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Fewer v. Zoning Board of Adjustment of the Township of Colts Neck

January 6, 2010


On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4388-06.

Per curiam.


Argued telephonically October 20, 2009

Before Judges Cuff, Payne and Waugh.

Plaintiff, Donald Fewer, a resident of Colts Neck, enlarged a dilapidated, nonconforming, two-story accessory structure and transformed it into a building with two and one-half bathrooms, a recreation room, exercise room, game room, library and media room.*fn1 Construction was completed without a building permit or necessary variances. Thereafter, plaintiff sought the required variances from the Colts Neck Zoning Board of Adjustment and was rejected. Plaintiff then brought an action in lieu of prerogative writs in the Law Division, challenging the Board's action as arbitrary and capricious and mounting a challenge to the governing zoning ordinance, §102-84.C(6). Upon rejection of his arguments by the trial judge, plaintiff filed the present appeal, raising the same issues that he raised in the underlying prerogative writs action. Additionally, plaintiff claims that the trial judge erred in barring testimony of his expert regarding the alleged incompatibility between the challenged ordinance and Colts Neck's Master Plan, which subject was not discussed in the expert's report.


Plaintiff is the owner of a five and one-half acre piece of property located on Conover Road in Colts Neck. The property is situated in an A-1 Agricultural Residential Zone that requires a minimum lot size of 88,000 square feet. Although the lot could otherwise be subdivided, plaintiff has sited his 17,000-square foot residence*fn2 in the middle of the property, precluding subdivision.

At the time that plaintiff purchased the property, it contained a number of dilapidated accessory structures. Plaintiff removed most of them, but retained the structure at issue in this case, a garage with an upstairs apartment. Even prior to the construction undertaken by plaintiff, the structure failed to conform to governing ordinances. Ordinance §102-87 requires a setback of 150 feet from Conover Road. The structure was sited 49.6 feet from the road. Ordinance §102-84.C(6) permits a maximum building footprint of 900 square feet, whereas the structure's footprint was approximately 1,143 square feet. The same ordinance limits the maximum floor area to 1,200 square feet, but the structure's floor area was 2,286 square feet. Although the record is unclear, it appears that the structure did not initially violate Ordinance §102-48D, which caps the permitted building height at twenty-five feet.

In May 2005, plaintiff commenced extensive renovations and three additions to the structure, transforming it from a rectangular building that was basically perpendicular to the road to an entirely architecturally different L-shaped building, with a 414-square foot addition paralleling the road, a 228-square foot semicircular single-story "meditation room" at the rear, and a twenty-three-square foot entry porch on the side of the building away from the road. The building's footprint was increased to approximately 1,601 square feet, its floor area to 2,928 square feet, and its height to twenty-six feet as the result of reconstruction of the roof. Both the addition forming the L and the semicircular addition to the rear of the building violated the Township's setback requirements.*fn3

The construction came to the attention of the Township in September 2005, and a formal complaint was issued by the Code Enforcement Officer on September 16, 2005. He advised plaintiff to cease construction and to file an application for a construction permit. However, that permit was denied as the result of the need for variances that had not been obtained. On February 23, 2006, plaintiff filed a development application in which he sought the necessary variances, claiming entitlement pursuant to N.J.S.A. 40:55D-70c(1) (hardship) and -70c(2) (planning). The Colts Neck Zoning Board of Adjustment held hearings on the application on April 20, 2006, June 15, 2006 and July 20, 2006. Plaintiff did not testify at the hearings, but certifications by him and his wife were presented. Plaintiff offered as expert witnesses on his behalf Gordon Gemma, a licensed professional planner, Richard DiFolco, a licensed professional engineer, and David Feldman, plaintiff's architect.

Gemma presented to the Board photographs, which he testified illustrated that the building at issue was screened from Conover Road and neighboring properties by vegetation.*fn4 He additionally noted that there were no sidewalks in the area, and that traffic on Conover Road was fast-moving, thereby decreasing the visual impact of the building. While acknowledging the new construction on the side of the building had a setback of only 63.13 feet and construction on the back of the building had a ninety-five-foot setback, Gemma emphasized that the new construction was further from the road than the 49.6-foot setback of the original nonconforming structure. He testified that the construction had created an esthetically pleasing structure; removed the threat to health, safety and welfare posed by the building's prior dilapidated condition; and had no detrimental impact on surrounding properties - positive features that Gemma found supported issuance of all the variances sought by plaintiff. Additionally, in addressing the increase in the footprint of the building beyond its already nonconforming 1,143 square feet to 1,601 square feet, Gemma stressed that the entire site continued to conform to applicable impervious coverage requirements. He also excused the building's violation of height restrictions by noting that a mere one-foot deviation existed. Gemma countered potential objections that the property on which the accessory structure stood could later be subdivided and sold as a residence by noting that the siting of the main house precluded such a step. Gemma found no negative impact as the result of the construction.

