On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-4178-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and LeWinn.
Plaintiffs John and Barbara Baziotis appeal from a judgment entered in favor of defendants, the Zoning Board of Adjustment of the Village of Ridgewood and Seth and Anne Matejka Grossman. The judgment was entered on plaintiffs' complaint challenging a variance granted pursuant to N.J.S.A. 40:55D-70c(2). The variance permits the Grossmans to replace an in-ground swimming pool located in their front yard with an "activity/ball court."*fn1
Under Section 190-119(C)(1)(c) of the Code of The Village of Ridgewood (hereinafter Ridgewood Code), both structures are prohibited in any front yard in any residential zone. Because the Board's balance of the benefits and detriments pertinent to a c(2) variance is premised on a factual finding not supported by the record, we reverse and remand for reconsideration of the application.
The Grossmans' property is located on South Murray Avenue. When they purchased the lot in 2004, the in-ground pool had been in place for decades. Since 2004, the Grossmans have installed fencing, child safety locks and landscaping in order to minimize the risk associated with a pool and establish a visual and sound barrier around the pool and its cracked cement deck.
To better meet the needs of their children and eliminate the risks associated with a pool, the Grossmans sought a variance to build an "activity/ball court" within the existing footprint of the pool and its deck. The "court" they propose will cover an area of fifty feet by thirty feet with an asphalt surface painted in a color that blends with the landscape. The surface will be no higher than six inches from ground level and the only structure will be a single hunter-green basketball backboard mounted on a pole. The existing fencing, locks and landscaping will be kept in place and there will be no lights.
Plaintiffs were the only objectors. They previously owned the Grossmans' property and live on an adjacent lot. In 1987, the lot now owned by the Grossmans was subdivided from a larger parcel then owned by plaintiffs.
Prior to the 1987 subdivision, the pool was situated where it is now, in a front yard. Plaintiffs' subdivision was approved by a resolution of the planning board dated August 18, 1987. In addition to the subdivision approval, the 1987 resolution memorializes a grant of a variance related to the swimming pool. That variance, however, is from a provision of a prior Code - "Chapter 29 Section 29-16[, which,] require[d] that any swimming pool must be located at least 10 feet from any property boundary line."
According to the 1987 resolution, the only variance relief requested and granted at that time was a one-foot deviation from the ten-foot setback for pools. The 1987 resolution does not include a reference to the pool being in the front yard of the Grossmans' lot or to a deviation from any provision of the zoning law then in effect prohibiting a pool in a front yard.
As noted at the outset of this opinion, the Grossmans sought relief from Section 190-119(C)(1)(c) of the current Ridgewood Code. With respect to "[a]ccessory structures in residential zones" it states:
No accessory building shall be permitted in any front yard. Swimming pools, tennis courts, decks, patios, and similar play structures shall be prohibited in any front yard; provided, however, that basketball equipment which utilizes a permitted driveway on the lot as the play surface is exempt from this prohibition.
Section 190-124(G) of the Ridgewood Code also addresses "[r]ecreational facilities for residential uses." ...