Agenda - Planning Commission - 01/03/2008

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December 25, 20071 Volume 1 I No. 24 i~~~> \ ! Variance-Homeowner says residential property well suited for operation of auto repair business Claims modified variance request will retain residential ~haracter Citation: Melito v. Zoning Bd. of Adjustment For Tp. of Marlboro, 2007 WL 4119030 (N.].Super.A.D.) NEW JERSEY (11/21/07)-Melito owned property in Marlboro Township. His property was a l.78-acre, quadrilateral-shaped par- eel located in a residential district that contained a two-story single- family dwelling, a three-bay garage, a single story masonry garage, two masonry sheds, and one wooden shed. Melito applied for a variance to allow him to operate an automo- bile repair facility and ancillary business uses such as towing, snow plowing, and excavation. The township board of adjustment held a hearing that lasted several days. During the fifth day of hearings, Melito amended his application to limit the proposed use to auto- mobile repair out of the existing three-bay garage. Melito argued that his property was particularly suited for his proposed automobile repair use because: it was relatively isolated by woodlands surrounding the site and could be further screened; he would retain the land's residential character by utilizing an existing garage and by not erecting. slgnage; and there were several other non- residential and non-conforming uses in the area. He claimed further that his application met all of the criteria for granting a variance. Several of Melito's neighbors appeared in opposition to the appli- cation, and some board members expressed concern about Melito's proposed commercial use contradicting the intent of the township's master plan to continue the residential character of the area. Ulti- mately, the board voted to deny Melito's application. Melito filed a complaint in court challenging the board's decision. The court found that the board had a reasonable basis in the re- cord to conclude that Melito's application "failed to satisfy his bur- den of proof on both the positive and negative criteria for a use vari- ance" under state law. Melito appealed, arguing that the board's decision was not supported by substantial evidence in the record and that, in fact, the evidence in the record showed that his request should have been granted. Decision: Affirmed. ) i \ For a variance request to be granted, Melito had to satisfy both "positive and negative criteria," meaning that he was entitled to a variance under the provisions set forth by law and that granting him a variance would not result in adverse affects to the neighboring community. Melito argued that the board did not properly consider 11 85