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Cohen v. Board of Adjustment of the Borough of Rumson

December 6, 2007

DR. JASON COHEN, PLAINTIFF-RESPONDENT,
v.
BOARD OF ADJUSTMENT OF THE BOROUGH OF RUMSON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-1957-06.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 30, 2007

Before Judges Skillman, Winkelstein and Yannotti.*fn1

Defendant, Board of Adjustment of the Borough of Rumson (the Board), appeals from a Law Division order that granted plaintiff, Dr. Jason Cohen, a variance, and reversed the Board's decision denying the variance. We reverse the provision of the order that grants the variance, but do not reinstate the Board's decision. Instead, we remand to the Board for further proceedings.

Plaintiff owns a 1.7-acre parcel of real property in the Borough of Rumson (the Borough). The property is zoned R-1 residential. In 2004, plaintiff proposed razing the then-existing house on the property and constructing a new one. He hired an architectural firm, Monteforte Architectural Studios, to design the new house. On November 29, 2004, Monteforte submitted plans that appeared to, but did not, conform to all of the zoning ordinance's requirements. Based on those plans, the Borough issued a building permit.

Plaintiff replaced Monteforte with new architects, Sasson & Rachlin. Sasson changed the plans, which, like the prior plans, appeared to conform to the Borough's zoning requirements, but did not. The zone permitted 6013.7 square feet of building coverage, and the house covered 6764 square feet. The house also failed to conform to the zoning ordinance's lot coverage requirements of 16,178.9 square feet; as proposed, total lot coverage was 16,908 square feet. Nonetheless, the Borough issued a building permit because the plans on their face appeared to conform to the zoning requirements and plaintiff began construction. Neither Monteforte nor Sasson had obtained or reviewed the Borough zoning ordinance before preparing the plans.*fn2

During construction, after receiving complaints from a member or members of the Borough Planning Board about the size of the house, the Borough engineer reviewed the architectural plans, grading plan, and survey, and concluded that the house exceeded building and lot coverage standards. As a result, the Borough zoning officer issued a stop work order. By then, the house had been framed and the roof shingled.

After the architect and contractor met with Borough officials, they made adjustments to driveways and other impervious surfaces, which conformed the house to lot coverage requirements. The remaining nonconformity was building coverage; a covered rear porch on the house should have been added to the building coverage calculation, bringing that figure to 6,306 square feet - approximately 293 square feet greater than the permitted 6013 square feet. Plaintiff obtained approval to close the house at his own risk while seeking a variance for that nonconformity.

The variance application was considered at a special meeting of the Board on February 21, 2006, where plaintiff offered the testimony of Robert J. Baselice, the building contractor; Edward Sasson, the architect; and Victor Furmanec, a planner. Also testifying in support of plaintiff's application was his next-door neighbor, whose home faced the porch with the offending roof.

Baselice testified that the roof over the porch was an integral part of the house's drainage system. He testified that it had a material effect on the design of the house, not simply an aesthetic effect. He said it helped "any water penetrating through the property, [to] lessen the . . . water coming into the house above windows and doors." He concluded that it was not possible to reduce the overall size of the building to make up the almost 300 square feet of excess building coverage.

Sasson asserted that the porch roof had a positive function, and "that removing the roof doesn't improve the aesthetics or the functionality of the building." He testified that the porch roof served to direct the water away from certain areas of the house; that "[t]he porch roof controls drainage."

The licensed planner testified about the positive and negative criteria necessary for a variance under N.J.S.A. 40:55D-70c(1). He said the porch roof had no visible impact on the neighborhood; it was only visible to one neighboring house. He testified that removing the porch roof would cause water to fall into the interior of the southern part of the home; it would leave windows and ...


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