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Wilson v. Brick Township Zoning Board of Adjustment

January 22, 2009

THOMAS WILSON, PLAINTIFF-APPELLANT,
v.
BRICK TOWNSHIP ZONING BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-119-07.

The opinion of the court was delivered by: Lyons, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued December 3, 2008

Before Judges Stern,*fn1 Payne and Lyons.

Plaintiff, Thomas Wilson, appeals from an order dismissing his complaint with prejudice and affirming the denial by defendant, Brick Township Zoning Board of Adjustment, of plaintiff's application for seven bulk zoning variances. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

Plaintiff owns property located in Brick Township, which is in an R-5 zone, permitting single-family residential structures. Plaintiff's house is a two-story frame dwelling set back forty-one feet from the street and eighteen feet from the rear property line. The rear of the property borders on Barnegat Bay and plaintiff has title to a riparian grant covering the land between the end of the property line and the bulkhead, which is constructed 2.48 feet beyond the property line.

In 1999, at the time that plaintiff purchased the property, there was an existing deck on the premises that covered most, but not all, of the back yard, and that extended beyond the rear property line past the bulkhead. After purchasing the property, plaintiff expanded the deck so that it covered the entire back yard. The deck was also raised fifty-four inches in height, and a swimming pool was built into the deck. Plaintiff constructed the improvements without obtaining the necessary permits, which led to litigation and his eventual payment of fines.

Plaintiff's construction did not comply with the Township's bulk zoning requirements regarding the location of the improvements. In July 2006, plaintiff filed an application with defendant for variances seeking approval of the previously constructed deck and swimming pool. Specifically, the bulk variances sought by plaintiff were:

Item Required Provided

rear yard setback (deck)

15 feet 0 feet rear yard setback (pool)

5 feet 0 feet (within existing deck)

side yard setback (dwelling)

5 feet (one side) / 12 feet (total)

5.1 feet (one side) / 11 feet (total)

side yard setback (deck)

5 feet (one side) / 12 feet (total)

0 feet (one side) /

5.6 feet (total)

side yard setback (pool)

5 feet 3.4 feet (within ...


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