On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-494-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Chambers.
Plaintiff, the Sandpiper Homeowners' Association, Inc., appeals from the March 25, 2008 order of the Law Division that affirmed the defendant Planning Board of the Borough of Keyport's (Board) grant of a use variance for property known as Block 39, Lots 4 and 5, in Keyport (the property). For reasons that follow, we reverse.
Defendant Cheryl Hill is the owner of the property. The property is located on the northeast corner of the intersection of Short Street and Beers Street and contains 12,725 square feet. Lot 4 fronts Short Street, is occupied by a two-story single-family residence, and is in the Borough's Residential A (RA) zone. Lot 5 fronts Beers Street, is a vacant parcel, and is located in the Residential C (RC) zone. The existing dividing line separating the two lots is also the dividing line for the RA and RC zones. Single-family residences are permitted in both zones; two-family residences are permitted in the RC zone, but prohibited in the RA zone.
The property is surrounded by a mixture of single and multi-family residences. One and two-family homes are located on Short Street and on neighboring Elizabeth and Kearny Streets. Within 200 feet on Beers Street is a row of fifteen attached apartment units. Directly across from the property on Beers Street is the Keyport Legion apartment complex which contains 208 units. Also across from the property on Beers Street is the Sandpiper Condominium as well as the Oyster Creek Condominium.
In October 2004, Hill submitted an application to the Borough seeking a zoning permit allowing her to build a two-family dwelling on the vacant portion of the property. On November 9, 2004, the Borough denied the application, determining that a minor subdivision of the property, together with use and bulk variances, was required. On January 3, 2005, Hill filed a land use application with the Board seeking approval to re-subdivide the property and to construct the two-family structure (the Hill I application). On January 26, 2006, the Board denied the application; on February 23, 2006, the Board adopted a memorializing resolution.
On September 20, 2006, Hill filed a second application seeking to re-subdivide the property into three lots, retain the existing single-family dwelling on one lot, and construct a two-unit townhouse structure on the remaining two lots, with the common wall dividing the townhouses serving as the dividing line between the second and third lots. That line would also conform with the Borough's boundary line dividing the RA and RC zones. In addition to the minor subdivision, Hill sought necessary use and bulk variances (the Hill II application). On November 9, 2006, the Board approved the use variance; on December 21, 2006, the Board adopted a memorializing resolution.
On January 29, 2007, plaintiff filed a complaint in lieu of prerogative writs, seeking to reverse the Board's decision. On January 28, 2008, the court conducted a trial in the matter. On March 25, 2008, the court entered an order, supported by a written opinion of March 5, 2008, affirming the Board's decision.
The first application sought to re-subdivide existing Lots 4 and 5 into proposed new lots 4.01 and 5.01, by relocating the dividing lot line forty feet south of its present location, bringing the common lot line closer to Short Street. Proposed southern Lot 4.01 would contain 5,801 square feet, whereas 7,500 square feet was required under the zoning ordinance at the time of the Board's decision for properties in the RA zone.*fn1 The existing single-family residence would continue to remain on this lot. Proposed northern Lot 5.01 would contain 6,924 square feet, whereas 7,500 square feet was required under the zoning ordinance for properties in the RC zone.
Hill proposed constructing a two-story, two-family structure on proposed new Lot 5.01 with the zone boundary line cutting through its center. One half of the proposed two-family structure would be in the RC zone, where two-family residences are permitted, and the other half of the structure would be in the RA zone, where two-family residences are prohibited. In addition to a use variance and a variance from the minimum lot area requirements, other bulk variances were required. At the conclusion of the hearing on the application, Hill failed to receive the necessary five affirmative votes for the grant of the use variance, and as such, the Board denied the application. On February 23, 2006, the Board adopted a memorializing resolution.
In September 2006, Hill filed a second land use application, seeking to re-subdivide the property into three lots, instead of two. Specifically, Hill proposed relocating the existing lot line forty feet south, closer to Short Street, and further subdividing the original proposed new Lot 4.02 into two lots, proposed new Lot 4.02 containing 2,984 square feet; proposed Lot 5 containing 3,940 square feet. The existing single-family residence would remain on proposed new Lot 4.01, containing 5,801 square feet. Hill again proposed constructing a two-unit residential structure on proposed new Lot 4.02 and Lot 5, with the RA/RC zone dividing line again running through the middle of the building. However, under this second application, Hill designated the structure ...