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Butler v. Jersey City Zoning Board of Adjustment

August 8, 2008

JAMES D. BUTLER, PATRICIA L. BUTLER, MARVIN GLAZERMAN, WENDY J. PARMET, JOHN J. HALLANAN, JR., JOHN J. HALLANAN, III, ALEXANDER M. SCHKRUTZ, ROBIN SCHKRUTZ, ARTHUR ZIGMAN, ROSEMARY ZIGMAN, LOWER GIFFORD AVENUE BLOCK ASSOCIATION, CHARLENE BURKE, PRESIDENT, AND WEST BERGEN/LINCOLN PARK NEIGHBORHOOD COALITION, PLAINTIFFS-APPELLANTS,
v.
JERSEY CITY ZONING BOARD OF ADJUSTMENT, BARBARA NETCHERT, DIRECTOR, DEPARTMENT OF HOUSING, ECONOMIC DEVELOPMENT AND COMMERCE AND ZONING OFFICER, CITY OF JERSEY CITY, ANTHONY LAMBIASE, DIRECTOR, DIVISION OF ZONING, CITY OF JERSEY CITY AND DJM GROUP, L.L.C., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1713-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 4, 2008

Before Judges Lisa and Simonelli.

Plaintiffs filed an action in lieu of prerogative writs challenging the decision of defendant Jersey City Zoning Board of Adjustment (Board) granting two variances to defendant DJM Group LLC (DJM). The trial court affirmed the Board's decision. We affirm.

DJM purchased a vacant lot located at 91 Gifford Avenue, Jersey City (the lot). The lot is slightly larger than the standard 25 x 100 foot (2500 square feet) lot, and was located in the R-1 zone at the time of DJM's purchase. A two-family home is permitted in the zone. DJM submitted a site plan and a building permit application to construct a two-family home (the proposed home). No variances were required. The zoning officer approved the site plan on November 16, 2006, and on December 19, 2006, the Jersey City Construction Office issued a building permit.

DJM began construction on December 21, 2006. On January 9, 2007, plaintiff Charlene Burke (Burke), President of the West Bergen/Lincoln Park Neighborhood Coalition, sent a letter*fn1 complaining that the building was going to be closer to the street than most of the other homes on the block; and that the building's design features would not be consistent with the design of many of the older homes in the neighborhood, which were a mix of late-nineteenth to early twentieth century Queen Annes and Colonial Revivals that included the "character defining features" of full length porches, prominent roofs, an absence of uninterrupted wall expanses, attached garages and large mature trees in the front yards. The neighbors wanted the proposed home to meet certain design standards consistent with the older homes.

In an attempt to appease the neighbors, DJM voluntarily agreed to stop construction and to submit a new application. DJM would construct the same house, but would include certain design standards and move the house back to match the predominant front yard setbacks*fn2 of the houses on either side. Moving the house back would result in a larger front yard setback and a smaller rear yard setback. As such, variances were required for the new setbacks. DJM applied for the variances, but reserved its rights based upon the approval and permit it had already obtained. City officials encouraged DJM to move quickly with its new application because the zoning ordinance governing the lot was being amended.

At a special hearing on February 12, 2007, DJM's expert architect/planner opined that moving the house back and increasing the front yard setback would benefit the neighborhood and would present a better zoning alternative.*fn3 The expert also testified about the lack of detriment to granting the variances, and addressed the design changes DJM agreed to make.

Members of the public did not object to the variances.*fn4

Rather, they asked the Board to review the project for compliance with design standards contained in the ordinance, claiming the project failed to meet these standards. They also argued that the zoning officer failed to consider the design standards prior to approving the site plan.

The city's supervising planner testified that the zoning officer was not required to consider residential design standards; that the zoning officer had not relied on the design standards for the previous five years; and that the setbacks approved by the zoning officer were valid and DJM was not required to apply for a variance or site plan approval. The supervising planner noted that DJM voluntarily agreed to certain design changes; and that the Board had no authority to stop the application, because it conformed to the bulk standards.

The Board granted the variances on February 12, 2007, without requiring further design changes. The Board found that the variances would be "consistent with the prevailing front yard setback on Gifford Avenue and provide[] greater light, air, open space and compatibility with neighboring properties in the front yard than the front yard setback previously provided in [DJM's] building plans, and the benefits of the variances substantially outweigh any detriment." The Board also recognized DJM's acquiescence in changes to the color of the front brick and masonry; the design of the front door; the width of the front garage door; the landscaping; and the shape of the window above the front door. The Board also agreed to waive further design requirements for construction of the house, "except as stated on the record."

On February 13, 2007, two amendments to the zoning ordinance became effective, and created a new R-1A zone that included the lot. For one-family and two-family homes, one amendment set a minimum lot size of 40 x 100 feet (4000 square feet), which rendered the lot non-conforming. The other amendment mandated that the front yard setback of homes within the zoning district "shall match the setback of the Primary Building Fa├žade . . . of the closest permitted use on either side of the subject parcel, provided that the building setback to be matched shall be closest to the predominant (most ...


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