Smith v. Fair Haven Zoning Bd. of Adjustment

761 A.2d 111, 335 N.J. Super. 111
CourtNew Jersey Superior Court Appellate Division
DecidedNovember 13, 2000
StatusPublished
Cited by17 cases

This text of 761 A.2d 111 (Smith v. Fair Haven Zoning Bd. of Adjustment) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Fair Haven Zoning Bd. of Adjustment, 761 A.2d 111, 335 N.J. Super. 111 (N.J. Ct. App. 2000).

Opinion

761 A.2d 111 (2000)
335 N.J. Super. 111

David SMITH, Kimberly Smith, Frank Cracolici, Jesse Y. Harris and Marcelene Harris, Plaintiffs-Appellants,
v.
The FAIR HAVEN ZONING BOARD OF ADJUSTMENT, John M. Ridgeway and Donna M. Ridgeway, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued October 18, 2000.
Decided November 13, 2000.

*113 Michele R. Donato argued the cause for appellants.

John G. Colannino, Monmouth Beach, argued the cause for respondent Fair Haven Zoning Board of Adjustment.

Ralph E. Polcari, Red Bank, argued the cause for respondents John M. Ridgeway and Donna M. Ridgeway (Drazin & Warshaw, attorneys; Mr. Polcari, on the joint brief).

Before Judges BAIME and WALLACE.

*112 The opinion of the court was delivered by BAIME, P.J.A.D.

Plaintiffs appeal from a judgment of the Law Division sustaining the grant of dimensional variances by the Fair Haven Zoning Board of Adjustment. They assert: (1) the Board lacked jurisdiction, (2) Board members engaged in impermissible ex parte communications during site visits, (3) the Board improperly limited the testimony of objectors, and (4) the grant of the bulk variances was arbitrary and capricious. We find no merit in plaintiffs' first three points. However, we remand the matter to the Board for reconsideration due to the inadequacy of the factual findings set forth in the resolution granting the variances.

I.

We need not recount the facts at length. In 1989, the predecessors in title of John and Donna Ridgeway applied to the Fair Haven Planning Board for a subdivision of their property. Lot 23 contained a house which did not conform to the front yard setback requirement of the applicable ordinance. The house had been built before the Civil War. Included in the subdivision application was a request to construct a two-story addition. The proposed addition did not increase any existing non-conformity because the front facade setback was *114 maintained. However, the then-existing garage was to be relocated to a conforming position. The Planning Board granted approval to the subdivision of the property and the proposed addition.

The Ridgeways purchased the property the following year, but they took no action to construct the proposed addition. The matter remained dormant until 1998, when the Ridgeways applied to the Zoning Board to construct a two-story addition to the house. The proposal differed from that previously approved by the Planning Board in various particulars. As we understand it, the Ridgeways' plan was to move the proposed addition from the rear to the front of the house, further encroaching on the front yard setback. Their application requested dimensional variances to: (1) reduce the required 100 foot minimum frontage to 99.54 feet, (2) reduce the required 100 foot minimum depth to 99 feet, (3) build on a lot fronting on a street that did not comport with Borough standards, and (4) enlarge the existing structure having a front yard setback of 12.3 feet where a minimum of 30 feet is required. We have no occasion to further characterize the bulk variances sought. It is fair to say, however, that although the proposed addition vastly expanded the living space allowed under the Planning Board's earlier approval of the subdivision, the new application reduced the front yard setback a mere foot.

We need not describe the heated arguments that ensued. The Zoning Board considered the application in the course of several meetings. Although the issue was hotly contested, the Ridgeways presented substantial evidence rebutting the claims of nearby property owners that the proposed addition was too large and was detrimental to the zone plan. Much of the Zoning Board's attention was focused on concerns that part of the property was occupied by a cemetery consisting of the graves of freed slaves. The evidence presented on this subject can fairly be characterized as equivocal. Apparently, the proceedings were widely reported in local newspapers.

In any event, the Zoning Board granted the dimensional variances requested by the Ridgeways. In its resolution, the Zoning Board cited the testimony of the Ridgeways' witnesses to the effect that the proposed construction would have less of an impact on neighboring properties than that approved by the Planning Board a decade before. The Zoning Board also addressed the specific claims of several of the objectors, finding that they lacked substance. Noting that "one of the objectives of zoning is to improve properties and provide additional space," the Zoning Board concluded that "the proposed construction would not be detrimental to adjacent properties." The Zoning Board conditioned its grant of the bulk variances on continuous monitoring of the construction by an archaeologist and municipal officials.

Plaintiffs brought an action in lieu of prerogative writs challenging the Zoning Board's decision. Among other arguments, they asserted that members of the Zoning Board had engaged in impermissible ex parte communications while visiting the site. The Law Division judge remanded the matter to the Zoning Board for supplementation of the record concerning visits to the site and any conversations between members and other individuals. After the record was supplemented, the judge found that none of the discussions between members and other individuals was improper or prejudicial to the rights of the applicants or the objectors. The judge also rejected plaintiffs' other claims. Specifically, the judge concluded that: (1) the Planning Board had relinquished jurisdiction after approving the subdivision a decade earlier, and, therefore, the Zoning Board had the authority to consider the Ridgeways' application for dimensional variances, (2) the Zoning Board conducted its meetings in an appropriate fashion, and (3) the grant of the variances was not arbitrary or capricious. This appeal followed.

*115 II.

We first consider plaintiffs' procedural arguments. These contentions lack merit.

A. JURISDICTION

We agree with Judge Lawson that jurisdiction was vested in the Zoning Board. Although the Planning Board originally had jurisdiction to grant dimensional variances when it considered and approved the subdivision proposed by the Ridgeways' predecessors in title, see N.J.S.A. 40:55D-60, that agency exercised its powers in 1989. It did not retain jurisdiction over subsequent applications for dimensional variances. It was not incumbent upon the Ridgeways to return to the Planning Board a decade after that agency relinquished jurisdiction.

N.J.S.A. 40:55D-37 reposes the subdivision approval power in the municipal planning board. That authority is not among the powers accorded by the statute to the board of adjustment. See N.J.S.A. 40:55D-70. N.J.S.A. 40:55D-70(c) expressly prohibits the board of adjustment from granting a variance where the proposed development requires planning board subdivision approval. These sections do not mean, however, that the planning board's power to consider dimensional variance requests in connection with subdivision approval is eternal. Once the planning board has exercised its authority and has relinquished jurisdiction, future variance applications may be made before the board of adjustment. See N.J.S.A. 40:55D-70(c)(1) and (2).

It is true that the Ridgeways' lot was initially created through a subdivision approved by the Planning Board in 1989.

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Bluebook (online)
761 A.2d 111, 335 N.J. Super. 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-fair-haven-zoning-bd-of-adjustment-njsuperctappdiv-2000.