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Rodsan v. Board of Adjustment of Borough of Tenafly

A-1041-09T3 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING — Conversion of a residential garage into a full residence constitutes creation of a secondary principal structure, and not an accessory structure, thereby requiring a use variance.

Homeowners applied to a zoning board for a variance to modify their home to include an elevator and a third-story for the benefit of a severely disabled son. The application was approved. Subsequently, the zoning official discovered the homeowners were not in compliance with the zoning ordinance because they were using a detached garage for residential purposes, having converted it without obtaining the necessary variances and permits. The owners had installed interior walls, a ceiling, electricity, heat, air conditioning, a kitchenette area, a refrigerator, a television, a sofa, a sink, and plumbing, as well as a sleeping area and bathroom. The owners filed another application with the board to reverse the zoning official’s decision or to obtain a variance so that the garage’s interior could be maintained. They claimed they had long ago received tacit approval from a construction code official to convert the garage into a classroom for their children. However, the only permits they ever sought had been for repair work to a “garage.” The board denied the application, as it considered the proposal a secondary principal structure, and not an accessory structure, thereby requiring a use variance. The board concluded that the impact of the proposed use and lack of a garage on the site would overburden the lot so as to be detrimental to the lot and neighborhood plan and scheme. The owners sued. The lower court held the board had sound reasons to deny the application, and that the homeowners were not being equitably denied permission to continue the use because no one had known the structure was being used for purposes other than a garage, which is what the owners historically represented.

On appeal, the Appellate Division affirmed, finding the lower court did not abuse its discretion in affirming the board’s denial, and that the board did not act in an arbitrary, capricious or unreasonable manner. The Court held that the owners had acted unilaterally in converting their garage into a residential structure only a short time after having received a variance from the municipality to allow for substantial alterations to their principal structure to meet their son’s needs. It agreed with the conclusion that the property was significantly overbuilt, and the proposed use would only add to the burden on the surrounding area

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