PETER RODSAN v. BOARD OF ADJUSTMENT OF BOROUGH OF TENAFLY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1041-09T31041-09T3

PETER RODSAN, MARTA GENA

RODSAN and JACOB RODSAN,

Plaintiffs-Appellants,

v.

BOARD OF ADJUSTMENT OF

BOROUGH OF TENAFLY,

Defendant-Respondent,

and

BOROUGH OF TENAFLY and

FRANK J. MOTTOLA, JR.,

Defendants.

________________________________________________________________

Argued May 4, 2010 - Decided July 12, 2010

Before Judges Carchman and Lihotz.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County,

Docket No. L-9327-08.

Justin J. Walker argued the cause for

appellants (Piekarsky & Associates, LLC,

attorneys; Scott B. Piekarsky, of

counsel; Mr. Piekarsky and Domenica D.

Hart, on the brief).

Harold Ritvo argued the cause for

respondent.

PER CURIAM

Plaintiffs Peter, Marta and Jacob Rodsan appeal from a October 7, 2009 judgment of the Law Division, affirming the decision of defendant Borough of Tenafly (Tenafly) Board of Adjustment (Board). Plaintiffs sought relief from the Board to permit them to utilize a garage as an accessory structure, including a cabana and other related uses. The Board denied the relief. Judge Conte, in the Law Division, concluded that the Board's action was neither arbitrary, capricious or unreasonable and affirmed the denial of the application. We affirm.

These are the facts adduced from the record. Plaintiffs reside in Tenafly. Plaintiffs Peter and Marta's son, Jacob, suffers from multiple medical conditions and disabilities, rending him severely disabled. To accommodate their son, in 2007, plaintiffs applied to the board for variance approval to modify their home, including constructing a third-story on their home and an elevator. The application was approved in March 2008.

Shortly thereafter, it came to the attention of the zoning official, Frank J. Mottola, that plaintiffs were in noncompliance with the Tenafly zoning ordinance, because a garage, a detached accessory structure, was being used for residential purposes. According to Mottola, the garage had been converted without necessary variances and permits.

Section 35-802.9 of the Tenafly Zoning Ordinance (ordinance), regarding Accessory Buildings and Uses, provides in pertinent part: "i. Garages Appurtenant to Residential Use. A garage to accommodate at least one (1) automobile shall be provided for each dwelling unit in a single-family or two-family detached dwelling." "Accessory building or structure" is defined under the ordinance, Section 35-201, as "a building or structure the use of which is incidental to that of the main building and which is located on the same lot."

Furthermore, Section 35-804.4(a)(2) of the ordinance, regarding Location and Improvement of Required Parking and Loading Facilities, provides: "Required off-street parking facilities shall not be located in any front yard, except that in residence districts, the off-street parking space required for single- and two-family dwellings may be located in a private driveway or accessory garage."

Plaintiffs filed a May 19, 2008 application with the Board seeking reversal of the zoning official's decision or, alternatively, seeking a variance "so that the garage's current interior status may be maintained."

At the hearings on plaintiffs' application, plaintiff Peter Rodsan informed the Board that when he and his wife purchased the home in 1988, the accessory structure had been used as a workshop by the previous owner. According to plaintiffs, between 1993 and 1995, then town construction code official, Gene Bialkowski, gave tacit verbal approval for plaintiffs' proposed conversion of the accessory structure into a classroom for plaintiffs' children. In July 1995, however, plaintiffs requested permits to conduct repair work to that accessory structure and represented the accessory structure as a "garage." The only other permit of record for the garage was an application to upgrade the electrical work.

Beginning in 2004, the garage was used as a family entertainment room, and plaintiffs' disabled son also used the structure during this time to avoid dust, debris and bacteria spread throughout the house as a result of construction to their home. Apparently, plaintiffs' vehicles - a Ford Excursion, a Hummer and a "big van" - do not fit into the garage.

Plaintiffs continued to modify the garage structure without a permit or variance, adding sheetrock wall and ceiling, electricity, heat, air conditioning, a kitchenette area, a refrigerator, a television, a sofa, a sink and plumbing pipes, as well as a living area with a sleeping loft and a bathroom. Plaintiffs also had installed a hot tub but removed it before the hearing. Plaintiffs now plan to use the garage "[j]ust like a cabana. You know, entertainment maybe . . . when guests come . . . to spend some time out there, whatever. But that's about it." Plaintiffs' expert architect witness characterized the garage as being a "finished space; [] not a garage."

Mottola inspected the structure for the first time on October 6, 2008, and he noted that the garage was modified to include a sleeping loft, a kitchen and a bathroom.

