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Rosenblum v. Zoning Board of Adjustment of Borough of Closter

Superior Court of New Jersey, Appellate Division

October 17, 2013

JESSE ROSENBLUM, Plaintiff-Appellant,
v.
ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF CLOSTER and STEVEN PANAGI, Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 13, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6845-11.

Jesse Rosenblum, appellant pro se.

Kates, Nussman, Rapone, Ellis & Farhi, LLP, attorneys for respondent Zoning Board of Adjustment of the Borough of Closter (Michael B. Kates, of counsel and on the brief).

Donna J. Vellekamp, attorney for respondent Steven Panagi, joins in the brief of respondent Zoning Board of Adjustment of the Borough of Closter.

Before Judges Lihotz and Guadagno.

PER CURIAM.

Plaintiff Jesse Rosenblum, a resident of the Borough of Closter (Borough), appeals from an order dismissing his action in lieu of prerogative writs, in which he challenged the final determination of defendant Zoning Board of Adjustment of the Borough of Closter (Board). We affirm.

The Board considered an August 4, 2010 application filed by Steven Panagi, requesting a use variance to authorize two independent residential living units in a single structure. The property, built as a single family home in 1924, was located in zoning district Residence Area B, which conditionally permitted two-family dwellings. Borough of Closter, N.J., Zoning Code § 200-9.

At some point Panagi's dwelling was converted to two separate residential units. The date of conversion was uncertain, however, Borough records confirmed since 1990 the property had continuously been assessed as a two-family dwelling unit. The two units were distinct with no internal connections, had separate kitchens and furnaces, and individually metered utilities. Panagi purchased the property in 2006, and was provided a certificate of occupancy for a two-dwelling structure, which he simply continued. When his tenants changed, he applied for a two-family use ratification. The Board denied his application. He learned this particular property had not been approved, nor did it qualify as a two-family dwelling because the structure and land did not comply with the bulk requirements for Residence Area B. Panagi was instructed to apply for a variance.

Despite its nonconformance to the conditions for structures in the zone regarding frontage, side-yard setback, and lot size, Panagi applied for use variances pursuant to N.J.S.A. 40D:55-70d(1), to sanction the dwelling's use as a two-family residence.[1] The Board held public hearings over two days. Panagi testified he personally owns the home, but uses it as an investment property. He described the neighborhood as fully developed, which included a variety of mixed uses among neighboring properties, such as two-family dwellings, commercial properties, and single family homes.

Panagi also presented testimony from his professional planer Steven M. Lydon, P.P., of Burgis Associates, Inc., who addressed the positive and negative aspects of the requested variance. Lydon noted the property was located in a split zone, which allowed residential and commercial use. The proposed application was well suited for the proposed use, despite that it was undersized and the setbacks were nonconforming for a two-dwelling residence.

Additionally, special reasons were present to allow the structure and grant the application. Lydon noted the lot was extremely narrow, which caused a substantial hardship in meeting the zone's bulk requirements. This hardship could not be overcome because all of the surrounding area was developed. Further, the proposed two-family use was permissible in the zone and did not conflict with the Borough's master plan; the application proposed no change to the structure that would intensify the use; and essentially bulk variances were necessary to allow this undersized structure to operate as a permitted two-family dwelling. Lydon further emphasized the residence's proximity to the downtown area, characterizing the neighborhood as "transition[al]" with multiple uses without a defined single-use character. He noted the "sister" property next door was a two-family dwelling. Addressing the negative criteria, Lydon asserted the structure had been used as a two-family dwelling for decades without any negative impact to the neighborhood or a substantial detriment to the ...


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