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Fieramosca v. Barnegat Township Zoning Board of Adjustment

October 20, 2009

RICHARD J. FIERAMOSCA, JR., AND KIM M. FIERAMOSCA, PLAINTIFFS-APPELLANTS,
v.
BARNEGAT TOWNSHIP ZONING BOARD OF ADJUSTMENT AND FONTE, LLC, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1008-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 7, 2009

Before Judges Sapp-Peterson and Espinosa.

Richard and Kim Fieramosca brought an action in lieu of prerogative writs to challenge the decision of the Barnegat Township Zoning Board of Adjustment ("the Board") which granted approval to an application filed by Fonte, LLC ("Fonte" or "the applicant") for bulk and use variances and final site plan approval for a property neighboring theirs. The trial court dismissed their complaint with prejudice and they appeal from that order. We affirm.

The property in question is an irregularly shaped bay-front tract that has been unoccupied for many years, located just east of the Barnegat Township Municipal Dock in the C-M Zone (commercial marine zone). On the site are a two-story structure that was once a restaurant as well as a dwelling and a shed.

However, the buildings are in a state of such disrepair that the site has been described as an eyesore.

The applicant is the contract purchaser of the property.

The contract for $475,000 is conditioned upon a certificate of occupancy being granted for the structure proposed in the application to the Board. The Board approved a plan to demolish the former restaurant and shed and to renovate and/or demolish the existing two-story structure so that it may be occupied by a bait shop and restaurant on the first floor and a one-bedroom apartment on the second floor. To accommodate this plan, the applicant required a considerable number of bulk variances and waivers. In addition, a use variance was required because the proposed facility was determined to be a "take-out restaurant," which is not a permitted use in the C-M Zone under the zoning ordinance.

The applicant entered into negotiations to purchase the property owned by appellants to eliminate the need for many of the bulk variances sought before the board. However, negotiations ended because the appellants declined to accept the applicant's offer of $350,000.

The Board conducted public hearings on the application on April 10, June 12, September 11, November 29 and December 11, 2007. The Board's findings were set forth in detail in the resolution approving the application. The approval was subject to a number of conditions, including a requirement that the applicant "obtain a 'statement of no interest' from the Tidelands Commission to permit the use of the entire property as presented on plans" to the Board. The resolution explicitly stated, "All approvals are specifically contingent upon the applicant's demonstration of full ownership of all the land as proposed for development." The testimony and exhibits received by the Board are described in detail in the written opinion of Vincent J. Grasso, A.J.S.C. and need not be set forth here.

Judge Grasso concluded that the Board "based its decision and approval on competent and substantial evidence and that its actions were not arbitrary, capricious or unreasonable," and entered judgment on the merits in favor of the Board and Fonte.

Appellants raise the following issues ...


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