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Rodsan v. Board of Adjustment of Borough of Tenafly

July 12, 2010

PETER RODSAN, MARTA GENA RODSAN AND JACOB RODSAN, PLAINTIFFS-APPELLANTS,
v.
BOARD OF ADJUSTMENT OF BOROUGH OF TENAFLY, DEFENDANT-RESPONDENT, AND BOROUGH OF TENAFLY AND FRANK J. MOTTOLA, JR., DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9327-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 4, 2010

Before Judges Carchman and Lihotz.

Plaintiffs Peter, Marta and Jacob Rodsan appeal from a October 7, 2009 judgment of the Law Division, affirming the decision of defendant Borough of Tenafly (Tenafly) Board of Adjustment (Board). Plaintiffs sought relief from the Board to permit them to utilize a garage as an accessory structure, including a cabana and other related uses. The Board denied the relief. Judge Conte, in the Law Division, concluded that the Board's action was neither arbitrary, capricious or unreasonable and affirmed the denial of the application. We affirm.

These are the facts adduced from the record. Plaintiffs reside in Tenafly. Plaintiffs Peter and Marta's son, Jacob, suffers from multiple medical conditions and disabilities, rending him severely disabled. To accommodate their son, in 2007, plaintiffs applied to the board for variance approval to modify their home, including constructing a third-story on their home and an elevator. The application was approved in March 2008.

Shortly thereafter, it came to the attention of the zoning official, Frank J. Mottola, that plaintiffs were in noncompliance with the Tenafly zoning ordinance, because a garage, a detached accessory structure, was being used for residential purposes. According to Mottola, the garage had been converted without necessary variances and permits.

Section 35-802.9 of the Tenafly Zoning Ordinance (ordinance), regarding Accessory Buildings and Uses, provides in pertinent part: "i. Garages Appurtenant to Residential Use. A garage to accommodate at least one (1) automobile shall be provided for each dwelling unit in a single-family or two-family detached dwelling." "Accessory building or structure" is defined under the ordinance, Section 35-201, as "a building or structure the use of which is incidental to that of the main building and which is located on the same lot."

Furthermore, Section 35-804.4(a)(2) of the ordinance, regarding Location and Improvement of Required Parking and Loading Facilities, provides: "Required off-street parking facilities shall not be located in any front yard, except that in residence districts, the off-street parking space required for single- and two-family dwellings may be located in a private driveway or accessory garage."

Plaintiffs filed a May 19, 2008 application with the Board seeking reversal of the zoning official's decision or, alternatively, seeking a variance "so that the garage's current interior status may be maintained."

At the hearings on plaintiffs' application, plaintiff Peter Rodsan informed the Board that when he and his wife purchased the home in 1988, the accessory structure had been used as a workshop by the previous owner. According to plaintiffs, between 1993 and 1995, then town construction code official, Gene Bialkowski, gave tacit verbal approval for plaintiffs' proposed conversion of the accessory structure into a classroom for plaintiffs' children*fn1. In July 1995, however, plaintiffs requested permits to conduct repair work to that accessory structure and represented the accessory structure as a "garage." The only other permit of record for the garage was an application to upgrade the electrical work.

Beginning in 2004, the garage was used as a family entertainment room, and plaintiffs' disabled son also used the structure during this time to avoid dust, debris and bacteria spread throughout the house as a result of construction to their home. Apparently, plaintiffs' vehicles - a Ford Excursion, a Hummer and a "big van" - do not fit into the garage.

Plaintiffs continued to modify the garage structure without a permit or variance, adding sheetrock wall and ceiling, electricity, heat, air conditioning, a kitchenette area, a refrigerator, a television, a sofa, a sink and plumbing pipes,*fn2 as well as a living area with a sleeping loft and a bathroom. Plaintiffs also had installed a hot tub but removed it before the hearing. Plaintiffs now plan to use the garage "[j]ust like a cabana. You know, entertainment maybe . . . when guests come . . . to spend some time out there, whatever. But that's about it." Plaintiffs' expert architect witness characterized the garage as being a "finished space; [] not a garage."

Mottola inspected the structure for the first time on October 6, 2008, and he noted that the garage was modified to include a ...


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