On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1246-09PW.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodriguez and LeWinn.
The Zoning Board of Adjustment of the Township of Middletown (Board) appeals from the judgment in favor of Joseph DeVito, setting aside the Board's denial of DeVito's application for a variance. We reverse.
DeVito is the owner of a single-family dwelling in Middletown. The property is triangular in shape and about one hundred feet by sixty feet, fronting on both Oregon and Jersey Avenues. The house is only five feet from each property line. The property is in the R-7 residential zone. However, the opposite side of Jersey Avenue is in the commercial B-2 zone.
Without seeking any approval, DeVito removed an existing dilapidated six-foot stockade fence and replaced it with a new six-foot, opaque white vinyl fence, which runs approximately ninety feet along Oregon Avenue and sixty feet along Jersey Avenue. Low-hanging utility wires make it impractical to use trees for screening.
Middletown Ordinance § 16 6.16(A)(1), states: "Fences, which are not open fences as defined in this Chapter, located in a required front, street side or street rear yard, shall not exceed thirty-six [36"] inches in height." Ibid. Therefore, DeVito's new fence was no longer an existing non-conforming use nor in compliance with the ordinance.
DeVito filed pro se an application with the Board, which held a hearing. DeVito testified at the hearing that the size and shape of his lot did not allow for screen plantings. His neighbors had complained about the old fence and asked him to replace it. In support of his application, DeVito submitted exhibits, including photographs of: the old stockade fence; the new fence; existing fences on his neighbors properties; and a survey of his lot.
DeVito noted that the front side of the house on Jersey Avenue is not conducive to planting trees due to low hanging power lines near the property. He also pointed out similar six-foot white vinyl fences on his neighbors' properties, and noted the prevalence of these types of fences in his neighborhood. He asserted that modifying the new fence to comply with the zoning ordinance and planting shrubs to accomplish the goal of screening the yard would cost him approximately $15,000. He also asserted that without the fence, his property would probably depreciate by $50,000.
Christie Hartford, apparently a resident of DeVito's household, testified that the fence has helped to alleviate security concerns. She had seen "kids jumping up trying to look into the yard" and "hanging out" near the fence.
The Board denied the application and issued a memorializing resolution, which found in pertinent part:
The purpose of [Ordinance § 16 6.16(A)(1)] is to eliminate fences that are over three
(3) feet and solid from being installed on street frontage. The intent of this ordinance is to eliminate the 'Tunneling' effect caused by fences along street frontage. The ordinance was adopted to prohibit the negative visual effect of fences along street frontage because they make the ...