On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1366-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Espinosa.
Plaintiff Henry Dudley sought a declaration that defendant Township of Manchester could not deny him a zoning permit for the construction of an addition based upon non-conformities on his property that were unrelated to the addition. He appeals from an order denying his motion for declaratory relief and directing that he exhaust administrative remedies. We affirm, essentially for the reasons set forth in the written opinion of Vincent J. Grasso, A.J.S.C.
We adopt the statement of facts set forth in Judge Grasso's opinion and note only the following salient facts.
In April 2008, Dudley began his efforts to obtain a zoning permit for the construction of a 621 square foot addition to his 1,299.55 square foot home in Manchester. Although an oversized lot, there are several non-conformities on the property that are not obviously related to the proposed addition. The non-conformities identified during Dudley's application process are: (1) front yard setback, as thirty feet is required by ordinance and the existing setback is twenty-five feet; (2) less than five feet side yard setback for a shed; (3) less than five feet side yard setback for a canopy used to shelter antique cars; (4) driveway less than five feet from side property line; (5) frame garage is 1040 square feet, exceeding the 1000 square foot maximum for such structures established by ordinance; (6) split-rail fence in front of property extends six feet into the Township right-of-way, while ordinance only permits fences to extend up to four feet.
It is undisputed that the lot is conforming and that the proposed addition itself does not violate any ordinances. Although the 25.10 foot front yard setback does not conform to the thirty foot setback now required, Township Ordinance 35-5 states:
GRANDFATHER CLAUSE: NONCONFORMING SETBACK.
Any single family dwelling on a conforming lot under this Chapter, which was constructed and in existence at the time of the adoption of the Amendment of the Zoning Ordinance in December, 1975, and which would be nonconforming solely by reason of the increase in front yard setback in the Zoning Ordinance of December 1975, and under this Chapter shall not be deemed nonconforming.
Based upon this grandfather clause, Dudley asserts that his house is conforming as well.
The thrust of Dudley's argument is that the house and proposed addition are conforming and that, since none of the non-conformities that exist elsewhere on the property will be exacerbated by the construction of the addition, the Zoning Board of Adjustment (the Board) should not consider those non-conformities in determining whether to issue a zoning permit.
However, as Judge Grasso correctly points out, the non-conformities on the property are not entitled to protection pursuant to N.J.S.A. 40:55D-68, because Dudley did not submit an application to the Board and has not met his burden of showing that the non-conformities existed prior to the adoption of the pertinent ordinances. Therefore, the non-conformities remained subject to review, either through the piecemeal approach of issuing citations for the various violations of ordinances, or through a more comprehensive and coordinated review in conjunction with the review of Dudley's application for a permit to build the addition. While, in some circumstances, a Board may find it appropriate to limit its consideration of issues on the property in the way Dudley advocates, the record here fails to support a conclusion that Manchester should be required to do so.
We recognize that authority exists for the proposition that a variance is unnecessary where the expansion of a nonconforming structure does not exacerbate the nonconformity, see William M. Cox, et. al, New Jersey Zoning and Land Use Administration § 11-4.1 (1989). However, particularly in light of the number of non-conformities on Dudley's property, we agree with Judge Grasso that the more persuasive authority calls for a variance application here. See Conselice v. Borough of Seaside Park, 358 N.J. Super. 327, ...