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Grove v. Steinhauser

December 14, 2007

JOHN C. GROVE AND CYNTHIA GROVE, PLAINTIFFS-APPELLANTS,
v.
SUSAN STEINHAUSER, ZONING OFFICER OF THE TOWNSHIP OF BERKELEY, AND THE TOWNSHIP OF BERKELEY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-1003-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 26, 2007

Before Judges Lintner and Parrillo.

Plaintiffs, John and Cynthia Grove, appeal from a Law Division order denying their motion for summary judgment, dismissing their complaint in lieu of prerogative writs seeking declaratory relief from a decision rendered by the Township of Berkeley's (Township) Zoning Officer, and remanding the matter to the Township Zoning Board of Adjustment (Zoning Board). While this appeal was pending, the Township amended the applicable ordinance. The passage of the amendment renders this appeal moot. We, therefore, dismiss this appeal and remand the matter to the Zoning Board to consider plaintiffs' appeal under the amended ordinance. Contrary to the judge's decision, plaintiffs need not provide public notice of their appeal hearing before the Zoning Board.*fn1

We combine the procedural history and relevant facts. In February 2006, plaintiffs applied for a permit to construct a twenty-two foot high noncommercial ham radio antenna, with the capacity to be expanded to eighty-six feet when in use, on their residential property in the Township. In 1991, plaintiffs had applied and were granted a permit to install a fifty-five foot high telescopic tower on their property. The Township Zoning Officer, Susan Steinhauser, issued a zoning permit denial pursuant to Chapter 35, section 89.7 of the Township Code because the antenna exceeded the fifteen-foot height maximum for accessory structures.

Chapter 89, section 89.7 of the Township Code, entitled "Accessory Buildings," states:

Accessory buildings shall not exceed fifteen (15) feet in height.

Accessory buildings shall occupy no more than twenty-five (25%) percent of the available front yard in a residential or rural zone and not more than forty (40%) percent of the available rear yard area in a business or industrial zone.

Accessory buildings attached to the main building shall be considered as part of the principal structure and shall comply with all setback requirements as set forth in the Schedule of Requirements.

Chapter 35, section 89.8a of the Township Code, entitled "Height Limitations and Exemptions," states:

Height limitations and exemptions in all parts of the Township other than the Pinelands Area shall be in accordance with the following standards:

1. The maximum building height and structure height shall not apply to noncommercial antennas, chimneys, church spires and other mechanical appurtenances usually carried above the normal roofline, provided that no fire hazard is created, and provided that such exception covers not more than ten (10%) percent of the roof or ground area.

2. Public buildings, schools and churches of fire-resistant construction shall increase all setbacks one and one-half (1 1/2) feet for each one (1) foot by which such building exceeds the height limit established for that zone, but in no case shall any building have a height greater than fifty (50) feet.

Chapter 35, section 3 of the Township Code provides "Definitions and Word Usage" and notes that "[t]he word 'building' includes the word 'structure.'" Additionally, it states that

[a]ccessory use, structure or building shall mean a use, structure or building which is subordinate to and serves a principal building or a principal use; is subordinate in area, extent and purpose to the principal structure or principal building or use served; contributes primarily to the comfort, convenience or necessity of the occupants, business or industry of the principal structure or principal use served; and is located on the same parcel as the ...


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