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Monteforte v. Planning Board of the Borough of Oceanport

August 25, 2009

FRANK MONTEFORTE, PLAINTIFF-APPELLANT,
v.
PLANNING BOARD OF THE BOROUGH OF OCEANPORT, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Monmouth County, Law Division, Docket No. L-926-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued July 7, 2009

Before Judges Grall and Gilroy.

Plaintiff Frank Monteforte appeals from the June 13, 2008 order of the Law Division that affirmed the decision of the Planning Board of the Borough of Oceanport (Board) denying an application for a minor subdivision of property known as Block 18, Lots 8, 9 and 10 (the property), Oceanport. We affirm.

Plaintiff is the contract purchaser of Lot 8 and a portion of Lots 9 and 10 designated as new Lot 8.02 on a proposed subdivision drawing prepared by A.J. Gordedo, P.E., of Two River Engineering, dated February 1, 2006. Thomas and Theresa Wenner are the owners of the property. The property is located on the northeast corner of the intersection of Algonquin Avenue and Mohawk Avenue. Lot 10 fronts Algonquin Avenue; Lot 9, located on the corner of the intersection immediately to the west of Lot 10, fronts both Algonquin and Mohawk Avenues; and Lot 8, lying to the rear of Lots 9 and 10, fronts Mohawk Avenue. Additionally, located immediately to the north of Lot 8 is a paper street identified on the tax map as Wyandotte Avenue. Located to the east of Lot 8 is Lot 7, owned by the Borough of Oceanport (Borough). That lot is wooded, unimproved and contains wetlands.

The Wenners purchased Lot 10 in 1982; on that lot is their single-family residence. They purchased Lot 9 in 1984; on that lot is a swimming pool, which services the residence on Lot 10. The Wenners purchased Lot 8 in 1985; although this lot is maintained along with Lots 9 and 10, it is vacant.

The property contains 25,043.92 square feet and is located in the Borough's R-3 residential zone. The R-3 zone requires a minimum lot area of 12,000 square feet for the construction of a single-family dwelling.

In April 2006, plaintiff filed an application for a minor subdivision of the property, together with six bulk variances. Plaintiff proposed to re-subdivide the property into two lots, new Lot 8.01 and new Lot 8.02. The development plan proposed to remove the lot line between Lots 9 and 10; and convey a 5.13 foot-wide strip of land along the northerly portion of Lots 9 and 10 to Lot 8. The remaining portions of Lots 9 and 10 are designated as proposed new Lot 8.01; and the vacant new lot is designated as proposed new Lot 8.02.

Proposed new Lot 8.01 would contain 15,939.86 square feet, and proposed new Lot 8.02 would contain 9,104.06 square feet. In addition to requiring a variance from the minimum lot area requirement for new Lot 8.02, plaintiff sought five other bulk variances: a lot depth variance for proposed Lot 8.01 where 100 feet is required and 94.87 feet was proposed; a lot depth variance for new Lot 8.02 where 100 feet is required and 85.24 feet was proposed; a lot coverage variance for new Lot 8.02 where 25% is permitted and 31.8% was proposed; a front yard setback variance for new Lot 8.01 where 30 feet is required and the existing pool encroaches therein; and a rear yard setback variance for new Lot 8.02 where 25 feet is required and 10.59 feet was proposed.

Following a hearing on September 27, 2006, the Board voted to deny the application. On January 24, 2007, the Board adopted a confirming resolution that included the following determinations:

* The applicant's plan advances zoning by proposing a single-family home for the new lot which is favored in the R-3 Zone.

* The applicant is taking a conforming large lot and seeks to subdivide same and in the process would create a non-conforming lot in the R-3 Zone that does not meet the neighborhood standards.

* The applicant seeks a subdivision for considerations that do not advance sound planning; namely[,] to sell the lot to be subdivided and to permit the construction of a home. In so doing variances from the ordinance requirements would be necessitated. Currently, the applicant Wenner is the owner of three lots that were acquired at different times and merged as a matter of law. There is a current home for Wenner on Lots 9 and 10, which lot also contains a swimming pool and other improvements. Wenner seeks to subdivide[] Lot 8 and transfer same to Monteforte to build another home. If accomplished, the new Wenner lot, or 8.01 will become an irregular trapezoidal lot fronting on Algonquin and Mohawk Avenues while the new lot would front on Mohawk and be triangular in shape. Although the lot area for the applicant's property exceeds the minimum lot area requirements, a ...


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