Kelly v. Zoning Board of Adjustment of Tinton Falls

A-1347-98T1 (N.J. Super. App. Div. 1999) (Unpublished)
  • Opinion Date: June 25, 1999

ZONING; FRONT YARDS—If a municipality wants to provide that corner lots have two yards, its zoning ordinance should expressly say so.

The issue presented by this appeal was whether a municipal zoning board correctly interpreted a municipal zoning ordinance to provide that homes constructed on corner lots have two front yards. The ordinance in question prohibited the construction of a fence in a front yard, but the owner of a corner lot constructed a fence along one of the two streets that bordered its property. The board’s interpretation rendered the fence construction illegal. In testimony before the board, the homeowner presented an engineer and a planner, each of whom took the position that the ordinance was vague because it nowhere stated that a corner lot has two front yards. Thus, they reasoned, the front yard should be defined as the area between the house and the street which the front of the house faces. One expert asserted that because the ordinance specifically states that in the case of corner lots either side may be considered the lot frontage, it felt that either side could be the front yard. In holding otherwise, the board pointed to a portion of the ordinance which stated that in the case of a corner lot, “either side may be considered the ‘lot frontage,’ but the front yard setback shall be met from all streets.” The lower court found the ordinance clear and held that it contemplated that corner lots have two front yards. The Appellate Division, however, agreed with the homeowner that the board erred in interpreting the ordinance and reversed. It began by noting that the ordinance nowhere expressly stated that corner lots have two front yards. It held that the board and the lower court failed to distinguish between (a) the ordinance provision requiring front yard setbacks to be followed along two sides from (b) failure of the ordinance to expressly provide for two front yards. In reaching this conclusion, it pointed to a section of the ordinance that referred to “the” required front yard. To the Appellate Division, use of the word “the” clearly evidenced an intention that a corner lot, like all others, has but one front yard. In essence, if the municipality wanted to provide that corner lots have two front yards, it should have clearly said so in its ordinance.