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Schenker v. Planning Board of the Borough of Spring Lake

February 29, 2008

ALICE SCHENKER, PLAINTIFF-RESPONDENT,
v.
PLANNING BOARD OF THE BOROUGH OF SPRING LAKE, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-1583-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 8, 2008

Before Judges Coburn and Chambers.

Defendant, the Planning Board of the Borough of Spring Lake (Board), appeals from the trial court decision reversing the Board's denial of two variances requested by plaintiff, Alice Schenker. The Board granted plaintiff's request for variances to allow increased driveway and walkway coverage and an increase to the height of her side yard fence. These variances are not the subject of this appeal. The Board, however, denied her request for variances to construct a fence and retaining wall along portions of her front yards. That denial was overturned by the trial court in a decision which the Board now appeals. We reverse and reinstate the Board's resolution denying the variances.

Plaintiff owns a home located at 2000 Adrian Avenue in Spring Lake. The property is a 22,642 square foot corner lot, bordering Adrian and Ludlow Avenues with about 150 feet of frontage on each street. The house is a two-story structure with an attached garage, patios, walkways and a driveway. Plaintiff's expert acknowledged that the property is currently "aesthetically pleasing."

Plaintiff sought a variance to allow a fence to be constructed along a portion of her property facing Ludlow Avenue. She testified that she wanted to fence in a portion of the property in order to keep her dogs and her grandchildren within its borders. She proposed to put landscaping in front of the fence on the street side so that it would be visually pleasing. Because plaintiff has a corner lot, this fence would give plaintiff some visual privacy in the back of the house.

Plaintiff sought to construct the retaining wall in order to "balance" the level of the property and provide ease of access to her front yard along Adrian Avenue. The property originally had a retaining wall along the entire frontage of Adrian Avenue, but a prior owner had removed a portion of it. As a result, the retaining wall now runs along only part of that side of the property, and a portion of the front yard is lowered. Plaintiff proposed to continue the retaining wall along the Adrian Avenue side of the property, and to backfill it with dirt to raise the grade about three feet. According to plaintiff, this would improve the appearance of the property and would provide her with easier access to the front yard and driveway. She maintains that as currently configured, the lowered portion of her front yard is unusable and that the difference in elevation presents a safety hazard and visual oddity. She argues that the retaining wall and grading would correct these concerns and would make the property more pleasing visually and more in conformity with nearby properties.

On June 3, 2005, plaintiff filed an application for several variances regarding landscaping on the property. Public hearings were held on November 9, 2005, and January 11, 2006. In support of her application, plaintiff presented the testimony of Ray Carpenter, P.E., a professional engineer and planner, and Victor Furmanec, a professional planner, who testified in support of the application. While a number of other variances were granted, the Board denied plaintiff's request for variances to allow a fence and a retaining wall in the front yards. The resolution memorializing this decision is dated February 8, 2006.

Paragraph 4 of the resolution indicates that the variance for the fence was denied for the following reasons:

The Board finds that the variance relief in reference to the front yard fence must be denied. Borough ordinance 43-15 states "No fences or gates shall be constructed or placed in front yards." The Board finds that the zoning scheme in the Borough is to have open space in the front yards of the Borough's residential properties. The proposal to extend the fence from the rear of the property to and along Ludlow Avenue substantially impairs this zoning scheme. The Board finds that the applicant seeks to erect the fence proposed for personal reasons which include her personal sense of security and the need to contain her grandchildren when they visit. While the Board may understand and to an extent sympathize with the applicant's desires, the Board finds that the reasons presented do not rise to the level of hardship required to justify the variance nor do the reasons provided confer any land use benefits on the commmunity or promote the overall purposes of zoning. The Board finds that to permit a fence as proposed would detract from the unique qualities afforded by the zoning scheme and thus be a substantial detriment to the public good.

The variance for the retaining wall was denied for the following reasons set forth in paragraph 5 of the resolution:

The Board finds that the request to construct retaining walls as proposed must be denied. The Board finds that the need for the retaining walls proposed is being created by the applicant. The Board notes that the applicant intends to construct the walls and then backfill soil to raise the grade of the property. The Board finds that such a proposal runs contrary to the fence ordinance because the applicant proposes little more than a stone fence with dirt behind it. Such a proposal creates the same detriments as discussed in paragraph 4 above. The retaining wall also is contrary to the Borough's retaining wall ordinance which only permits retaining walls to control the existed grade of the soil so as to prevent erosion or protect structures.

The Board finds that any such conditions would be self-created. The Board finds that no hardship exists that would require the walls to be built contrary to the overall zoning scheme of the ...


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