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Klimack v. Berkeley Township Board of Adjustment

July 11, 2008

JOHN KLIMACK, PLAINTIFF-APPELLANT,
v.
BERKELEY TOWNSHIP BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT, AND FREDERICK R. WIEDEKE, JR., DEFENDANT/INTERVENOR-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0646-06PW.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 21, 2008

Before Judges Sapp-Peterson and Messano.

Plaintiff, John Klimack, appeals from the August 10, 2007 order of the Law Division affirming the denial by the Berkeley Township Board of Adjustment (Board) of plaintiff's application for a bulk variance to construct a single-family residence on Lot 17, Block 1022 on the Berkeley Township (township) tax map.

Plaintiff claims the Board's decision was arbitrary, capricious and unreasonable because his application "met all of the criteria necessary to obtain said variance, in that hardship arose out of the size and shape . . . as well as the fact that the zoning was changed after the remainder was built." We disagree and affirm.

Plaintiff's property is designated in the township tax map as an R-200 zone, which requires a single-family home to have a minimum of 20,000 square feet in area with lot frontage of 125 feet, a minimum side yard setback of fifteen feet, and a combined side yard setback of thirty-five feet. The property consisted of a lot area of 13,598 square feet with a lot frontage of 74.86 feet, a side yard setback of 13.28 feet, and a combined side yard setback of 28.33 feet. Contiguous to plaintiff's property is Lot 18, purchased by Frederick Wiedeke (Wiedeke) in 1991. Lots 17 and 18 were both previously owned by Svea Colton, who purchased Lot 18 in 1953 and Lot 17 in 1966.

Thus, Colton shared common ownership of the properties from 1966 to 1991. Prior to conveying the properties, first to Wiedeke and later to plaintiff, Colton never obtained lot subdivision approval.

In early 2003, plaintiff applied for a variance from the Board to build, for personal use, a single-family dwelling on his property. The Board denied the variance and plaintiff commenced an action in lieu of prerogative writs in Superior Court. The court entered an order permitting Wiedeke to intervene in the matter. On June 29, 2004, Judge Eugene Serpentelli entered an order giving the parties sixty days to research the issues related to the zoning of Lots 17 and 18 of Block 1022 prior to 1976, the assessments of both lots, and "issues relating to the possible merger of said Lots on or before 1976[.]" The order further directed that "at the conclusion of sixty (60) days, the matter will be remanded to the Berkeley Board of Adjustment for purposes of additional testimony, findings of fact, and the adoption of a Resolution that sets forth the decision of the Board based on the findings of fact and an exact figure with regards to the value of the property[.]"

Additional testimony was presented before the Board, written summations were submitted to the Board and, on October 12, 2005, the Board met and discussed the value of Lot 17. On December 14, 2005, the Board passed a resolution denying the variance. The resolution set forth the following findings of fact:

L. Exhibit[s] 0-1 and 0-2 contain Deed recitals indicating both Lot 17, Block 1022[,] and Lot 18, Block 1022 were created as part of a filed Map prepared by John Fellows, P.E., and L.S.[,] approved by the Township Committee of Berkeley Township on November 27, 1953.

M. The subject property was not created pursuant to or under the Municipal Planning Act of 1953 as Berkeley Township did not create its Planning Board until June 28, 1955.

N. The subject property and Lot 18 were initially created under the Old Map Act.

O. Mrs. Svea Colton, the predecessor in title, purchased Lot 18 on October 31, 1953 and sold said property to the Objectors, Frederick R. Wiedeke, Jr. and Diane Z. Wiedeke on November 25, 1991 for $300,000.00.

P. Mrs. Svea Colton, the predecessor in title, purchased Lot 17 on February 7, 1966 and sold said lot to the Applicant on January 20, 2003 for $10,000.00.

Q. Mrs. Colton shared common ownership of both properties from February 7, 1966 until November 25, 1991.

R. In [E]xhibit 0-5 the Berkeley Township Engineer indicates the current zoning ordinance of R-200 setting forth the bulk requirements which indicates lot size, set backs, etc. has been in place since 1976 and has not been changed since that date.

S. The relatively central location of the home with respect to Lots 17 and 18 is indicative of the intention to merge Lots ...


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