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Victor Recchia Residential Construction, Inc. v. Zoning Board of Adjustment of the Township of Cedar Grove

March 20, 2001

VICTOR RECCHIA RESIDENTIAL CONSTRUCTION, INC., A CORPORATION OF THE STATE OF JERSEY, PLAINTIFF-APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF CEDAR GROVE, AND THE TOWNSHIP OF CEDAR GROVE, DEFENDANTS-RESPONDENTS.



Before Judges Petrella, Newman and Wells.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 13, 2001

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

Plaintiff, Victor Recchia Residential Construction, Inc. (Recchia),*fn1 appeals from the entry of judgment by the Law Division upholding the denial by the Township of Cedar Grove Board of Adjustment (Zoning Board) of its application for a use variance, and declaring the Township zoning ordinance to be consistent with the Township's master plan.

On appeal, Recchia contends, (1) the Zoning Board improperly denied its application for a use variance and the Law Division improperly upheld the Zoning Board; and (2) the judge erred in finding the zoning ordinance consistent with the master plan.

Recchia applied to the Zoning Board for a use variance pursuant to N.J.S.A. 40:55D-70d for two tracts of land which are split-zoned*fn2 with a small portion of the property in the residential R-8 zone and the remainder in the limited industrial M-2 zone. Recchia sought the variance to allow seven single- family residential uses consistent with the R-8 zone. There is presently one house encompassing most of the residential portion of the two lots involved, which each have fifty feet of frontage on Little Falls Road.

The Zoning Board denied Recchia's application and set forth specific findings of fact and conclusions by resolution. The Zoning Board found that residential development of the property would be improper as it would impede the future development of the M-2 split-zoned property to the south of the subject property on Little Falls Road.

On April 23, 1999, plaintiff filed a complaint in lieu of prerogative writs in the Superior Court, Law Division. The judge upheld the actions of the Zoning Board and found the zoning ordinance was consistent with the master plan.

I.

On January 10, 1998, Recchia entered into an agreement to purchase lots 304 and 305 on the Cedar Grove tax maps and commonly known as 367 Little Falls Road, subject to the receipt of the necessary approvals to develop the property. The property is located on the corner of Little Falls Road and Old Bridge Road. Two lots are involved. Lot 305 is a corner lot with approximately fifty feet of frontage on Little Falls Road to the east and approximately 463 feet of frontage on Old Bridge Road. Lot 304 has frontage of about fifty feet on Little Falls Road and abuts lot 305 to the south. Lot 305 appears to be entirely zoned M-2. The R-8 zoned portion of lot 304 is a rectangle measuring approximately 50 feet by 150 feet.

As noted, the property is "split-zoned", approximately 7500 square feet of lot 304 lies in the R-8 residential zone and the remaining 60,000 square feet of the property lies in the M-2 limited industrial district zone. The portion of lot 304 in the R-8 zone begins at the property's southernmost point abutting Little Falls Road and proceeds north along Little Falls Road for fifty feet, and east into the property approximately 150 feet. The prior owner lived in an existing residence on the property spanning both lots and both the residential and industrial zones. The house is located primarily on lot 305 at the corner of Little Falls Road and Old Bridge Road and the remainder of the property essentially serves as a large backyard. The only other structure on the property, a garage separate and some distance from the house, is in the M-2 zone.

South of the property lies lot 303, which is similarly split-zoned and contains an existing residence fronting on Little Falls Road. The M-2 zoned portion of the neighboring property (lot 303) is used as a large backyard and if developed for industrial use it would have no access to Little Falls Road except over the R-8 zoned portion of the property. Any access to Old Bridge Road is blocked to the north by the property under contract to Recchia (lots 304 and 305). Approximately five lots to the south of lot 303 and on Little Falls Road are also split- zoned and contain single-family homes on Little Falls Road.

The area surrounding the property to the east and north is zoned M-2 and the property to the west is zoned M-1. On the zoning map this residential area containing the property in question appears like a thumb stuck in the industrial district zone from the south. Recchia presented a licensed planner who testified before the Zoning Board that the property to the east is put to a light industrial use with a driveway accessing Old Bridge Road. The planner further testified that the current landscaping on the property to the east consisted of fifty feet of fifteen to ...


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