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Kallop v. City of Linwood Planning Board

February 10, 2009

FRANK B. KALLOP, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
CITY OF LINWOOD PLANNING BOARD, DEFENDANT-APPELLANT/CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2143-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 13, 2009

Before Judges Wefing and Yannotti.

Defendant City of Linwood Planning Board (Board) appeals from a provision of an order entered by the Law Division on February 6, 2008, which reversed the Board's decision to deny a variance to plaintiff Frank B. Kallop in connection with his application for the subdivision of property identified as Block 106, Lot 1 on the City's tax map. Plaintiff cross-appeals from the provision of the February 6, 2008 order, which upheld the Board's determination that plaintiff was required to obtain a variance for lot depth for his proposed subdivision. For the reasons that follow, we affirm.

We briefly summarize the relevant facts. The property at issue is essentially triangular in shape, with one of its sides fronting upon Wabash Avenue and the other upon Maple Avenue. Plaintiff proposed to subdivide the property and create two irregularly-shaped lots, one of 10,146 square feet, and the other of 11,094 square feet. Plaintiff asserted that, under the City's zoning ordinance, a variance for lot depth was not required. The pertinent provision of the zoning ordinance is Section 277-18 of the City's Code, which defines "lot depth" as "[t]he mean distance between the front and rear lot lines, measured in the general direction of the side lines of the lot."

At the hearing conducted by the Board on May 21, 2007, plaintiff presented testimony from Paul H. Koelling (Koelling), a licensed planner and surveyor. Koelling stated that the definition of "lot depth" in the City's ordinance did not take into consideration irregularly shaped or triangular lots. Koelling reviewed the ordinances in five nearby municipalities and found that, in two of those municipalities, the zoning ordinances had definitions for "lot depth" of triangular-shaped lots. Koelling said that, applying the methodology for determining "lot depth" in those zoning ordinances, the depths of plaintiff's proposed lots were more than the 100 feet required by the City's ordinance. He therefore maintained that a variance for "lot depth" was not required.

The Board's engineer, Robert A. Bruce (Bruce), responded to Koelling's testimony. He testified that the line of the property along Maple Avenue is the front lot line of the property, and the line of the property on Wabash Avenue is the rear lot line. Bruce asserted that, under the City's ordinance, lot depth is measured by the mean distance from the front to the rear lot line. Bruce noted that there is no side yard where Maple Avenue intersects with Wabash Avenue, and the other side lot line is about 140 feet long. Bruce opined that the lot depth for the two lots was the "mean" of the two side distances, which is 70 feet.

The Board accepted Bruce's testimony and unanimously determined that plaintiff required a variance for his proposed subdivision. Plaintiff then presented testimony in support of the variance application. Koelling stated that both lots have frontage on Maple Avenue and there would be no access over the bike path that presently runs along Wabash Avenue. Koelling noted that there is a structure on the property, which is located about four feet from the right of way on Maple Avenue. Therefore, the property presently does not have a twenty-foot setback, as required by the zoning ordinance.

Koelling described the existing structure as "a large barn" that had been used by a sculptor as a studio. He said that the building was "outdated" and did not "fit within the character of the neighborhood." Koelling asserted that, under the City's zoning ordinance, the property was located in a residential zone and its use as a studio was not permitted.

Koelling also stated that, based on the Board's earlier determination, the only variance required for the subdivision was the variance for lot depth. The proposed lots conformed to all of the other requirements under the zoning ordinance, including lot area, frontage, width and setbacks. He said that single-family homes would be constructed on the lots and they would generally be in keeping with the character of the other homes in the neighborhood.

Koelling further detailed the benefits that would result from granting the variance. Koelling said that the subdivision would eliminate the present non-conforming use with its non-conforming front yard setback. He stated that the two lots would be more "in keeping with the zone plan" than a single lot of more than 21,000 square feet. He said that the subdivision would be "an aesthetic enhancement" to the neighborhood. He also stated that he did not see any detriment from a grant of the variance.

Anne Bullen, a resident of the City, testified that, due to its angle, the intersection of Wabash and Maple Avenues presents visibility problems that make it difficult for motorists and cyclists to turn and cross safely. Bullen said that, if the property is subdivided, an additional driveway would be added "to this little small area right before the bike path[.]" Bullen stated that the new driveway could add four additional cars in the area. She also stated that Maple Avenue is "exceptionally narrow" in this area and she had seen "many close calls on this busy strip of road over the . . . [thirteen] years" she has resided in the neighborhood.

The Board voted to deny the variance. In its resolution memorializing that determination, the Board found that plaintiff did not establish that granting the variance would "advance proper zoning purposes, or that the negative criteria will be met." The Board stated that the property was already irregular in shape and granting the variance would "increase that irregularity." The Board found that, instead of one ...


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