Skip to main content



Berardo v. Planning Board of the Borough of Little Ferry

A-852-97T2 (N.J. Super. App. Div. 1998) (Unpublished)

ZONING; SUBDIVISIONS; DEFINITIONS—An attached chimney, though within the definition of a structure, is also a “projection,” and if a municipal ordinance permits projections into side yards, the side yard width is not reduced by the presence of such a chimney.

An owner of a double sized lot sought to subdivide it into two lots, one with an existing house and the other as a new, improvable lot. Under the municipality’s ordinance and consistent with the principles of land-use planning law, a property owner has a right to a two-lot subdivision provided that each of the two resulting lots fully complies with all applicable bulk limitations and other land-use regulations. There was no question that the “new” lot would be fully conforming. The only question was whether the “old” lot would also be fully conforming. The planning board argued that the extension of an existing chimney into the new side yard that would be created by the new lot line would render the side yard non-conforming. The question presented, therefore, was whether the chimney extension into the side yard was a permissible projection since, if it was, the side-yard proposed for the “old” lot would conform to the zoning ordinance, and the property owner would be entitled to its subdivision. The municipality’s ordinance allowed projections of less than 24 inches without impacting the full width of a side yard. The ordinance, however, did not define “projection.” Applying general land-use precepts and looking at the common usage of the English language, the Appellate Division found that an exterior chimney is a “projection.” In addition, the Appellate Division rejected the lower court’s premise that a “structure” and a “projection” are mutually exclusive concepts. In the view of the Appellate Division, the definition of a structure is so broad as to exclude nothing, including every possible “projection.” Therefore, to give meaning to the municipality’s ordinance as a whole, the Court concluded that some parts of a structure may be projections. To define “projection,” the Court looked at the dictionary and found its meaning to be “a part that projects or juts out: an extension beyond something else.” When it looked at the BOCA code incorporated into the state Uniform Construction Code Act, it found chimneys on a list of examples of permissible projections. Here, where the municipality’s ordinance permitted a side-yard projection of not more than two feet, the Court was persuaded that the only rational and sensible interpretation of the ordinance is to classify a chimney as a permissible exception. Consequently, the property owner was entitled to subdivision approval.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com