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Jeffrey R. Jerman v. Zoning Board of Adjustment of the Township of Berkeley

January 20, 2011

JEFFREY R. JERMAN, PLAINTIFF-RESPONDENT,
v.
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF BERKELEY, DEFENDANT-APPELLANT, AND THE TOWNSHIP OF BERKELEY, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3344-09PW.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 14, 2010

Before Judges Yannotti and Skillman.

The Zoning Board of Adjustment (Board) of the Township of Berkeley (Township) appeals from an order entered by the Law Division on March 31, 2010, which reversed the Board's denial of an application by plaintiff Jeffrey R. Jerman for certain variances required to construct a single-family residence on an undersized and unimproved lot in the Township. We affirm.

Plaintiff is the owner of certain property in the Township, known as Lot 13, Block 565. The property is in the Township's R-125 zone. The Township's zoning ordinance requires, among other things, that a single-family dwelling in the R-125 zone have an area of 12,500 square feet and frontage of 100 feet. Plaintiff's property has an area of 9000 square feet and frontage of fifty feet. Previously, plaintiff had applied to the Board for variances and design waivers required to construct a single-family house that was thirty-feet wide and two stories tall. The Board denied the application, and the trial court upheld its decision.

Thereafter, plaintiff submitted an application to the Board for variances required to construct a smaller structure on the site. On July 22, 2009, the Board conducted a public hearing on the application. At the hearing, plaintiff testified that he sent letters to the adjoining property owners seeking to purchase their lands or to sell his lot to them in order to make the property conform to the Township's zoning requirements.

Plaintiff said that one adjacent property owner did not reply. Another refused to sell a portion of his lot but offered to sell his entire lot to plaintiff for $130,000. The other adjacent property owner, Mitchell Horowitz (Horowitz), offered to purchase plaintiff's property for $5000.

Plaintiff said that he had informed Horowitz about the procedure they would follow if he wished to purchase his property. Plaintiff told Horowitz that they both would obtain appraisals of the value of the lot, but the property must be appraised as if the Board had granted the variances he requested.

Plaintiff asked the Board to admit an appraisal he had previously obtained for the property. However, the Board refused to do so without testimony from the appraiser.

Plaintiff also presented testimony from Jeffrey Daum (Daum), a professional engineer and planner, who explained that the plans for the house had been revised from those previously considered by the Board. The house had been reduced in size to twenty-four feet in width. The building was two stories, which Daum said was in keeping with the character of the neighborhood. Daum asserted that, without the variances requested for lot size and frontage, the property "would be zoned into inutility."

Daum stated that there were other undersized lots in the area, including lots that are fifty foot by 100 feet or smaller.

Daum additionally stated that the proposed structure met all of the Township's zoning requirements for side yard and front yard setbacks. He said that the house "fits in with the neighborhood," and would be consistent with the intent of the Township's zoning plan. Daum added that there would be no detriment to the public good in the event the house was constructed as planned.

Horowitz appeared at the hearing and voiced his opposition to plaintiff's application. Horowitz stated that the Board should not grant the variances because they would "substantially impair the intent and purpose" of the Township's zone plan and ordinance. Horowitz asserted that plaintiff's new application was ...


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