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F&E Realty v. Borough of Morris Plains Zoning Board of Adjustment

May 12, 2009

F&E REALTY, PLAINTIFF-APPELLANT,
v.
BOROUGH OF MORRIS PLAINS ZONING BOARD OF ADJUSTMENT AND RONALD CEGLIA, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-1863-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 24, 2009

Before Judges Winkelstein, Fuentes and Chambers.

In this appeal, plaintiff F&E Realty seeks to overturn the numerous variances extended to defendant-applicant Ronald Ceglia by defendant Borough of Morris Plains Zoning Board of Adjustment (the Board). The trial court affirmed the Board's resolution, and plaintiff has appealed. We affirm for the reasons set forth by the trial court.

The applicant Ceglia owns a corner lot on Route 10. The lot is oversized, consisting of 60,334 square feet; the minimum lot size for the area is 40,250 square feet. The property is located in the C-1 commercial zone, and borders the R-4 residential zone. It has a driveway opening from Route 10 that is at a fixed location that may not be changed due to requirements of the New Jersey Department of Transportation.

Ceglia seeks to construct two principal buildings, a gas station with a repair garage and a separate convenience store on the property. While a gas station, repair garage, and convenience store are all permitted uses in the C-1 zone, only one building for these uses is permitted on the lot under the zoning ordinance. As a result, a variance to allow two buildings was required. Further, a number of other variances were required in order to accommodate the two buildings on the lot, the mandated driveway opening, parking needs, circulation of traffic on the site, and other needs.

The Board held nine days of hearings on Ceglia's application for preliminary and final site plan approval, variances, and design waivers. At the hearings, Ceglia and his son testified, and Ceglia presented the testimony of numerous professionals. Plaintiff, the owner of a gas station located on Route 10, a divided highway, and across the street from applicant's property, opposed the application. Plaintiff presented the testimony of experts who raised a variety of concerns about the application. The Board also received input from its professional engineer and professional planner.

On May 21, 2007, the Board adopted a resolution approving the application, subject to various conditions. Plaintiff then filed this action in lieu of prerogative writ, appealing the Board's resolution. On February 14, 2008, the trial court affirmed the Board's decision.

On appeal, plaintiff contends that the record does not support the granting of the following variances by the Board:

(1) A variance under N.J.S.A. 40:55D-70(d)(1) to permit two buildings to be constructed on the lot.

(2) A variance under N.J.S.A. 40:55D-70(d)(3) to permit space of only 125 feet between one of the buildings and the nearest residential zone boundary, when the zoning ordinance requires that the distance be a minimum of 300 feet.

(3) A variance under N.J.S.A. 40:55D-70(d)(3) to allow 37 parking spaces when the zoning ordinance requires 100 spaces.

(4) A variance under N.J.S.A. 40:55D-70(c) to allow parking within the area of the front setback along Route 10 contrary to the ...


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