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Fernicola v. Planning Board of the Borough of Allenhurst

April 7, 2009


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-4557-06.

Per curiam.


Argued March 10, 2009

Before Judges Winkelstein, Fuentes and Chambers.

Defendants, David and Rochelle Beyda (collectively, Beyda), own a home in Allenhurst. Plaintiff appeals from the Planning Board's*fn1 approval of defendants' application to convert a portion of their existing two-car garage to a pool house.*fn2 Beyda cross-appeals from the Board's decision that a use variance was required for the proposed pool house. In a January 22, 2008 order, the trial court affirmed the Board's approval of Beyda's application. We agree and affirm, which renders Beyda's cross-appeal moot.

On February 3, 2005, Beyda applied to the Board for use and bulk variance approval to construct a swimming pool, convert their existing garage to a pool house, and construct a new garage and covered porch on their property. The Board heard the application on March 16, 2005. At that hearing, Beyda presented testimony of architect Stephen Carlidge. Because Beyda's planner, James Higgins, was unavailable to testify at the hearing, the hearing was adjourned. In response to concerns from the Board and the public regarding the construction of a new garage in addition to the converted pool house on the property, Beyda offered to present an alternative plan that would not include a new garage.

Over a year passed before Beyda returned to the Board, submitting a revised application. The meeting was scheduled for May 17, 2006. Notice of that meeting was published in the local newspaper on May 5, 2006, and it was duly served on all property owners within 200 feet of Beyda's property. The notice, however, inaccurately stated the date of the meeting as May 17, 2005, rather than May 17, 2006.

The notice described Beyda's proposed construction:

Applicant proposes to convert an existing two-bay garage into a one-bay garage with the remaining area to be used as an accessory recreational area which will include a bathroom, sink, dishwasher and refrigerator. In addition, Applicant seeks to construct a swimming pool and covered porch on the rear of the existing dwelling.

In their revised application, rather than converting the entire existing garage to a pool house and constructing a new garage, Beyda proposed to keep the existing garage and convert a portion of it to a pool house/cabana area. The revised application also sought an interpretation, pursuant to N.J.S.A. 40:55D-70(b), that the municipal land use ordinance permits a pool house or cabana as an accessory use to an existing, single-family home. In the alternative, should the Board determine that a pool house was not a permitted accessory use, the application requested a use variance, in addition to bulk variance relief from side and rear yard setbacks.

On May 17, 2006, Beyda appeared before the Board; however, because the Board lacked a quorum, the application was adjourned to the next regularly scheduled meeting, June 21, 2006. The Board announced the adjournment and did not require that Beyda send new notices. On June 21, 2006, Beyda again appeared before the Board. At Beyda's request, the Board announced that the application would be carried to its July 21 meeting.

On July 11, 2006, Beyda's attorney wrote a letter to the Board confirming the Board's consent to continue the application to the August 16, 2006 meeting. The Board did not request Beyda to give further notice, and, none was given. When the application was not heard on July 21, the Board failed to announce that it was adjourned to the August meeting.

When the Board heard the application on August 16, 2006, the Board's attorney instructed the Board that it was a new application, and the Board should not consider the testimony from the 2005 meeting because some members of the Board were not present at that meeting.

The first issue at the meeting was whether Beyda required a use variance. Carlidge explained Beyda's proposal to construct a pool and enhance the use of that pool by converting a portion of the existing two-car garage to a pool house. The proposed pool house consisted of a full bathroom, a counter space with sink, and a refrigerator. Higgins testified that from a planning perspective, Beyda's proposed use of the existing garage as a recreational pool house is "customarily, habitually or reasonably associated with the principal use of the property." He explained that the ...

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