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

July 16, 2012

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



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2128-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: December 21, 2011

Before Judges Cuff and St. John.

The issue in this appeal is whether the Zoning Board of Adjustment of the Township of Lacey (Board) should have granted a variance to construct a single-family house on an undersized lot. The Board denied the variance; the Law Division judge reversed and ordered the Board to approve the development application in accordance with the plans submitted to it by the applicant. We affirm.

Plaintiff Jeffrey R. Jerman is the owner of property located on Newark Avenue in the Township of Lacey, Ocean County. The property is described as Block 1852, Lots 24 and 25. The property is located in the R-80 Residential Zone, which requires a minimum lot area of 8,000 square feet and a minimum width of 80 feet for construction of a single-family home. Plaintiff's property contains 4,000 square feet and a minimum lot width of 40 feet. Plaintiff acquired the lots through a final tax foreclosure judgment. Neither he nor any former owner ever owned adjacent property. The property and most of the surrounding area is unimproved vacant wooded land, although Newark Avenue is paved. In fact, the single-family home proposed by plaintiff would be one of the first, if not the first, homes constructed on Block 1852. The record suggests plaintiff's property may not be the only undersized lot in Block 1852. The record also suggests most lots conform to the zoning.

Plaintiff proposed construction of a 24' x 50' two-story frame dwelling, including an attached one-car garage, crawl space, front porch, and front and rear steps. The plan indicates a proposed roof drainage system and a proposed driveway, depressed curb, and concrete driveway apron to serve the lot.

The proposed gross first floor living area is shown as 1,650 square feet (the minimum allowable is 864 square feet). The proposed principal building lot coverage is shown as 27.5% (the maximum allowable coverage by a principal building is 35%).

The plan does not show existing water and sewer mains located in Newark Avenue.

Proposed lateral connections are shown.

Plaintiff applied for two bulk variances, pursuant to N.J.S.A. 40:55D-70c(1), to build the house on his property. Plaintiff testified at the February 1, 2010 hearing about his efforts to acquire adjacent property to cure the undersized nature of his property.

He explained there were four adjoining parcels including one to the north, one to the south, and two to the east along the rear of the subject property. He contacted 29 Properties, LLC, the owner of rear adjoining parcels 16 through 19. 29 Properties offered to purchase plaintiff's property for $14,000, but was not interested in selling its own lots. Joseph Dellechiaie, the owner of rear adjoining parcels 30 and 31, was interested in selling his property to plaintiff. Those parcels would only add to the depth but not the width of plaintiff's property, and would not avoid the need for a variance.

On January 7, 2010, plaintiff sent a "buy-sell letter" to James Dallmeyer, owner of nonconforming Lots 20 through 23 adjacent to the north of the subject property.*fn1 Plaintiff testified he never received a response regarding these lots. Dallmeyer also owned two lots (Lots 26 and 27) adjacent to the south of the subject property. Dallmeyer offered to sell Lots 26 and 27 to plaintiff for $50,000.*fn2

Plaintiff explained he called Dallmeyer after receiving his offer. Because of prior experience with similar parcels in the area, plaintiff believed the subject property was worth $85,000, if he obtained a variance. He objected to the $50,000 offer, and suggested Dallmeyer obtain an appraisal of his parcels to support his offer, an idea Dallmeyer rejected. On February 1, 2010, Dallmeyer offered $20,000 to purchase the subject property explaining he believed an appraisal would only be in the range of $10,000.

In light of plaintiff's testimony regarding the buy-sell negotiations with Dallmeyer, the Board sought to continue the hearing to give Dallmeyer an opportunity to participate and testify. Plaintiff requested, if there was an adjournment, that the Board require plaintiff and Dallmeyer to obtain appraisals for Dallmeyer's lots (Lots 26 and 27). The Board refused to require Dallmeyer to obtain an appraisal, noting it would be at his own peril if he failed to substantiate his position and adjourned the hearing.

On February 9, 2010, the Board sent Dallmeyer a letter notifying him of the upcoming April hearing and suggesting he should "attend . . . with an appraiser and appraisal report" to justify his offer of $20,000 for the subject property.

On April 5, 2010, the hearing continued. Plaintiff introduced an appraisal by Eric Birchler of the subject property of $85,000, and an appraisal of Dallmeyer's southern parcels of $15,000. Noting the two parcels were identical nonconforming parcels, plaintiff explained the discrepancy in appraised value resulted from the valuation method utilized: the subject property was "valued as if a variance [were] granted" while Dallmeyer's property was valued "under the assumption that that lot is to ...


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