ALFONSO DIASPARRA and SANDRA DIASPARRA, his wife, Plaintiffs-Respondents,
PLANNING BOARD OF THE BOROUGH OF TENAFLY, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued July 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1452-12.
Jeffrey A. Zenn argued the cause for appellant (Sokol, Behot & Fiorenzo, attorneys; Mr. Zenn, on the briefs).
Elliot W. Urdang argued the cause for respondents.
Before Judges Ostrer and Hayden.
The Borough of Tenafly Planning Board (Board) appeals from the trial court's order reversing its decision denying approval of the application of plaintiffs Alfonso and Sandra Diasparra for a two-lot subdivision and related variance under N.J.S.A. 40:55D-70c(2) from the zoning ordinance's minimum lot width requirement.
The Board argues the trial court erred by failing to defer to its finding that plaintiffs did not satisfy the criteria for the variance. In particular, the Board argues the court erred in concluding that there was a pre-existing and non-abandoned, non-conforming use of the existing home as a two-family structure. The court found that removal of the non-conformity satisfied the positive criteria required for approval of the variance, that is, it furthered the purposes of the zoning law. See Kaufmann v. Planning Bd. of Warren, 110 N.J. 551, 563 (1988).
Having considered the Board's arguments in light of the record and applicable legal principles, we reverse.
We discern the following from the record. Plaintiffs own real property known as 143 Magnolia Avenue in Tenafly. Situated on the left or southerly half of the property is a small two-story, single-family, four-bedroom house, with roughly 1600 square feet of living space, excluding the basement. To the right of the house, roughly in the center of the property, is a one-and-a-half story detached garage, 600 square feet, with a one-bedroom apartment above the garage-level. Both structures were over eighty-seven years old. Plaintiffs' lot is oversized and significantly larger than those nearby. It is 19, 419 square feet in a residential zone with a 9000 square foot minimum. It significantly over-complied with various zoning standards related to the intensity of use of the property.
Plaintiffs proposed to subdivide the property into two lots of roughly equal size; renovate the existing house; raze the existing garage with the apartment; build a second single-family home on the new northerly lot; and build a new detached garage without an apartment, to the left of the existing house, along the southerly property line. In so doing, plaintiffs argued they would remove a non-conforming use. They alleged the house previously had been used as a two-family home. Although it was currently rented as a single-family dwelling under a two-year lease, they asserted the non-conforming use was not abandoned. The elimination of the residence above the garage would also eliminate a non-conforming use.
Plaintiffs' plan would deviate only from minimum lot width requirements, for which plaintiffs required a variance. The minimum width required at the setback was seventy-five feet. The plan provided for widths of sixty-six feet, and sixty-one feet at the setback for the northerly and southerly lots, respectively. (The proposed widths at the street were roughly the same, amply complying with the fifty-foot requirement.) In all other respects, the proposed residences complied, and, particularly in the case of the existing house, significantly over-complied with the ordinance. For example, the proposed northerly lot would have a sixty-five-foot-deep rear yard, and the southerly lot with the existing house would have an eighty-foot-deep rear yard, compared with a thirty-foot requirement. Compared to the maximum allowed Floor Area Ratio (F.A.R.) of 37.5 percent, the southerly house would have a 24.57 percent F.A.R., and the newly constructed house would have 35.42 percent F.A.R.
Plaintiffs argued the proposed configuration would not conflict with the existing neighborhood. Eleven of the sixteen homes on the same block of Magnolia Avenue, between Prospect Terrace and Hudson Avenue, had lot widths of fifty-one feet both at the street and setback. Plaintiffs argued that their proposal was also more beneficial, and consistent with the neighborhood, than an alternative available to plaintiffs as of right: to raze all the structures and construct a large so-called "McMansion, " that would dwarf nearby homes.
The Board, in a four-to-four vote, denied plaintiffs' application. The Board found that plaintiffs had failed to prove that the non-conforming use was legal — that is, the use preceded the adoption of the ordinance that barred it. The Board also found that plaintiffs had failed to show the non-conforming use was not abandoned ...