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Fleres v. Zoning Board of Adjustment of the Borough of Bradley Beach

April 16, 2009

CAROL FLERES, PLAINTIFF-APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF BRADLEY BEACH, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3832-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 25, 2009

Before Judges Axelrad and Lihotz.

In this appeal, we review an order affirming the denial of bulk variances required to construct an addition to an existing residential structure. We conclude the Law Division judge incorrectly applied the law and accordingly, we reverse.

Plaintiff Carol Fleres is the owner of property designated on the tax map of the Borough of Bradley Beach (Borough) as Block 65 Lot 16, commonly known as 102A Third Ave, Bradley Beach (the property). The property, situate in the Borough's R-B or residential beachfront zone, contains a two-story single family attached dwelling located on a lot measuring twenty-five feet by one hundred and five feet. The structure is one-half of a two-dwelling unit structure, commonly referred to as a twin or duplex. The two homes share a common wall, but each has its own property lines and is separately titled to its owner in fee simple. The property is plaintiff's full-time residence.

Plaintiff submitted an application to the defendant Zoning Board of Adjustment of the Borough of Bradley Beach (the Board), seeking bulk variances to construct a one-story ten by twenty foot addition. Essentially, plaintiff's proposed construction would enclose the first floor rear concrete patio area and add a second floor balcony atop the new enclosure. Although the proposed use is conforming for the zone, due to the undersized nature of plaintiff's lot, the application sought bulk area variances for side yard setbacks, rear yard setback, building coverage and impervious coverage. Plaintiff's requests were summarized in the Borough engineer's report as follows:

A. . . . .*fn1

B. Minimum side yard setback - 2.5/5 ft. required, 0/6.9 ft. existing, 0/5 ft. proposed.

C. Minimum rear yard setback - 25 ft. required, 31.03 ft. existing and 22.53 ft. proposed.

D. Maximum building coverage - 35% allowed, 39.4% existing and 46% proposed.

E. Maximum impervious coverage - 60% allowed, 63.2% existing, 73.5% proposed.

On May 3, 2007, the Board held a public hearing. Plaintiff presented expert testimony from her architect and planner Thomas Petersen. Petersen explained the conditions of the property - its shape, size, and the structures permanently existing on the site - created a hardship to plaintiff due to the practical difficulties with meeting the zoning ordinance in constructing her proposed addition.*fn2 Because the house is only twenty feet wide, "everything has to be stacked from front to back," impacting mandated side yard and rear setbacks. However, because the addition would be built directly above the existing patio it really "does not increase impervious coverage."

Petersen acknowledged the "biggest impact" of the proposed construction would be on the adjoining residential structure. However, between plaintiff's property and the adjoining east side neighbor is a three foot brick wall topped by a three foot fence. Covering the patio is an attached awning. The proposed development would be eight feet in height. Thus, Petersen concluded the construction, as proposed, was "really not that much of a difference" from what currently exists. Moreover, noting the importance of privacy evidenced by the fact that plaintiff and her neighbor each ...


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