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Cortese v. Strothers

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 6, 2007

JOHN AND SALLY CORTESE, PLAINTIFFS-RESPONDENTS,
v.
JOHN STROTHERS, DEFENDANT-APPELLANT, AND THE ZONING BOARD OF ADJUSTMENT FOR THE CITY OF NORTH WILDWOOD, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, No. L-309-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 20, 2007

Before Judges Wefing and Weissbard.

Defendant John Strothers appeals from a trial court order setting aside a resolution of the North Wildwood Zoning Board of Adjustment granting him a variance. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant Strothers and plaintiffs John and Sally Cortese own adjoining properties on Beach Creek Road in North Wildwood. The Cortese home is a two-story duplex situated on a lot approximately twenty-five feet by eighty-five feet. The Strothers lot is approximately eighty-five feet by eighty-eight feet and, in 2001 it held a one-story structure. The properties are located in the R-2 zone, which requires a six-foot sideyard setback. Both properties are non-conforming in this regard, however. The Cortese house has a sideyard setback of one foot six inches from the Strothers property line, and the Strothers house has a sideyard setback of one foot five inches from the Cortese property line. The houses are thus approximately three feet apart.

In 2001 Strothers submitted an application to the North Wildwood Zoning Board of Adjustment for variance relief because he wished to construct a second story on his home. Mr. and Mrs. Cortese were concerned about the proposal submitted by Strothers because of its potential impact upon their light, air and privacy. In response to their concerns, Strothers agreed that he would construct the second story in such a way that it would not occupy the entire footprint of the first story and further agreed not to place any windows on the side of the home adjoining the Cortese house. He also agreed to relocate a proposed second story deck away from the Cortese house. Based upon these accommodations, the Corteses withdrew their objections, and the Board granted the relief he had requested. It specified that he was to fireproof the entire side of his house adjoining the Cortese home.

Construction took place in the fall and winter months when the Corteses were not present. When they returned the following summer, they discovered that Strothers had not complied with the representations made to the Board in connection with its grant of a variance. Strothers had constructed a full second story, occupying the entire footprint of the first floor. He had, moreover, constructed an entire third story, for which he had made no application and received no approval.

After receiving citations from the town's zoning officer, Strothers filed a new application, seeking variance relief for the structure as built. After a hearing, the Board granted his application. The resolution adopted, however, is entirely bereft of any reasons why Strothers should receive such relief, especially in light of his gross disregard of the terms of his earlier approval. Plaintiffs filed a complaint in lieu of prerogative writs, challenging that resolution. Strothers has appealed from the trial court order finding in plaintiffs' favor.

We affirm the order of the trial court substantially for the reasons stated by Judge Valerie H. Armstrong in her written decision of March 29, 2006.

20070706

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