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Smith v. Fair Haven Zoning Board Of Adjustment

November 13, 2000

DAVID SMITH, KIMBERLY SMITH, FRANK CRACOLICI, JESSE Y. HARRIS AND MARCELENE HARRIS, PLAINTIFFS-APPELLANTS,
v.
THE FAIR HAVEN ZONING BOARD OF ADJUSTMENT, JOHN M. RIDGEWAY AND DONNA M. RIDGEWAY, DEFENDANTS-RESPONDENTS.



Before Judges Baime and Wallace, Jr.

The opinion of the court was delivered by: Baime, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 18, 2000

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

Plaintiffs appeal from a judgment of the Law Division sustaining the grant of dimensional variances by the Fair Haven Zoning Board of Adjustment. They assert: (1) the Board lacked jurisdiction, (2) Board members engaged in impermissible ex parte communications during site visits, (3) the Board improperly limited the testimony of objectors, and (4) the grant of the bulk variances was arbitrary and capricious. We find no merit in plaintiffs' first three points. However, we remand the matter to the Board for reconsideration due to the inadequacy of the factual findings set forth in the resolution granting the variances.

I.

We need not recount the facts at length. In 1989, the predecessors in title of John and Donna Ridgeway applied to the Fair Haven Planning Board for a subdivision of their property. Lot 23 contained a house which did not conform to the front yard setback requirement of the applicable ordinance. The house had been built before the Civil War. Included in the subdivision application was a request to construct a two-story addition. The proposed addition did not increase any existing non-conformity because the front facade setback was maintained. However, the then-existing garage was to be relocated to a conforming position. The Planning Board granted approval to the subdivision of the property and the proposed addition.

The Ridgeways purchased the property the following year, but they took no action to construct the proposed addition. The matter remained dormant until 1998, when the Ridgeways applied to the Zoning Board to construct a two-story addition to the house. The proposal differed from that previously approved by the Planning Board in various particulars. As we understand it, the Ridgeways' plan was to move the proposed addition from the rear to the front of the house, further encroaching on the front yard setback. Their application requested dimensional variances to:

(1) reduce the required 100 foot minimum frontage to 99.54 feet, (2) reduce the required 100 foot minimum depth to 99 feet, (3) build on a lot fronting on a street that did not comport with Borough standards, and (4) enlarge the existing structure having a front yard setback of 12.3 feet where a minimum of 30 feet is required. We have no occasion to further characterize the bulk variances sought. It is fair to say, however, that although the proposed addition vastly expanded the living space allowed under the Planning Board's earlier approval of the subdivision, the new application reduced the front yard setback a mere foot.

We need not describe the heated arguments that ensued. The Zoning Board considered the application in the course of several meetings. Although the issue was hotly contested, the Ridgeways presented substantial evidence rebutting the claims of nearby property owners that the proposed addition was too large and was detrimental to the zone plan. Much of the Zoning Board's attention was focused on concerns that part of the property was occupied by a cemetery consisting of the graves of freed slaves. The evidence presented on this subject can fairly be characterized as equivocal. Apparently, the proceedings were widely reported in local newspapers.

In any event, the Zoning Board granted the dimensional variances requested by the Ridgeways. In its resolution, the Zoning Board cited the testimony of the Ridgeways' witnesses to the effect that the proposed construction would have less of an impact on neighboring properties than that approved by the Planning Board a decade before. The Zoning Board also addressed the specific claims of several of the objectors, finding that they lacked substance. Noting that "one of the objectives of zoning is to improve properties and provide additional space," the Zoning Board concluded that "the proposed construction would not be detrimental to adjacent properties." The Zoning Board conditioned its grant of the bulk variances on continuous monitoring of the construction by an archeologist and municipal officials.

Plaintiffs brought an action in lieu of prerogative writs challenging the Zoning Board's decision. Among other arguments, they asserted that members of the Zoning Board had engaged in impermissible ex parte communications while visiting the site. The Law Division judge remanded the matter to the Zoning Board for supplementation of the record concerning visits to the site and any conversations between members and other individuals. After the record was supplemented, the judge found that none of the discussions between members and other individuals was improper or prejudicial to the rights of the applicants or the objectors. The judge also rejected plaintiffs' other claims. Specifically, the judge concluded that: (1) the Planning Board had relinquished jurisdiction after approving the subdivision a decade earlier, and, therefore, the Zoning Board had the authority to consider the Ridgeways' application for dimensional variances, (2) the Zoning Board conducted its meetings in an appropriate fashion, and (3) the grant of the variances was not arbitrary or capricious. This appeal followed.

II.

We first consider plaintiffs' procedural arguments. These ...


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