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Jesse Rosenblum v. Zoning Board of Adjustment of the Borough of Closter and Robert Armaniaco

October 17, 2011

JESSE ROSENBLUM, PLAINTIFF-APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF CLOSTER AND ROBERT ARMANIACO,
DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3265-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 27, 2011

Before Judges Carchman, Fisher and Baxter.

Plaintiff Jesse Rosenblum appeals from a Law Division order affirming the grant of a use variance by the Borough of Closter Zoning Board of Adjustment (Board). The variance authorized the applicant, Robert Armaniaco, to utilize a portion of his property as a contractor's yard even though it was in a residential zone. We conclude the Law Division and the Board properly analyzed the governing statute, N.J.S.A. 40:55D-70(d), and that the Board's decision was neither arbitrary nor capricious. We affirm.

I.

In 1999, Armaniaco and his wife Michelle purchased a 20,000 square foot property located at 35 John Street in Closter, comprising lots 6 and 7 of block 1203 (the property). The property is located in a residential zone, district 2. John Street is a one-way street "sandwiched" between an industrial use district, district 5, and a commercial district, district 4. The property consists of a single-family dwelling on lot 7, where Armaniaco and his family reside, and a garage on lot 6, which is used for the storage of contractors' equipment and materials for his business, Armaniaco & Son, L.L.C., which performs excavation, landscaping, demolition and sewer work. The two lots were merged at some point prior to the Armaniacos' purchase of the property. At the time the Armaniacos agreed to purchase the property, lot 7 was being used for commercial purposes in connection with the then-owner's lawn mower and machine repair business.

In 2007, the Code Enforcement Officer of the Borough of Closter issued a summons charging Armaniaco with using the property for commercial purposes, namely, a "contractor's yard," in violation of the Borough's zoning ordinance, which limited the property to residential use. Upon Armaniaco's promise to seek a use variance, the summons was withdrawn.

On May 20, 2008, Armaniaco submitted an application for the use variance that is the subject of this appeal. He sought permission to operate a contractor's outdoor storage yard on a portion of his residential property, namely lot 6. The Board heard testimony on five occasions between September 2009 and February 2010. Armaniaco presented the testimony of Steve Lydon, a professional planner. Lydon opined that lot 6, on which Armaniaco sought to site his contractor's storage yard, is "problematic [for] . . . a single family home." He explained that lot 6 is a "through lot" running between John Street and Westminster Avenue, and is deemed to have "two front yards" and no rear yard. Under such circumstances, the zoning ordinance operates to prevent the homeowner from using the property in the way that a family might seek to use its rear yard, for a "deck, swimming pool or gazebo" because "those structures would be prohibited" on either of the two front yards.

Lydon also observed that at the point where lot 6 abuts lot 7, the property is burdened with two easements: a fifteen-foot wide sewer easement and a ten-foot wide storm water easement, both of which run the full length of the property from John Street through to Westminster Avenue, further limiting the use of lot 7 for residential purposes.

He also described Closter's 1981 master plan and the 1996, 2002 and 2008 reexaminations. The 2008 master plan noted the tension between the residential and industrial neighborhoods in Closter, and recommended that a 315-foot area on John Street be changed from a residential to an industrial classification because "[t]hese properties presently have the front and rear yard areas abutting industrial land uses. It would be inappropriate to continue a residential pattern in this environment." Despite the recommendation that the area in question be rezoned, it retained its residential classification. The Armaniacos' property lies within the 315 feet discussed in the 2008 master plan.

Lydon opined that granting the variance would be "appropriate" because the proposed use would not require a "modification of [the existing] uses or intensity of uses" and would "[p]rovide a suitable buffer" separating the nearby single family dwellings from the adjacent commercial zone in district 4 and the industrial zone in district 5. Granting the variance, according to Lydon, would support "appropriate population densities and concentrations [in Closter], that will contribute to the well-being of persons, neighbors, communities and regions and preservation[] of the environment." He opined that the requested use variance would be consistent with the master plan and its reexaminations because Armaniaco would be maintaining a single-family home, thereby buffering the property from the nearby industrial zone while allowing a limited commercial use to exist.

Armaniaco testified about his use of the property, beginning with his purchase of the land from Tony Pellegrin in 1999. According to Armaniaco, Pellegrin had difficulty selling the property because of its shape and its proximity to industrial and commercial zones. Armaniaco explained that although his business includes excavation, sewer work, landscaping and demolition, he does not manufacture, demolish or assemble any products on his property, and limits the use of his property to the storage of trucks, containers and equipment. He assured the Board that there are no odors emanating from the contractor's yard he was maintaining on lot 6, because he does not dispose of any organic materials or bring grass clippings or manure onto the property.

Armaniaco explained that although he has two employees, he is the only person who drives the larger trucks because neither of his employees has a commercial driver's license. As he is a full-time employee of the Borough of Tenafly, he operates Armaniaco & Son, L.L.C., as only a "part-time" operation. In the morning, his wife typically ...


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