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Fay v. Belmar Zoning Board of Adjustment

May 7, 2008


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3606-06.

Per curiam.


Submitted: April 9, 2008

Before Judges Cuff and Simonelli.

In this appeal, we review an order affirming three bulk variances but reversing another variance required to construct a new oceanfront home. We conclude that the trial judge improperly supplemented the record during a site visit and substituted his judgment for that of the local board of adjustment. Therefore, we reverse that portion of the order that set aside the variance to allow a third floor on the proposed house. The remaining variances are affirmed.

James Ward acquired the property located at 2000 Ocean Avenue, Belmar, in August 2004. The property is a corner lot situated across the street from the boardwalk that runs the length of the town and along the beachfront. The lot is 50 feet wide along Ocean Avenue and 100 feet wide along 20th Avenue. A single-story house was on the site when Ward acquired the property. The house did not conform to setback requirements in the current zoning ordinance.

The property is in the R-50 zone that requires a minimum corner lot size of 6000 square feet with 60-foot minimum frontage. The minimum yard requirements in the R-50 zone are 20 feet for the front yard, 5 feet for the side yards, and 35 feet for the rear yard. A corner lot, however, has two front yards and each front yard must conform to the minimum front yard setback requirement. Accessory buildings and structures must be at least 3 feet from the side and rear property lines. The principal building cannot exceed 35 feet in height and may contain no more than two and one-half stories. The maximum coverage for impervious surface is 55%, the maximum building coverage is 30%, and the minimum diameter is 30 feet. The maximum floor area ratio is 65% for lots containing 5501 to 6999 square feet and 70% for lots containing 4000 to 5050 square feet.

On or about March 30, 2005, Ward filed an application for bulk variances for construction of a single-family home with the Belmar Zoning Board of Adjustment (the Board). He proposed a three-story house with 49% lot coverage. The proposed house had 10 feet of frontage in each front yard where 20 feet was required, a 28.2-foot rear yard where 35 feet was required, and a 3.4 foot side yard where 5 feet is required. The proposed house also exceeded the 35-foot height restriction by 3.5 feet. Between the first hearing in June 2005 and the next hearing in January 2006, the plans for the house were substantially revised, so much so that the Board treated the January plan as a new application.

The revised structure contained a small basement where Ward proposed to install the residential mechanical equipment, including the equipment for an elevator to the second and third floors. The third floor was redesigned to allow for a rooftop pool and deck, as well as a bedroom suite for the applicant's mother. To accomplish this design, the architect stepped back part of the third floor.

As revised, the proposed lot coverage was reduced from 49% to 40.5%. The reduction was achieved partly due to use of pavers with drainage voids. The height of the structure was reduced to 35 feet, but still envisioned a third floor. The garage was reduced from a two-car garage to a one-car garage. In the revised plan, a portion of the house fronting Ocean Avenue was pushed back 4 feet and the structure in the rear was reduced by 3 feet. Thus, the revised plan would maintain the 3.3 feet side yard*fn1 and 28.2 feet rear yard setbacks of the existing single-family house. The revised plan still required front yard variances because the Ocean Avenue front yard would be 14.4 feet and the 20th Avenue front yard would be 10 feet.

At the hearing, the applicant's architect, Domingo J. Diaz, testified that he could design a house to conform to the zoning ordinance but the house would be only 20 feet wide. He described such a house as functionally obsolete and unusable for the owner.

The applicant introduced photographs of other structures along Ocean Avenue. These exhibits displayed many three-story residential structures 36 to 37 feet wide. The record reflects that many of these houses are in the R-75 zone with generally larger lots that can accommodate wider homes and three-story homes. In response to concerns expressed by some Board members that the lot would be overbuilt and the owner may convert the house to a two-family rental, the owner testified that he acquired the house for use by him and his family, including his mother and siblings. He asserted that he had no intention to rent the property.

Neighbors testified that the proposed house was out of character with the neighborhood. Some expressed concern about noise emanating from the rooftop pool. One neighbor expressed concern about the front yard setback because he believed his view would be blocked. Three neighbors, including respondents/cross-appellants Fay and Lepore, opposed the variance for the third floor because they had sought and been denied similar relief for their homes. One neighbor did speak in favor of the project noting that virtually every corner lot in Belmar was nonconforming. In response to the neighbors' concerns, the property owner stated that he would reduce the size of the fourth bedroom by 4 feet to allow his house to conform with other houses on his block.

At the second hearing on the revised application, the owner presented a plan that made the side yard setback 3.5 feet rather than the existing 3.3 feet. The revised plan also conformed with the 20-foot front yard requirement for Ocean Avenue, but the proposed porch on Ocean Avenue would intrude 8 feet into the front yard. In addition, the second floor was stepped back so that the 20th Avenue setback would be 14 feet. The basement was eliminated and the driveway was reconfigured to minimize sight obstruction concerns. Addressing the third floor, the architect testified that the third floor was necessary, not only to accommodate the pool, but also to fulfill the owner's purpose to provide a gathering place for his ...

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