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Burch v. Hardwick Township Zoning Board of Adjustment

February 22, 2010

ROBERT J. BURCH, PLAINTIFF-APPELLANT,
v.
HARDWICK TOWNSHIP ZONING BOARD OF ADJUSTMENT AND THE TOWNSHIP OF HARDWICK, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. L-514-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 12, 2009

Before Judges Graves and Sabatino.

Plaintiff Robert Burch (Burch) appeals from an order dated April 23, 2009, denying his motion for reconsideration of an order entered on March 4, 2009. That order modified the form of a resolution adopted by the Hardwick Township Zoning Board of Adjustment (Board). After reviewing the record and applicable law in light of the arguments advanced on appeal, we reverse and remand to the trial court for further proceedings consistent with this opinion.

Burch owns 4.3 acres of undeveloped property in Hardwick Township, Warren County. The property is designated as Block 1002, Lot 1.04 on the Hardwick Township tax map and it is located in an LD-Low Density Residential Zone District, which requires a minimum front yard setback of one hundred feet and a minimum side yard setback of fifty feet. The space available to build on Burch's property is restricted because Blair Creek runs through the property.

In plaintiff's initial application to the Board, he sought bulk variances with respect to both the front yard setback and the side yard setback, but Burch subsequently agreed to reduce the width of the house to comply with the side yard setback. In its resolution denying plaintiff's application for a front yard variance, the Board acknowledged the following:

The applicant and his engineer/planner have testified that the location of the dwelling house is mandated by the requirements of the New Jersey Department of Environmental Protection (NJDEP) with respect to the Blair Creek and its attending floodplain and that the applicant cannot locate the dwelling house any further for the front yard or side yard setbacks than has been proposed.

In addition, the Board did not dispute that the proposed dwelling could not "be located in full conformity with the minimum required (100 foot) front yard setback." Nevertheless, the Board was "not convinced that an increased front yard setback [could not] be achieved."

Following the Board's decision to deny his application, plaintiff filed a complaint in lieu of prerogative writs alleging inverse condemnation, among other things. Prior to trial, the parties engaged in settlement discussions, and ultimately entered into a written settlement agreement. The settlement agreement, which is attached to an amended consent judgment dated September 29, 2008, provides as follows:

1. The variance requested by the applicant for a front yard setback variance from 100 feet to 46 feet is granted.

2. The applicant agrees to relocate the residence so that it meets the side yard setback of 50 feet.

3. Prior to the issuance of a building permit, the applicant has the responsibility of obtaining any other required State (including Freshwater Wetlands), Federal or Local permits and approvals as required by law.

4. The Defendant Zoning Board shall adopt a Memorializing Resolution at a meeting on October 21, 2008 granting the front yard setback variance and shall submit the original executed Memorializing Resolution to the Plaintiff, with a ...


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