The Board denied plaintiffs' application in its December 1, 2008 resolution. The Board first determined that Peter Rodsan's credibility was

limited by his inconsistent and contrary statements. First, he denied the existence of a permit. Second, he indicated that the prior Construction Code Official approved extensive work, which is clearly not borne out by the permit applied for by Mrs. Rodsan. He was inconsistent in his description of what is existent in the garage. He was not candid about work which he accomplished in the garage.

The Board further determined that "[w]hat is proposed here is not an accessory structure as defined by the Development Regulations. . . . Rather, a secondary principal structure is proposed." This conclusion was supported by the fact that "[t]he improvements to date have all the elements of a secondary living space. It has in fact been used for residential purposes as well as a school room." Accordingly, plaintiff's application, "in addition to the elimination of a garage space required by the Code, would create a secondary residence and necessitates a use variance." Ultimately, "[t]he impact of the proposed use and lack of garage on site would so overburden the lot as to be detrimental to the lot and neighborhood plan and scheme. Except for the convenience of [plaintiffs,] no proofs were provided so as to satisfy the negative or positive criteria." The Board unanimously voted to uphold Mottola's denial.

Plaintiffs filed a complaint in lieu of prerogative writs in the Law Division, asserting that the Board's decision was arbitrary, capricious and unreasonable; that the Board's actions were barred by the doctrine of laches; that there was a conflict in the interpretation of Tenafly's Parking and Zoning Codes; and that the chairman of the board had an adversarial and testimonial stance during the hearings.

Following a one-day bench trial, Judge Conte issued a decision affirming the board's denial. The judge determined that the Board had "sound reasons to deny the application[,]" and the chairman "did not improperly influence other [B]oard members against Plaintiffs." The judge further found that the doctrine of laches did not apply because there is no evidence that Tenafly or the neighbors were aware that the structure was not being used as a garage; rather, plaintiffs represented that the structure was being used as a "garage." Furthermore, the parking codes and zoning codes were not in conflict, and the code "differentiates between dwellings and garages." The judge affirmed the Board's decision and dismissed plaintiff's complaint with prejudice and without costs.

Plaintiffs appeal.

Our decision on this appeal is informed by the standard of review that we apply when considering appeals from municipal land use determinations. In light of "their peculiar knowledge of local conditions," zoning boards' decisions are presumed valid. Jack v. Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005) (citing Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965)); Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405 N.J. Super. 189, 196 (App. Div. 2009); Med. Ctr. at Princeton v. Princeton Twp. Zoning Bd., 343 N.J. Super. 177, 198 (App. Div. 2001). Whether a variance applicant has successfully met the relevant statutory criteria is "entrusted to the sound discretion of the municipal boards[.]" Kaufmann v. Planning Board for Twp. of Warren, 110 N.J. 551, 558 (1988); Medical Ctr., supra, 343 N.J. Super. at 198. The party challenging the board's decision bears the burden of overcoming its presumption of validity. Cell S. of N.J., Inc. v. Zoning Bd. of Adj., W. Windsor Twp., 172 N.J. 75, 81 (2002). "[C]ourts ordinarily should not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. Borough of N. Caldwell Bd. of Adjustment, 160 N.J. 41, 58-59 (1999). We may not substitute our own judgment for that of a board, and the board's "factual determinations will not be overturned unless arbitrary, capricious or unreasonable[.]" Wilson, supra, 405 N.J. Super. at 197. Even where the court doubts the outcome, it cannot declare the board's action invalid absent a clear abuse of discretion. Kramer, supra, 45 N.J. at 296-97.

We find neither an abuse of discretion nor a decision that is arbitrary, capricious or unreasonable. We have carefully reviewed the record and are satisfied that plaintiffs' arguments are without merit. R. 2:11-3(e)(10(E). We affirm substantially for the reasons set forth in Judge Conte's written opinion of October 7, 2009. We add the following comments.

The various arguments made by plaintiffs are an amalgam of claims that fail to reflect that plaintiffs engaged in self-help to transform the garage into a second principal structure on the premises. Only a short time earlier, plaintiffs had applied for and received a variance to allow for substantial alterations to the principal residence to meet the needs of their son. Judge Conte correctly rejected the various claims that the Board abused its discretion in denying the relief sought regarding the garage structure. The conclusion that to permit the various proposed uses was an abuse of discretion fails to recognize that that the property is significantly overbuilt, and the proposed uses would increase the previously imposed burden.

 
Affirmed.

Nothing was proffered in the record to confirm this statement, either through the testimony of the code official or a writing to that effect.

The sink, however, was not connected to the water system.

(continued)

(continued)

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A-1041-09T3