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Delevi v. Zoning Board of Adjustment of the Township of Marlboro

March 15, 2010

VLADIMIR DELEVI, PLAINTIFF-APPELLANT,
v.
THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MARLBORO, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2246-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 5, 2010

Before Judges Fuentes, Gilroy and Simonelli.

Plaintiff Vladimir DeLevi appeals from the December 22, 2008 order of the Law Division that affirmed the decision of the defendant Zoning Board of Adjustment of the Township of Marlboro's (the Board) denial of his application seeking bulk variances to construct a single-family dwelling on property known as Block 282, Lot 6 (the property), Marlboro Township. We affirm.

The property, located in the R-60 residential zone, is a vacant, triangular-shaped lot with approximately 785.3 feet of frontage along the southerly side of Hawkins Corner Road. The easterly side of the property is 124.48 feet in length, and the southerly side, which forms the municipal boundary between Marlboro Township and Manalapan Township, is 783.64 feet in length. Those adjoining properties are residential in character. The lot located directly across Hawkins Corner Road is owned and maintained by the Township of Marlboro for recreational and open space uses.

Previously, a predecessor in title to the property also owned vacant contiguous land along the property's southerly boundary in Manalapan Township. The predecessor subdivided the Manalapan Township land, but had not included the property as part of the subdivision, leaving the property as a separate, undersized, irregularly-shaped lot.

In 2005, the Estate of Benjamin Wiesenfeld, plaintiff's immediate predecessor in title, applied to the Board seeking approval of bulk variances to construct a single-family dwelling in excess of 3,000 square feet upon the property. The estate sought four bulk variances: 1) a variance from the minimum lot area requirement where 60,000 square feet is required, and only 48,671 square feet was proposed; 2) a variance from the lot depth requirement where 225 feet is required, and only 64.24 feet was proposed; 3) a variance from the front yard setback requirement where 50 feet is required, and only 30 feet was proposed; and 4) a variance from the rear yard setback requirement where 50 feet is required, and only 37.15 feet was proposed. On March 21, 2006, the Board denied the estate's application, determining, among other things that, although the lot is of an unusual shape and is extremely shallow, any hardship concerning development of the property had been created by the applicant's predecessor in title. Additionally, the Board determined that the estate had failed to demonstrate adequate efforts to bring the property into conformance with the zoning ordinance requirements, either by acquiring adjacent property or by offering the property for sale to adjacent owners. The estate did not appeal the denial of the variance application.

On an unknown date subsequent to the Board's denial of the estate's variance application, plaintiff purchased the property subject to the same zoning requirements that were in existence at the time of the prior application. On January 7, 2008, plaintiff filed an application with the Board seeking bulk variances to construct a 3,020 square-foot single-family dwelling with an oval driveway and a side-entry, three-car garage. Under the application, plaintiff sought five bulk variances: 1) a variance from the minimum lot area requirement where 60,000 square feet is required, and only 48,671 square feet was proposed; 2) a variance from the lot depth requirement where 225 feet is required, and only 64.24 feet was proposed; 3) a variance from the front yard setback requirement where 50 feet is required, and only 34.31 feet was proposed; 4) a variance from the side yard setback requirement where 50 feet is required, and only 47.55 feet was proposed; and 5) a variance from the rear yard setback requirement where 50 feet is required, and only 35.24 feet was proposed.

On April 1, 2008, the Board held a hearing to consider the application. At that hearing, plaintiff presented testimony from Robert Freud, a professional engineer; and Allison Coffin, a professional planner. Freud testified concerning the location of the prospective dwelling upon the property, site distances along Hawkins Corner Road, and surface water draining issues. Coffin testified that construction of a single-family dwelling upon the property would be consistent with surrounding uses. She also testified that the unique shape and exceptional shallowness of the property was a basis for granting a hardship c(1) variance, and that the construction of a single-family dwelling would advance the general purposes of the Municipal Land Use Law*fn1 (MLUL) by furthering appropriate population densities and desirable visual environment through creative development techniques. Lastly, Coffin opined that the negative criteria for granting the variances would be satisfied because the proposed use is permitted, and the construction of the dwelling would enhance the surrounding neighborhood.

At the hearing, plaintiff's counsel advised the Board that his client had negotiated to acquire a twenty-foot-wide utility easement from an adjacent property owner in Marlboro Township, and if the Board approved the variance application, plaintiff would then proceed with the necessary re-subdivision of the two properties, adding the twenty-foot-wide easement to his property. Louis Pannone, owner of one contiguous property in Manalapan Township who had previously expressed an interest in purchasing the property from the Estate of Wiesenfeld, also appeared and testified that he still had an interest in purchasing the property at the $15,000 price paid by plaintiff. Plaintiff did not pursue Pannone's offer to purchase the property.

At the conclusion of the hearing, the Board denied the application. On April 16, 2008, the Board adopted a memorializing resolution, finding, among other things, that:

1) the testimony of plaintiff's experts was not persuasive concerning satisfaction of the positive and negative criteria for the grant of the variances pursuant to N.J.S.A. 40:55D-70(c)(1) or (c)(2);

2) any hardship that may exist concerning development of the property had been created by one of plaintiff's predecessors in title;

3) plaintiff had failed to adequately demonstrate reasonable efforts to conform the property with the zoning ordinance by either acquiring adjacent property or by offering the ...


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