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Dyanna C. Pepitone and Douglas Parker v. the Zoning Board of Adjustment of the Town of Westfield

October 12, 2012

DYANNA C. PEPITONE AND DOUGLAS PARKER, PLAINTIFFS-APPELLANTS,
v.
THE ZONING BOARD OF ADJUSTMENT OF THE TOWN OF WESTFIELD, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1427-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 27, 2012

Before Judges Simonelli, Koblitz and Accurso.

Plaintiffs Dyanna Pepitone and Douglas Parker (collectively plaintiffs) appeal from the September 27, 2011 Law Division order, which granted summary judgment to defendant Zoning Board of Adjustment of the Town of Westfield (Board), and dismissed the complaint in lieu of prerogative writs with prejudice. We affirm.

Plaintiffs own property in Westfield located in the RS-12 single-family residence zone. There is a one-car detached garage on the property. Plaintiffs' property became non-conforming in 2009 with the passage of an amendment to Westfield's Land Use Ordinance Article 11, §11.06E.14, which requires that "[e]ach dwelling [in the RS-12 zone] shall have at a minimum a 2-car garage." Ordinance Article 19, §19.02, the so-called "grandfather provision," provides that "[a]ny non-conforming use, building or structure which lawfully existed at the time of the passage of this ordinance may be continued and any such existing non-conforming building or structure may be reconstructed or structurally altered provided it shall meet the requirements of this article." Thus, property with one-car garages could continue the non-conformity. However, Article 19, §19.03A provides that "[a]ny building, structure or use of land which is non-conforming because of use shall not be enlarged, extended or changed to another non-conforming use in any manner whatsoever." Article 19, §19.03B provides that

There shall be no structural alterations made to any non-conforming building or structure that is non-conforming because of use. Structural alterations may be made in a building or structure which is non-conforming because it fails to comply with height, area, yard, off-street parking or other like requirements of this ordinance, so long as the structural alteration does not extend or enlarge the non-conformance.

Thus, property owners seeking to enlarge, extend or change their property to another non-conforming use, or make structural alterations to any non-conforming building or structure must comply with §11.06E.14.

Plaintiffs sought to construct an addition to their home without also constructing a two-car garage. The town planner advised plaintiffs that because their property was non-conforming under §11.06E.14, they may either construct a two-car garage or seek variance relief. The zoning officer then issued a violation notice, advising that the property was non-conforming, the proposed construction violated §11.06E.14 and must cease, and plaintiffs may apply to the Board for variance relief.

Plaintiffs filed an Article 7, §7.02B appeal with the Board, seeking a determination that the zoning officer's decision was wrong. Plaintiffs argued, in part, that the zoning officer failed to consider that §19.02 granted a continuance for their one-car garage. In the alternative, plaintiffs applied for a "C" variance pursuant to Article 7, §7.01C.

There were extensive discussions about the zoning officer's decision at the January 10, 2011 Board meeting, which plaintiffs attended. The town planner explained the zoning officer's decision as follows:

[T]he zoning officer interprets [§11.06E.14] to state that a property must have a two-car garage in the RS-12 zone. This property does not have a two-car garage. The application for an addition to this property is expanding the building envelope. It's expanding the lot coverage wherein the property is deficient because it only has a one-car garage.

So the issue of [§19.03B] states . . . there shall be no structural . . . alterations made to any non-conforming building or structure that is non-conforming because of use. It goes on to say structural alterations may be made in a building or structure which is non-conforming because it fails to comply with height, area, yard, off-street parking, or other like requirements of this ordinance, so long as the structural alteration does not extend or enlarge the non-conformance.

By increasing the building envelope or the building footprint, you're taking away land or you are consuming land under lot coverage criteria and therefore, it affects the ability to provide for a two-car garage. Now, in this case it's not ...


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