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Rosenblum v. Zoning Board of Adjustment Borough of Closter

2006 WL 618908 (N.J. Super. Law Div. 2006) (Unpublished)

ZONING; VARIANCES—Where the essential characteristics of a permitted use will remain unchanged by the addition a second story to an existing, permitted non-conforming home, a use variance is not required.

A homeowner owned a one-story residential house. The house fell short of the size required by the municipality’s zoning ordinance. Since the house was erected prior to the passage of the zoning ordinance, the house was a permitted nonconforming use. The homeowner sought approval from the municipal subcode official to construct a second floor. The subcode official denied a zoning permit, determining that such a project would require a variance from the zoning board. The homeowner then applied to the zoning board, seeking a decision that the subcode official wrongfully denied the zoning permit. The board ruled that the addition to the house was neither an expansion of a nonconforming use nor a nonconforming structure. An objector at the zoning board hearing appealed.

All parties to the appeal agreed on the material facts. Therefore, the only issues were legal in nature. In such a case, a court owes no deference to the municipal zoning board. The lower court ruled that to determine if a proposed expansion constitutes an expansion of a nonconforming use, it must undertake a qualitative fact-sensitive analysis. Doing that, it found that the proposed second-story addition to the residential home would not intensify the use of the home as a single-family residence. The proposed expansion was for the use of the present homeowner and no other people were expected to move in after completion of the addition. Further, the municipal ordinance controlling in this case related generally to bulk limitations such as height and other dimensional restrictions. The municipal code did not speak to use limitations. As a result, the Court upheld the zoning board’s decision that the proposed second-story addition did not constitute an expansion of a nonconforming use. Because the essential characteristics of a permitted use would have remained unchanged by the addition of the second-story, a use variance was not required.

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