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Children's Property, L.L.C. v. Zoning Board of Adjustment of the Township of Woodbridge

November 13, 2009

CHILDREN'S PROPERTY, L.L.C., A NEW JERSEY LIMITED LIABILITY COMPANY, PLAINTIFF-APPELLANT,
v.
THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF WOODBRIDGE, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-8535-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 13, 2009

Before Judges Yannotti and Chambers.

Plaintiff Children's Property, L.L.C. has appealed the denial of its application for minor subdivision approval, minor site plan approval, use variances, and bulk variances by the Zoning Board of Adjustment of the Township of Woodbridge (the Board). The trial court affirmed the Board's decision, and plaintiff now appeals to this court. We agree with the trial court that the Board's action was not arbitrary, capricious, or unreasonable and affirm.

I.

Plaintiff is the contract purchaser of six lots, totaling.394 acres, in the Township of Woodbridge in the R-6 High-Density Single-Family Residential Zone. Located on the property is a building containing a barbershop and a one-bedroom apartment on the first floor and a three-bedroom apartment on the second floor.

Plaintiff sought to renovate the first floor by constructing two one-bedroom apartments in place of the apartment and barbershop currently there. The proposal also included renovation of the facade of the building, a new layout of the sidewalks, landscaping, a new driveway, and six parking spaces.

Plaintiff also proposed to reconfigure the six lots into two lots. One lot facing Freeman Street (the Freeman Street lot) would contain the existing structure and would measure sixty-six feet wide and one-hundred feet deep (.151 acres). The other lot (the vacant lot) would remain undeveloped. It would face Whitess Avenue, an undeveloped paper street, and would measure 106 feet wide by 100 feet deep (.243 acres). Plaintiff agreed to limit development on this lot to a single-family home. The vacant lot would be subject to a ten by sixty-six foot easement to accommodate parking on the Freeman Street lot.

Since the vacant lot would be left on a paper street, development of that lot would require development of Whitess Avenue with installation of off-tract improvements. The Board expressly found that the other houses bordering Whitess Avenue would not benefit from these improvements to Whitess Avenue.

In order to proceed with this proposal, plaintiff sought recognition of the pre-existing nonconforming use, use variances for expansion of the nonconforming use, a minor subdivision in order to divide the six existing lots into two lots, minor site plan approval with waivers, and a bulk variance since the building's existing front yard setback is 20.1 feet, whereas 25 feet is required.

At the public hearing held by the Board in July 2006, plaintiff presented witnesses, including a professional engineer and professional planner. The Board also heard comments from the public expressing opposition to the additional density proposed by the application.

By Resolution dated September 21, 2006, the Board granted the portion of the application seeking recognition of the pre-existing nonconforming use, and that issue is not in dispute in this appeal. The Board denied the balance of the application. Plaintiff appealed to the trial court. On May 21, 2007, the trial court remanded the matter to the Board for findings of fact and conclusions of law and allowed plaintiff to reopen the record to present additional evidence on the intensification of use issue.

At the hearing on remand, plaintiff presented additional testimony, including that of its planner. By the time of the remand, plaintiff had already renovated the two apartments in the building, changed the facade, added the new driveway, replaced the sidewalk and started the landscaping. Members of the public spoke in opposition to the proposal, expressing concerns that the proposal would change the character of the neighborhood which has ...


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