for Montclair Local

The Montclair Zoning Board of Adjustment reversed a decision by Planning Technician Richard Charreun that a one-inch separation between a proposed walkway and pool house was not enough distance.

Resident Zachary Zeltzer applied for a permit last year to construct the pool house at 35 Afterglow Way in a zone that doesn’t specify minimum separation between principal and accessory structures.

Attorney Richard Schkolnick argued on April 17, in an appeal before the zoning board that the Dec. 13, 2018 decision to reject the application, was based on a non-existent law and that the planner was actually advocating for a 10-foot distance.

“I don’t want to over dramatize what we’re doing here, but it’s about the rule of law and applying the law on the books at the time of this application,” Schkolnick said. “The zoning official applied a law not yet on the books. He’s up front about it and appears to say, ‘I make the rules.’ In one line, he desires a 10-foot separation between principal structure, which is not yet adopted, and says my client needs a variance.”

The letter from Charreun indicates that the applicant, under Roca Construction, LLC, should make a “good faith” effort in light of the planning department clarifying zoning requirements to establish a distance.

“The property is located in the R-1 Zone, which does not specify a minimum separation between principal and accessory buildings. The planning department is presently working on a zoning ordinance revision that will require a minimum distance of 10 feet between a principal and accessory building to clarify this issue. The proposed 10-foot distance is presently required in another zone (R-3) albeit related to distance between accessory buildings on the same lot,” Charreun wrote in the Dec. 18, 2018 letter to the applicant.

He provided guidance, noting that if the plan is revised to create a 10-foot separation “as a policy measure in good faith and in keeping with the ordinance amendment that is underway this department would grant zoning approval for the building as an accessory building. However, future proposals to connect the two buildings would require the variance cited above and I would caution the applicant against approaching zoning issues with a construction project in that manner.”

Planner Michael Petry said his team read through the zoning ordinance thoroughly and contacted the planning department to confirm that there was no separation requirement between accessory and principal structures in the R-1 zone. “We stopped the [22 by 50, 1100 square feet] enclosure an inch short of the building so they would be separate structures. They don’t rely on each other, they’re not attached or structurally reliant on each other,” Petry said. “The current ordinance is what governs. The board has no choice but to reverse the decision of the planning department.”

Zoning Board Chair William Harrison questioned if the proposed swimming pool walkway constitutes an accessory structure. “The accessory structure [definition] is limited so that any such structure doesn’t have the potential to become a living space, with heating and plumbing,” Harrison said.

Petry said that the enclosed pool house would open on both sides of the swimming pool to allow for views and open to outdoor seating. The roof opens for natural light and closes when the weather is inclement. The structure would not contain bathrooms and sinks, Petry said.

The applicant needs to resubmit architectural plans indicating the one-inch separation, which was initially not done due to difficulty depicting an inch on a scale, as per architect Edmundo Lopez. In addition, the matter of whether the walkway constitutes an accessory structure still needs to be worked out, the board noted.