the record. The height of the dwellings would be increased by the addition of the loft area but would not violate existing height restrictions. A proposed decking necessitated by the elevation of the structures would increase the total lot coverage by 1.8%. The Plaintiff also requested a variance from the minimum off-street parking requirements. As outlined in the Board engineer's review letter dated September 25, 1995, the following ordinance violations exist or would be created by approval of the application:
(1) proposed lot coverage of 71.5%, where a maximum of 35% is permitted;
(2) existing front setback on West Avenue of 1.2 feet, where a minimum of 15 feet is required;
(3) existing front setback on Engleside Avenue of 0.4 feet, where a minimum of 7.5 feet is required;
(4) existing side setback of 3.3 feet where a minimum of 5 feet is required;
(5) existing rear setback of 4.35 feet, where a minimum of 5 feet is required;
(6) proposed floor area of a 1 bedroom unit with a loft of approximately 625 square feet, where a minimum of 810 square feet is required;
(7) proposed floor area of a 2 bedroom unit with a loft of approximately 900 square feet, where a minimum of 975 square feet is required;
(8) No on-site parking spaces, where 20 spaces are required.
In addition to the variances, the applicant also sought site plan waivers.
The Board, which is a consolidated municipal planning board established pursuant to N.J.S.A. 40:55D-25(c), with an authorized membership of nine persons, determined that a special reasons variance was required because the addition of the loft area constituted an expansion of the permitted density. *fn1 The Board also determined that six affirmative votes would be required to approve the subsection d variance. A motion to approve the site plan application, all variances and waivers received five affirmative votes and three negative votes, one member being absent. Therefore, the application was deemed denied. This appeal followed.
The Plaintiff contends that the Board erred as a matter of law in treating the application as a subsection d variance and, in any event, only five affirmative votes were necessary to approve the subsection d variance. Plaintiff further argues that since the relief required here was a subsection c variance and the application received five affirmative votes, the application should be deemed approved. Lastly, plaintiff asserts ...