JOSEPH SIGISMONDI VS. CITY OF VENTOR PLANNING BOARD (L-2652-17, ATLANTIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 20, 2019
• Docket: A-2581-18T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2581-18T3

JOSEPH SIGISMONDI,

Plaintiff-Appellant,

v.

CITY OF VENTNOR PLANNING BOARD,

Defendant-Respondent. _____________________________

Argued December 11, 2019 – Decided December 20, 2019

Before Judges Haas and Enright.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2652-17.

Joseph Sigismondi, appellant, argued the cause pro se.

Elias T. Manos argued the cause for respondent.

PER CURIAM

Plaintiff Joseph Sigismondi appeals from an order which affirmed the

denial of variance relief by defendant City of Ventnor Planning Board (Board). We affirm, substantially for the reasons set forth in the comprehensive oral

opinion of Judge John C. Porto on January 4, 2019.

Plaintiff owns a single-family home in Ventnor City. As the owner of the

property, he constructed a deck on the side and front of his home without

obtaining any permits. The deck was built with a zero-foot side yard setback

directly against the garage on the neighboring property. It also extended across

the front property line into Ventnor City's right-of-way by 2.66 feet and had a

rear yard setback of .23 feet. 1 The deck was about fourteen inches high.

In June 2017, plaintiff filed an application with the Board seeking

variances for the deck. The Board denied his application on November 9, 2017.

As the Board noted in its resolution, the zoning ordinance requires a front yard

setback of seven feet, and a side yard setback of four feet, yet plaintiff sought

setbacks of "zero and zero," respectively. Plaintiff also requested a rear yard

setback of .23 feet, notwithstanding the zoning ordinance requirement that there

be a rear yard setback of six feet.

Plaintiff filed a complaint in lieu of prerogative writs, seeking a reversal

of the Board's decision. Judge Porto upheld the Board's denial of the variances.

1 Plaintiff's counsel represented to Judge Porto that at the time of the Board hearing, plaintiff had agreed to remove the area of the deck involving the right- of-way. A-2581-18T3 2 As the judge noted in his oral opinion, the Board found the relief sought by

plaintiff did not advance any of the purposes of the zoning set forth in N.J.S.A.

40:55D-2 and there was no benefit to granting the relief. Judge Porto also

upheld the Board's determination that granting the requested variance relief

would cause a substantial detriment to the public good and would impair the

intent and purpose of the zone plan and zoning ordinance. Additionally, the

judge affirmed the Board's finding that plaintiff's deck would "impede

circulation" around the property, that it would present property maintenance

issues to the neighboring owner, and provide no benefit other than to the

plaintiff. Lastly, the judge noted plaintiff had not pursued a variance based on

hardship.

We review a zoning board's decision using the same standard as the trial

court, Cohen v. Bd. of Adjustment of the Borough of Rumson, 396 N.J. Super.

608, 614-15 (App. Div. 2007), and, like the trial court, our review is limited.

Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J.

309, 327 (1998). We give deference to a zoning board's decision and will only

reverse if the decision was arbitrary, capricious or unreasonable. Kane

Properties, LLC v. City of Hoboken, 214 N.J. 199, 229 (2013). However, where

the issue on appeal involves a purely legal question, we afford no special

A-2581-18T3 3 deference to the trial court's or the zoning board's decision. D. Lobi Enters.,

Inc. v. Planning/Zoning Bd. of the Borough of Sea Bright, 408 N.J. Super. 345,

351-52 (App. Div. 2009). Still, we may not substitute our judgment for that of

the municipal body. Kramer v. Bd. of Adjustment, 45 N.J. 268, 296-97 (1965).

As Justice Long emphasized in Jock v. Zoning Bd. of Adjustment:

In the final analysis . . . public bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion. The proper scope of judicial review is not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record.

[184 N.J. 562, 597 (2004) (citations omitted).]

"A court should sustain a local zoning board's determination to grant a

zoning variance if that board's decision comports with the statutory criteria and

is founded on adequate evidence [in the record.]" Burbridge v. Mine Hill, 117

N.J. 376 (1990). Yet, we give even greater deference to a planning board's

decision to deny a variance. Nextel of New York, Inc. v. Borough of Englewood

Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 38 (App. Div. 2003) (citing

Northeast Towers, Inc. v. Zoning Bd. of Adjustment for W. Paterson, 327 N.J.

Super. 476, 494 (App. Div. 2000)); Med. Ctr. at Princeton v. Twp. of Princeton

Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001). A person

A-2581-18T3 4 challenging a denied variance has a "heavier burden . . . to prove that the

evidence before the board was 'overwhelmingly in favor of the applicant.'"

Nextel of New York, Inc., 361 N.J. Super. at 38 (quoting Northeast Towers, 327

N.J. Super. at 494).

Guided by these principles, we discern no reason to disturb the decisions

of the trial court or the Board, and affirm substantially for the reasons expressed

in Judge Porto's cogent oral opinion.

Plaintiff's remaining arguments lack sufficient merit to warrant further

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-2581-18T3 5