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Jesse Rosenblum v. Zoning Board of Adjustment of the Borough of Closter and James V.

January 7, 2013

JESSE ROSENBLUM, PLAINTIFF-APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF CLOSTER AND JAMES V. CRIMMINS, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9476-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 8, 2012

Before Judges Fuentes, Graves and J.N. Harris.

Plaintiff Jesse Rosenblum appeals pro se from a June 8, 2011 Law Division judgment affirming a decision by defendant Zoning Board of Adjustment of the Borough of Closter (the Board). The Board granted several variances to defendant James Crimmins (Crimmins), including a use variance to store commercial vehicles and material for his landscape and construction business on an undersized lot in a residential zone. For the reasons that follow, we reverse.

In 1997, Crimmins purchased lot 5 in block 1203, commonly known as 49 John Street (the property), in a residentially zoned district in Closter. Crimmins testified that when he purchased the property it contained a single-family dwelling and an "area for the outdoor storage of contractor's equipment." Following the purchase, Crimmins continued to maintain the residence and to use the outdoor storage area in connection with his business.

The property is located in Zoning District No. 2, Residence Area B, and is bordered by John Street on the south and Westminster Avenue, a paper street, on the north. The surrounding neighborhood contains residential, commercial, and industrial zones. While the lots located on the northern side of John Street are in a residential zone, the lots on the southern side of the street across from the property are commercially zoned. Westminster Avenue, which runs parallel to John Street, separates the residential properties from an industrial zone located on the northern side of Westminster Avenue. As a result, several residential lots, including the property, are located between commercial and industrial zones.

According to Article VI of the Borough of Closter Land Development Ordinance § 200-9A, properties located in District No. 2, Residence Area B are limited to "any use permitted in Residence Area A," and "[s]ingle detached homes used for not more than two families per structure and a double house used as a two-family residence." Further, according to the limiting schedule, lots located in District No. 2, Residence Area B must be a minimum of 12,500 square feet, but the lot area of the property is only 9,068 square feet.

N.J.S.A. 40:55D-89 requires a periodic reexamination of a municipality's master plan and development regulations by the planning board. The most recent master plan of the Borough of Closter was adopted in 1981 (Master Plan), and subsequent reexaminations were adopted in 1996, 2002, and 2008. The 2008 Master Plan Reexamination, adopted March 4, 2009, considered the "condition of Closter's industrial areas, and their relationship with the adjoining residential areas," such as on John Street. The 2008 Reexamination recognized the "lack of buffers or transitional areas separating active industrial activities from abutting residential areas" and the "seeming lack of enforcement of current zoning regulations" and recommended a "more detailed study" to "secure a longer-term solution." In addition, it recommended that the Borough "[c]ontinue to prohibit (and strictly enforce) the overnight parking or storage of commercial vehicles on residential properties."

Crimmins' use of the residential property in connection with his business continued until the Borough issued a notice of violation stating that the use violated the zoning ordinance. Consequently, Crimmins submitted an application to the Board for a use variance pursuant to N.J.S.A. 40:55D-70(d) for "outdoor storage on the property."

In support of his variance application, Crimmins submitted a planning report prepared by Burgis Associates, Inc., which stated:

The continued use of the subject property in a manner consistent with the historical use that has occurred for an extended timeframe[,] and as recommended in the 2008 periodic reexamination report of the master plan[,] results in a seamless continuum of uses between the industrial style uses located east of the subject parcel and the uniformly single-family dwellings located to the west of the subject property.

Crimmins also included a site plan prepared by Stephen Eid, P.E. & L.S., of Eid Associates, Inc.

The application was heard by the Board at public meetings on May 19, 2010, and July 21, 2010. At the first meeting, Crimmins' attorney acknowledged that although the property had been used "for a contractor's yard with outdoor storage and a single-family home," Crimmins could not establish a "pre-existing nonconforming ...


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