On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-22-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Lihotz.
In this action in lieu of prerogative writs, plaintiff, the Palopoli Family Trust, Frank C. Palopoli and James R. Koller, Esq., Trustees (Palopoli or plaintiff), appeals from the order of the Law Division entering judgment in favor of defendants Carey and Mary Ann Toner (the Toners or defendant), and upholding the resolution of Avalon's Zoning Board of Adjustment (Board) issuing the Toners a building permit for the construction of a residence, and finding the borough's oversized lot ordinance not applicable to the Toner property. We affirm.
By way of background, the Toners own property located in an R1-C Zone at 74 East Ninth Street in the Borough of Avalon. Adjacent to the Toner property is the Palopoli property, owned by the Palopoli Family Trust, also in the R1-C Zone, at 66 East Ninth Street. The Toner property is irregularly shaped, with 50 feet of lot frontage, a depth of 110 feet, a length of 160 feet at the rear of the property, and on the easterly side, a length of 15.76 feet and 144 feet. For present purposes, the only relevant dimension is the Toner lot's frontage of 50 feet, which corresponds with the R1-C Zone's minimum requirement of 50 feet for lot frontage. In comparison, the Palopoli property is rectangular, with 75 feet lot frontage and 110 feet in depth. The Toner property is 1.5 times larger than the Palopoli property.
After obtaining title to the Palopoli property on January 8, 2007, plaintiff demolished the existing single family dwelling to construct a new residence. Plaintiff was advised, however, that the proposed construction was subject to the borough's oversized lot ordinance, which required that any rectilinear parcel with lot frontage 25% over the minimum 50 feet and lot width over 25% of the minimum must have extended side setbacks. Specifically, section 27-7.3R of Avalon's zoning ordinance, titled "Oversized Lot Yard Requirements," provides:
In order to preserve light and air, where a parcel in any residential zone exceeds the minimum lot frontage requirements of the zone, by 25% or more, the minimum and total side yard areas shall be increased proportionally with the lot frontage and, Where the lot is rectilinear in shape, the lot width at the front and rear lot building setback lines must exceed the minimum lot frontage of the district by 25% or more in order for this requirement to apply or, Where the lot is irregular in shape the average of the lot width at the front building setback line and the rear building setback line must exceed the minimum lot frontage requirements of the zone by 25% or more.
The equation shall read as follows: Y = (X)(Z)
Where X = Minimum Total and Minimum Required Side Yard
And Y = The Additional Total Minimum Required Side Yard Setback for Property
And Z = Percentage that Lot Exceeds Minimum Frontage Requirements of the Zone
Plaintiff thus increased its property's side setbacks adjacent to the Toner property from the minimum 8 feet to 12 feet, and established a combined side setback of 27 feet. In all other respects, plaintiff complied with the ordinance's requirements.
The Toners' plan for their property was similar to plaintiff's, except for one difference. After the Toners acquired their property in November 2005 and demolished the 2500 sq. ft. existing residence, their plan for a new 7500 sq. ft. residence just 8 feet from the Palopoli property line was permitted by the borough. In an opinion dated October 12, 2007, Jeffrey Hesley, the borough's zoning officer, determined that because the Toners' lot frontage was only 50 feet, it did not exceed by 25% or ...