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O'Brien v. Borough of Point Pleasant Zoning Board of Adjustment

August 6, 2010

MATTHEW O'BRIEN AND CATHERINE O'BRIEN, PLAINTIFFS-APPELLANTS,
v.
BOROUGH OF POINT PLEASANT ZONING BOARD OF ADJUSTMENT, JAMES ROLLANO AND EDWARD REILLY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-364-09PW.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 20, 2010

Before Judges Skillman, Fuentes and Gilroy.

This is an appeal from a final judgment of the Law Division, which affirmed a resolution of defendant Borough of Point Pleasant Zoning Board of Adjustment (Board) granting an application by defendants James Rollano and Edward Reilly (hereinafter sometimes referred to as the applicants) for a minor subdivision approval and associated use and bulk variances.

The property for which the approval was granted is a 35,291 square foot lot. The lot is "T"-shaped, with an approximately seventy-foot wide vertical stem fronting on Burnt Tavern Road. The main part of the lot at the top of the T is approximately 230 feet wide. The vertical stem consists of 7,996 square feet, and the remaining 27,295 square feet are located in the main part of the lot.

There are currently two duplex housing units and a parking area in the main part of the lot and a driveway from the parking area to Burnt Tavern Road on the vertical stem. This residential development was constructed in the 1970s in accordance with an approval granted by the Board in 1972. At that time, duplexes were an approved use in the zoning district. Therefore, no use variance was required. However, certain bulk variances were required.

Duplexes are no longer a permitted use in the zoning district. Consequently, the two duplexes located on the lot are a nonconforming use.

The applicants proposed to subdivide the lot into two lots, one consisting of the main part in which the two duplexes are located and the other consisting of the vertical stem. Under this proposal, the applicants would continue operation of the main part of the lot as a rental property with the two duplexes remaining in their current locations. The applicants proposed to develop the vertical stem by construction of a new single family house and a new, wider driveway that would provide access to both the new house and the duplexes.

A use variance was required for this proposed development because under our decision in Razberry's, Inc. v. Kingwood Township Planning Board, 250 N.J. Super. 324, 326 (App. Div. 1991), "a use variance is required to continue a nonconforming use when the size of the property containing the use is reduced by a subdivision[,]" and the subdivision of the single lot on which the nonconforming duplexes are located into two lots would result in a reduction of the size of the lot containing the duplexes. The development proposal also required a number of bulk variances for both the existing duplexes and the proposed new single family house.

The Board conducted a one-day hearing on this development proposal. Rollano testified that he and Reilly proposed to make certain improvements in the siding and gutters on the duplexes, which are currently in a deteriorated condition. He also said that they were in the process of making various renovations in the interiors of the duplexes, including new heating and air conditioning systems. Rollano did not indicate that the completion of these improvements and renovations is contingent upon approval of the proposed subdivision and construction of the new single family house.

Robert Burdick, a professional engineer retained by the applicants in connection with the development proposal, testified that the development would result in "an updated, more attractive site" and that "an increase in safety for the four duplex units will be provided by the increased driveway width."

Plaintiff Matthew O'Brien, who lives next door to the vertical stem of the lot, testified that construction of the proposed new residence and expanded driveway would require the removal of two 250-foot oak trees.

In approving the application for the minor subdivision and associated use and bulk variances, the Board found that "failure to grant the relief requested [would] result in undue hardship to the applicants[.]" The Board also found that the proposed development would "contribute to the desirable visual environment and promote aesthetics as the structures are to be maintained and updated." The Board conditioned its approval upon Rollano and Reilly ...


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