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Martin v. Board of Adjustment of the Borough of Paramus

July 5, 2007

GEORGE MARTIN AND JUDITH MARTIN, PLAINTIFFS-APPELLANTS,
v.
BOARD OF ADJUSTMENT OF THE BOROUGH OF PARAMUS, ROBERT JANKOWSKI AND ELIZABETH JANKOWSKI, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2604-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 16, 2007

Before Judges Wefing and Messano.

Plaintiffs George and Judith Martin appeal the trial judge's July 27, 2006, order that: 1) reversed the grant of variances by defendant Board of Adjustment of the Borough of Paramus (the Board) to defendants Robert and Elizabeth Jankowski (defendants); and 2) remanded the matter to the Board, allowing the defendants to submit an "entirely new application . . . seeking the relief which was the subject of the [] litigation." These are the salient facts that gave rise to the dispute.

Defendants own property located at 535 Coolidge Place, Paramus, which is an irregularly-shaped lot located in a residential zone. Robert Jankowski is a builder and constructed the rear addition, deck and bay window that are the subjects of the dispute. Plaintiffs own the property next door.

In 1998, defendants sought and received a variance from the Board in order to construct an addition to their house. At the time, the zone restrictions required a thirty-foot rear yard setback and an eight-foot side yard setback. In support of the application, defendants submitted plans showing the addition to be twenty-three feet from the property's rear line and nine feet from the side yard lot line defendants share with plaintiffs. They therefore did not seek any variance from the zone's side yard setback restrictions.

The variance was granted and, as a condition, defendants were required to plant an evergreen buffer between the addition to be constructed and plaintiffs' property. It is undisputed that defendants never planted the landscaping until sometime immediately before their 2006 variance application which is the subject of this lawsuit. When constructed, the addition was twenty-seven feet from the rear lot line; however, it was also 7.2 feet from the side yard lot line.

In 2000, defendants constructed a deck on the rear of the house. They never sought a variance because they intended to construct the deck with the appropriate twenty-foot setback from the rear property line required for open decks in the zone. When actually constructed, the deck was only 19.6 feet from the rear yard lot line.

In October 2005, defendants applied for a construction permit to build a bay window on the side of their house that faces plaintiffs' property. The zoning ordinance, recently amended, increased the side yard set back in the zone to ten feet. In their plans, defendants represented the window addition was twenty-inches and did not encroach upon the side yard set back. In fact, defendants installed a larger window than shown on the plans and it is 8.2 feet from plaintiffs' lot line at its closest point.

The municipal building department advised defendants that variances were needed for the deck and window.*fn1 On February 2, 2006, defendants applied to the Board for the side yard and rear yard variances, and a public hearing was held on February 16, 2006. Robert Jankowski was the only witness called in support of the application. Essentially, he testified that the dimensions of the various improvements were minor mistakes that resulted in minimal incursions into the rear and side yard setback requirements. Defendants introduced a new survey, prepared that day, which showed the "as-built" addition and bay window in relation to the lot lines. The new survey demonstrated that the bay window encroached less than originally thought into the side yard setback.

Plaintiff, George Martin, who is an attorney-at-law, appeared as an objector and cross-examined defendant. At one point, plaintiff began to question defendant about the earlier applications he made for the 1998 variance and the building permits, attempting to show defendant's continued violation of the zoning ordinance.

[Plaintiff]: Mr. Chairman, I wanted to ask [defendant] about the violations of the zoning ordinance that he has committed, not pertaining to this variance, and you refused to allow me to do so. I wanted to point out that he violated [the ordinance] willy-nilly.

[Chairman]: I think you've made that point in your statement and that's as far as it can go. [] [T]he questions are limited to the testimony that's been given on this application. Other things that may have gone on in his property are not part of this case this evening.

After plaintiff's continued attempts to question defendant about the prior applications, the Board's attorney asked plaintiff,

[Board counsel]: I understand what you're trying to do. You're trying to establish that [defendant] said he was going to build the deck at 20 feet and actually built it at 19.6 feet, said he was going to build an addition that required a 23-foot rear variance and no sideyard variance, but it actually encroaches because it's only 7.02 feet from the sideyard. Showed a plan that didn't show the bay window, that he has now, and indicated in a plan . . . that the window was ...


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