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Conselice v. Borough of Seaside Park

March 18, 2003

ANTHONY CONSELICE, PLAINTIFF-APPELLANT,
v.
BOROUGH OF SEASIDE PARK, AND PLANNING BOARD OF THE BOROUGH OF SEASIDE PARK, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2415-01.

Before Judges Conley, Newman and Carchman.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 13, 2003

This is a zoning case. The narrow issue is whether a proposed expansion to the conforming use, a residence, of a pre-existing nonconforming integrated mixed use, residence and real estate office, requires a use variance, N.J.S.A. 40:55D- 70(d). The trial judge answered this question in the affirmative. We agree and affirm.

These are the relevant and undisputed facts. Plaintiff Anthony Conselice is the son of the owner of the property located at 210 North Central Avenue, Seaside Park, New Jersey (the property). Plaintiff resides at the property, and his family has operated a real estate business at that location for over twenty years. The real estate office is a "lawful, pre-existing nonconforming use" as prior to 1983, certain professionals were allowed to include a business in their home. The now repealed Seaside Park Ordinance, §81-5D, sanctioned a mixed use of the property and permitted: "offices of a member of a recognized profession who is in residence on the lot, provided that not more than fifty percent (50%) of the habitable floor area is in office space." The ordinance was subsequently amended to eliminate mixed uses and permit only detached single-family dwellings, thus rendering the property nonconforming. The property also is nonconforming with respect to the "bulk" requirements for property in the R- 1 Low Density Residential Zone as to minimum front yard setback on two sides (it is a corner property), lot area, lot depth, and property coverage.

Plaintiff sought to expand his one-story home by constructing a full second floor and a third floor "habitable attic," all of which would be used solely as residential space. The first floor would maintain its current office use that, according to plaintiff, would be restricted to its former limits; however, there would continue to be no separate entryway for the business and the residence, and no barrier dividing the two uses. In fact, plaintiff concedes that certain portions of the residence are presently and would remain common spaces used by both the residence and business. *fn1

Plaintiff first applied for a construction permit, and the construction official denied his application, explaining that the addition would involve the expansion of a nonconforming use, necessitating a "d" variance. The construction official referred the matter to the zoning board. Plaintiff then filed an application with the zoning board for a "d" variance, but later withdrew the application, and filed an application for site plan approval with defendant planning board (the board).

A public hearing was held on June 26, 2001. The board heard testimony from plaintiff, plaintiff's architect, and two residents who objected to the application, and considered the report of its engineer before denying plaintiff's application.

The board concluded that plaintiff's application sought the expansion of a nonconforming use, required a "d" or use variance and that the board lacked jurisdiction to grant such a variance, that being within the sole jurisdiction of the zoning board. Plaintiff filed an action in lieu of prerogative writs in the Law Division challenging the board's decision. On cross-motions for summary judgment, Judge Clyne granted the board's motion stating:

The court finds that an expansion of the permitted use cannot be isolated from the commercial use. It is the dual use that is prohibited. Expansion of the residential use by definition cannot help but to some extent and in some fashion impact the commercial use either by interfering with the use of the property by way of a limitation on the available number of parking spaces, for example, or by some fashion in terms of the pedestrian traffic. Taking, as I indicated before, for example, taking one or more of the off-street parking spaces for the expanded residential use will have a direct impact on those available for the commercial use. That is merely an isolated example of what the court deems to be addressed by the ordinance which prohibits this kind of dual use. Expansion of the residential portion of the premises, as I said before, by definition expands the dual use.

Having so concluded, the court finds the relief from the restriction lies with the Board of Adjustment and denies the application of plaintiff, and grants the application of defendant.

On appeal, plaintiff asserts that his expansion of the residential use of his home does not require a use variance as he only seeks to expand the conforming or permitted use. We first identify the specific issue that we must address. Not only is this property employed for two uses -- residential and business -- but the uses are "mixed"; that is, they are integrated, as portions of the permitted residential use are also being utilized as part of the nonconforming business use. We therefore distinguish this circumstance from a property containing conforming and nonconforming uses where the uses are distinctly separate and discrete, and there is no common usage of the property by both uses. On this appeal, we limit our consideration to the first factual scenario rather than the latter.

With these limits in mind, we commence our analysis by restating certain basic and relevant zoning principles. A zoning board of adjustment has the exclusive jurisdiction to grant use variances. N.J.S.A. 40:55D-70(d). See Foster-Hyatt Group of Cos. v. West Caldwell Planning Bd., 174 N.J. Super. 10, 12 n.1 (App. Div. 1980). The expansion of a nonconforming use requires such a variance and relief from a zoning board, see N.J.S.A. 40:50D-70(d)(2), and these "use" variances are highly disfavored. See Town of Belleville v. Parrillo's, Inc., 83 N.J. 309, 315 (1980). Where an expansion relates not to "use" but to "structure," a "c" or "bulk" variance will suffice, and such variance may be granted by the planning board as part of a site plan proceeding. N.J.S.A. 40:55D-60. The elements of proof are different. See Medici v. BPR Co., 107 N.J. 1, 4 (1987) (requiring that use variance applications not only satisfy positive criteria, that the use promotes the general welfare, but that the negative criteria, that the variance can be granted without substantial detriment to the public good, be demonstrated by "an enhanced quality of proof . . . that the variance ...


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