Gemma additionally testified that plaintiff's application met the goals of the Township's Master Plan because it permitted the restoration of a dilapidated building into an aesthetically pleasing structure and because the siting of the main residence preserved agrarian land and fostered the large-acre zoning plan applicable to the area.

Testimony by professional engineer DiFolco was given on the final day of the hearing. DiFolco stated that the semicircular addition to the rear of the structure was to be revised to remove walls and windows, leaving a roof and patio, thereby reducing the visual impact of the building but not changing its footprint or floor area. Like Gemma, DiFolco testified that the impermeable coverage created by the buildings on the site fell well below the Township's maximum. Moreover, DiFolco noted that the 900-square foot maximum footprint for an accessory structure that remained uniform throughout the three residential zoning districts in the Township was not proportional to lot size, and he suggested that that proportionality should be considered.

Additional testimony was given by plaintiff's architect, Feldman, as to the changes to be made in the sun or meditation room and as to the proposed uses of the remainder of the structure.

A member of the public objected to plaintiff's proposal, noting that the character and construction of the old structure had been completely changed, and that nothing necessitated the building's continued existence in a nonconforming location. He also argued that the buffering aesthetically benefited only plaintiff and his family, and that the proposed variances so far exceeded limits put in place by existing ordinances as to require denial.

At the conclusion of the hearing, the Board unanimously voted to deny the variances, expressing the opinion that the building, while undeniably beautiful, was too large and the deviations from required limits too great. The vote was memorialized in a resolution passed on August 17, 2006. In that resolution, the Board noted that, in seeking to satisfy the positive criteria required by the N.J.S.A. 40:55D-70c(1) and (2), plaintiff had focused on the dilapidated condition of the structure prior to reconstruction and its improved aesthetic value. Addressing the negative criteria, plaintiff focused on the lack of visibility of the structure from adjoining properties as the result of buffering. However, the Board found this evidence was insufficient to justify relief. It stated:

The positive criteria require[] either a demonstration that there is a hardship associated with the property or that the application relates to a specific piece of property wherein the purposes of the Municipal Land Use Law would be advanced by a deviation from the requirements of the Ordinance. With respect to the front yard setback issue the Board acknowledges that the structure is a pre-existing one. However, the Board of Adjustment notes that the existing structure is substantially larger than that permitted for accessory structures in the zone. The existing building is 127% of the allowable 900 sq. ft. of building footprint. Existing floor area is 190% of the 1,200 sq. ft. of floor area permitted in the zone. Consequently, the building is already substantially oversized. The Board of Adjustment finds no reason to place additions on an already oversized structure which additions will more egregiously violate the setback requirements of the zone.

The Applicant provided no compelling testimony to justify the need for the additions. The Applicant presented no testimony that the existing structure could not be renovated in place to accommodate the same recreational accessory uses on a more appropriate smaller scale. While the Board of Adjustment would agree that any addition to be placed on the structure would require variance relief due to the structure's existing location, the Board of Adjustment finds that since this is already a substantially oversized building, there is no extraordinary or exceptional situation affecting this property or the structures lawfully existing thereon which results in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the Applicant. The Applicant already has the benefit of an existing structure substantially larger than that which is permitted. That structure can be renovated and updated without creating the egregious new variances.

The Board additionally found that plaintiff had provided no testimony that would indicate that the additional building height was necessary or that a conforming height could not be accomplished. Nor was any evidence produced that the deviation from existing zoning would in some fashion advance the purposes of the Municipal Land Use Law (MLUL)*fn5 other than plaintiff's contention that the refurbishing resulted in an aesthetic improvement that would, in any event, only inure to the benefit of plaintiff and his family because of the lack of visibility from adjoining land that plaintiff claimed to exist. Further, the Board found that any aesthetic benefits could have been accomplished without increasing the size and height of the structure.

Additionally, the Board found that no testimony had satisfied the positive criteria for expanding the existing oversized structure to have a footprint of 178 percent of that permitted and a floor area of 246 percent of what was allowed. And it noted that no cost analysis was provided that would justify refurbishment, rather than demolition of the existing dilapidated, nonconforming structure and the construction of a conforming structure in another part of the five-acre property.

As a final matter, the Board found that plaintiff had failed to meet the negative criteria for the grant ...

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