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Palermo v. Zoning Board of Adjustment of the Township of Middletown

May 29, 2009

ROBERT PALERMO AND PATRICIA WARD PALERMO, PLAINTIFFS-RESPONDENTS,
v.
THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MIDDLETOWN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1160-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 28, 2009

Before Judges Skillman and Grall.

Plaintiffs Robert and Patricia Ward Palermo own property in the Township of Middletown. They sought and obtained an interpretation of a zoning ordinance from defendant Zoning Board of Adjustment of the Township of Middletown (Board), as authorized by N.J.S.A. 40:55D-70(b). The Palermos' question was whether a tennis court they converted from that use to a "patio" was exempt from the calculation of lot coverage under Middletown's ordinance. The Board concluded it was not, and the Palermos challenged the Board's interpretation in an action in lieu of prerogative writs. The trial court reversed, and the Board appeals from that order.

The facts are not disputed. The Palermos' property is in a residential zone in which the maximum lot coverage authorized is fifteen percent. Their 1.85-acre lot has five sides of unequal length. The structures are situated toward the rear of the lot, separated from the street by a wooded area and reached by way of a winding driveway.

The property has a two-story frame house with an attached two-car garage and an area for parking at the end of the driveway near the house. To the rear of and adjoining the house, there is a 710 square-foot patio and walkways connecting that patio and a 920 square-foot patio surrounding their pool. The 7200 square-foot tennis court is situated approximately forty feet from the house and to the left of the house and pool. There is a walkway leading from the tennis court to the one connecting the house and pool.

The Palermos applied for a development permit authorizing construction of an addition to their house. Because the lot coverage would exceed the limit, the zoning officer approved the Palermos' application for development on the condition that the tennis court be "dismantled and sodded/plant[ed] prior to requesting final building inspections for the addition."

Upon realization of work and expense entailed in removal of the tennis court, the Palermos considered other ways to bring their property into conformity with the lot coverage restriction. They did not seek a variance but sought to make superficial changes to the tennis court in order to have it "reclassified" as a patio and excluded from lot coverage. The stanchions and nets were removed from the court and the surrounding fence was lowered. A planter was erected on top of the playing area of the court, and the Palermos placed patio furniture on the exposed pavement around the perimeter of the planter. The area of the paved perimeter is 3155 square feet. The area of the first floor of the house and garage is 2993 square feet.

Although the zoning officer was initially receptive to the Palermos' plan to reclassify the tennis court as a patio, she ultimately denied a certificate of occupancy and directed the "surface of the court to be removed and landscaped as either grass or plantings." At that point, the Palermos asked the Board to interpret the ordinance.

Section 16-2.3 of the Middletown ordinances defines lot coverage to mean "the area of the lot covered by buildings and structures and accessory buildings or structures." Lot coverage also includes: parking areas and automobile access driveways and internal roadways, whether covered by an impervious or pervious material, patios associated with an in-ground or above-ground swimming pool, and all other impervious surfaces except for the following:

2. Unroofed patios not associated with an in-ground or above-ground swimming pool, terraces, decks and pedestrian walks which are accessory to a single family dwelling.

3. In-ground or above-ground swimming pool surface areas up to 800 square feet; the surface area of an in-ground or above-ground swimming pool above 800 square feet shall be considered as lot coverage. ...


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