GOVERNING BODY CITY OF PERTH AMBOY v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF PERTH AMBOY, ET AL.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 2136-04T22136-04T2

GOVERNING BODY OF THE CITY OF

PERTH AMBOY,

Plaintiff-Appellant,

v.

ZONING BOARD OF ADJUSTMENT OF

THE CITY OF PERTH AMBOY,

and WILLIAM and ELIZABETH MEDINA,

Defendants-Respondents.

______________________________________________________________

 

Argued September 13, 2005 - Decided

Before Judges Coburn, Lisa and S. L. Reisner.

On appeal from the Superior Court of New Jersey,

Law Division, Middlesex County, L-4775-04.

Alberto Rivas argued the cause for appellant

(Lite DePalma Greenberg & Rivas, attorneys;

Mr. Rivas, on the brief).

Bernard H. Shihar argued the cause for

respondents William and Elizabeth Medina (Convery,

Convery & Shihar, attorneys; Mr. Shihar, on the brief).

Alfred J. Petit-Clair, Jr., attorney for

respondent Zoning Board of Adjustment of the

City of Perth Amboy, filed a brief.

PER CURIAM

Defendants William and Elizabeth Medina applied to the Board of Adjustment of the City of Perth Amboy for approval of a subdivision and variance. They wanted to subdivide a 50-foot by 100-foot lot, which contained a nonconforming two family house, into two 25 by 100-foot lots, with a new one-family house to be built on the newly created lot. The local ordinance set the minimum lot size at 50 feet by 100 feet, but there were quite a few houses in the area on 25 by 100-foot lots. No one opposed the application, and after a full hearing, their application was granted by a duly adopted and unanimous resolution.

Plaintiff, the Governing Body of the City of Perth Amboy, filed a complaint in lieu of prerogative writs challenging the Board of Adjustment's action. On cross-motions for summary judgment, Judge Ciuffani dismissed the complaint on the ground that the Governing Body lacked standing.

On appeal, the Governing Body argues Judge Ciuffani erred because the Board of Adjustment had engaged in rezoning and had usurped the Governing Body's role by granting the requested variance contrary to the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -136.

After carefully considering the record and briefs, we are satisfied the Governing Body's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(e), and we affirm substantially for the reasons expressed by Judge Ciuffani in his oral opinion of December 20, 2004. Nonetheless, we add the following comments.

The Governing Body may only challenge a variance grant in the Law Division by an action in lieu of prerogative writs when the variance would have a substantial effect on the municipal zoning plan. Stafford v. Stafford Zoning Board, 154 N.J. 62, 78 (1998). In Township of Dover v. Board of Adjustment, 158 N.J. Super. 401 (App. Div. 1978), which was approved by the Supreme Court in Stafford, supra, 154 N.J. at 76-80, we described the analysis required for determining substantial effect in this way:

The basic inquiry in each case must be whether the impact of the requested variance will be to substantially alter the character of the district as that character has been prescribed by the zoning ordinance. That inquiry requires analysis and evaluation of such factors as the size of the tract itself; the size of the tract in relationship to the size and character of both the district in which it is located and the municipality as a whole; the number of parcels into which it is anticipated that the tract will be subdivided if subdivision is part of the plan, and the nature, degree and extent of the variation from district regulations which is sought. The test of whether the board has been engaging in proscribed legislation must ultimately be one of both geographic and functional substantiality vis- -vis the plan and scheme of the municipality's zoning ordinance.

[Township of Dover, supra, 154 N.J. Super. at 412-13.] Here, the tract, if one may even call it that, was tiny, and its proposed development, which involved the creation of a single new lot with one house, was consistent with a number of other houses in the area built on 25-foot by 100-foot lots. The variation from the zoning plan is obviously minimal and clearly will have no substantial effect on the zoning plan. Therefore, Judge Ciuffani was obliged to find that the Governing Body had no standing and to dismiss the complaint.

Affirmed.

 

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A- 2136-04T2

September 21, 2005