Opinion
DOCKET NO. A-3485-12T1
05-02-2014
JESSE ROSENBLUM, Plaintiff-Appellant, v. ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF CLOSTER, and THE ESTATE OF MARY GIANNOTTI, Defendants-Respondents.
Jesse Rosenblum, appellant pro se. Kates Nussman Rapone Ellis & Farhi, L.L.P., attorneys for respondent Zoning Board of Adjustment of the Borough of Closter (Michael B. Kates, of counsel and on the brief). Rose Tubito, attorney for respondent Estate of Mary Giannotti.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Koblitz and O'Connor.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5046-12.
Jesse Rosenblum, appellant pro se.
Kates Nussman Rapone Ellis & Farhi, L.L.P., attorneys for respondent Zoning Board of Adjustment of the Borough of Closter (Michael B. Kates, of counsel and on the brief).
Rose Tubito, attorney for respondent Estate of Mary Giannotti. PER CURIAM
This controversy involves property owned by the Estate of Mary Giannotti in Closter's Residence Area "B" zone district. The property was purchased in 1936 by Mary Giannotti, who gifted it to her son, Alexander, and his wife, Mary, in 1948; they constructed a two-family house on the property in 1949. In 1955, Closter adopted an ordinance that "eliminate[d] the construction of two-family dwellings." A second structure — consisting of a two-car garage with an apartment on the second floor — was constructed by the owners in 1959. In 1980, Closter adopted an ordinance that allows for no more than one principal building per lot. Consequently, the structures on the property do not conform to these ordinances.
The parties' submissions interchangeably refer to the owner as the estate or as Robert Giannotti, the grandson of the original owner. Because the identification of the actual title owner makes no difference for purposes of our disposition of this appeal, we will simply refer to the owner as "the owner."
The lot consists of 16,273 square feet, well in excess of the zone's requirement that lots be at least 12,500 square feet.
In 2011, zoning officials realized the property's non-conforming status. A temporary certificate of occupancy was issued on February 22, 2011, requiring the present owner to file an application for a zoning permit that would re-designate the property for a two- or three-family dwelling. That application was submitted and denied. The owner then filed an application for variances in October 2011. On December 1, 2011, the board of adjustment gave notice of a hearing on the matter.
At a February 15, 2012 hearing, the owner conceded the property was non-conforming and required variances. An engineer testified in the owner's behalf that the variances requested did not require further construction, just approval for an existing condition. A professional planner also testified about the "positive criteria" that favored the granting of relief. Plaintiff objected to the application and was permitted to cross-examine Robert Giannotti and both experts. A divided board approved the application; five members voted in favor and two against.
Plaintiff filed a complaint in lieu of prerogative writs on June 28, 2012, alleging, among other things, that notice of the hearing was deficient and the application was otherwise without merit. After hearing oral argument, Judge Alexander H. Carver, III, rendered a thorough oral decision, ultimately concluding that the board had not acted arbitrarily, capriciously or unreasonably. An order of dismissal was entered on February 14, 2013.
The order stated that the judge reserved the right to supplement his oral decision with a written opinion. In a later letter, the judge advised he would not file a written opinion. The order under review also stated that defendants had moved for counsel fees, claiming the complaint was frivolous within the meaning of N.J.S.A. 2A:15-59.1. The order states that the judge had reserved decision on that question, but no further ruling was ever made as far as we can tell, and it does not appear that defendants later complained of the lack of a disposition on that application. In these circumstances, we assume defendants have abandoned their claim for a counsel fee award based on the frivolous litigation statute, or otherwise, and that the order in question constitutes a final disposition of all issues as to all parties.
--------
Plaintiff appeals, arguing:
I. THE PUBLIC NOTICE WAS INSUFFICIENT.We find insufficient merit in these arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
II. THE BOARD ACTED ARBITRARILY IN PROVIDING VARIANCE RELIEF FOR ZONING DEFICIENCIES DIRECTLY ATTRIBUTABLE TO THE APPLICANT.
III. THE ILLEGALITIES, BOTH USE AND STRUCTURE, ON THE PROPERTY BASICALLY FORM THE FUNDAMENTS FOR THE ALLEGED SPECIAL REASONS PROFFERED BY THE DEFENDANTS.
IV. THE NEGATIVE CRITERIA WERE NOT SATISFIED.
V. EQUITABLE ESTOPPEL DOES NOT PROVIDE SUPPORT TO THE DEFENDANTS.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION