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Maresca v. Board of Adjustment of the Township of Denville

July 25, 2007

KATHRYN MARESCA, PLAINTIFF-APPELLANT,
v.
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF DENVILLE, BEVERLY THOMPSON AND ROBERT THOMPSON, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. MRS-L-1511-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 6, 2007

Before Judges Parker, C.S. Fisher and Yannotti.

In this action in lieu of prerogative writs, plaintiff Kathryn Maresca appeals from an order entered on October 30, 2006 affirming the grant of bulk variances by defendant Denville Township Board of Adjustment (Board) to defendants Beverly and Robert Thompson. We affirm.

This is the second appeal in this case. On June 20, 2005, we reversed and remanded for further findings by the Board because defendants failed to "present sufficient evidence to establish that the location of the deck and the septic system prevented the construction of the addition to the rear of the property;" "[d]efendants also failed to present sufficient evidence to address the negative criteria in N.J.S.A. 40:55D-70(d);" and "[t]he Board made no finding that application of the side[-]yard [setback] restriction created exceptional difficulties or undue hardship."

Although we have detailed the facts in our prior decision, we will summarize them here to give context to our discussion.

Defendants are the owners of certain property at 12 Sleepy Hollow Road in Denville. The property consists of a lot that is 1121/2 feet wide and 145 feet deep, upon which a two-story dwelling was constructed in or around 1950. The property is located in the Township's R-1 zone, which requires a 75-foot front-yard setback and 30-foot side-yard setbacks. Defendants' home is situated 24.21 feet from the south line of their property. Plaintiff's home is the next property to the south. Defendants sought to build an addition to their home, which would extend the home ten feet further [sic] to the south. To construct the addition, defendants require variances to allow a side yard setback on the south side of 14.21 feet and a front yard [setback] of 49.7 feet.

After we remanded the matter, the Board heard the application as a new matter, although defendants had already constructed most of the addition while plaintiff's first appeal was pending. When we reversed, however, the applicants stopped work on the structure, which was 95% completed.

At the remand hearing, defendants explained that they had considered several options before choosing the addition they selected. The defendants proposed adding trees along the property line between their home and plaintiff's property. During the construction, defendants added a drainage pipe along the length of the addition to prevent runoff from flowing onto plaintiff's property. Several residents in the neighborhood testified in support of the application. They indicated that the addition was attractive, that it was largely blocked from the roadway by large trees and that it did not demean the neighborhood in any way. Some of the neighbors commented that the house looked nicer than before and increased the value of the neighboring properties.

The defendants' architect corroborated defendants' representation that the addition they constructed was the only real option open to them. Defendants' expert planner, Michael Spillane, testified that the addition would include new downspouts and an underground system leading to a drywell at the end of the property to capture any runoff. This would improve drainage and control the runoff better than it was before the addition was constructed. He further indicated that the slope from defendants' house to plaintiff's house would be modified with a stone retaining wall, further diminishing runoff to plaintiff's property. In Spillane's expert opinion, the size, shape and topographic conditions of the lot created a hardship requiring the variances to construct a cost-effective addition. In Spillane's opinion, defendants satisfied the negative criteria for a variance under N.J.S.A. 40:55D-70(c)(1) (hardship or (c)(1) variance).

With respect to N.J.S.A. 40:55D-70(c)(2) ((c)(2) variance), Spillane opined that the addition created no negative impact to either the existing zoning ordinance or the neighborhood. The addition, already largely constructed, was not imposing, did not look like a hotel, as plaintiff claimed, and did not intrude on any neighbors' sun, light or air. Rather, the house with the addition conformed to the surrounding neighborhood. Spillane further noted that building up as plaintiff suggested, rather than extending the first floor, would have created more building mass.

Joseph Di Pompeo, plaintiff's structural engineering expert, testified that plaintiff could build a second floor addition, rather than building out, without extensive retrofitting. He maintained that the difference in cost between building a second floor addition or extending the first floor was only about $2,200.

Nancy Socci, plaintiff's expert architect, claimed that a second floor addition was architecturally feasible and could have been built behind the house by removing the existing deck. Socci conceded that the addition, as built, did not look like a hotel and that the removal of the oil ...


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