Letter to Board 104 Winding Way

SPRINGFIELD │ NEWARK │ VOORHEES │ ELIZABETH | UNION | ELMWOOD PARK │MORRISTOWN | SUMMIT | CHERRY HILL | VINELAND │ | NEW YORK │ATLANTA | New Jersey Courts have found that knowledge of an existing non-conforming lot does not immediately disqualify the applicant from requesting the variance under the c(1) criteria. If an owner, who was entitled to a lot-size variance on hardship grounds, sells to a buyer who knows that the lot does not conform, the right to a variance is not lost as a result of the buyer's knowledge. Dalton v. Ocean Twp. Zoning Bd. of Adjustment, 245 N.J. Super. 453 (App. Div. 1991). An applicant who pursues a variance under N.J.S.A. § 40:55D-70(c)(1) must establish that the particular conditions of the property present a hardship. The efforts made to bring the property into compliance with the ordinance are factors that must be considered. Those efforts may include attempts to acquire additional land or offers to sell the nonconforming lot to adjacent property owners. Ten Stary Dom Partnership v. Mauro, 216 N.J. 16 (2013). Subsequent to the last hearing, our office sent letters to the Municipality and the one adjoining property owners to inquire as to the availability of any property or desire from those property owners to acquire this property. As of this date no responses have been received. Finally, this letter is also intended to confirm that this application is not barred under the doctrine of res judicata due to the prior denied application in 2005. This position was additionally supported by the Board’s attorney during the last meeting. Res judicata does not bar a new application if there are significant differences in the application or changed circumstances affecting the property. The Supreme Court has stated that the requirement for significant changes “be liberally construed in favor of the applicant [which] would be in accord with the purpose of boards of adjustment to provide the necessary flexibility to the zoning ordinance.” Russell v. Bd. of Adjustment of Borough of Tenafly, 31 N.J. 58, 66 (1959). The present application is significantly different from the previous application that was denied by this Board. The prior application was for a single-family residence but the similarities between the applications end there. The present application removes variances for rear and front yard setbacks along with a reduction in the

tion was for a single-family residence but the similarities between the applications end there. The present application removes variances for rear and front yard setbacks along with a reduction in the footprint of the proposed home by nearly 10%. The present application requires additional variances for steep slope relief due to the addition of steep slope requirements after the denial of the previous application. Should you have any questions or concerns, please do not hesitate to contact this office. Respectfully Submitted, /s/ Stephen F. Hehl STEPHEN F. HEHL SFH:tje cc: Alexander Fisher, Esq. via email Ryan MacNeill, PE via email Christopher Dochney, PP, AICP via email