Livingston planning board allows homeowners to seek zoning relief after as-built second-floor space

The Livingston Planning Board voted unanimously to modify a condition tied to its 2023 subdivision approval for two Harvest Lane lots, allowing the homeowners to seek variance relief from the board of adjustment over an enclosed second‑floor space built larger than the plans on file.

The action followed testimony from the applicant’s attorney and a professional planner that drawings filed with the tax assessor and the as‑built homes differ: the approved rear roof line was lower, while the homes were constructed with a higher roof that creates an approximately 600‑square‑foot area on the second floor. Attorney Matthew Patad said the board’s May 5, 2023 resolution expressly limited habitable floor area and floor‑area ratio, and the application asks the board to remove that restriction so the homeowners may pursue relief at the zoning board. "We're here tonight, however, seeking the elimination of that condition," Patad told the board.

Planner Alexander Dougherty, accepted as an expert witness, presented drone photos and architectural sheets and described climbing into the attic and dropping into a sealed unfinished void he said exists behind the second floor. "This is a very unique one‑off situation," Dougherty said, adding that the site’s oversized lots and a bank‑owned wooded parcel behind the houses limit visibility and the potential for neighborhood detriment.

Homeowner Bhargab Modi, who said he closed on 23 Harvest Lane in July 2024 and moved in with his family, testified that the builder and realtor told him the rear area would be finished later for an additional fee. "We were advised that this is beyond the scope of what you paid for," Modi said. He said he learned only after moving in that the town would deny finishing the space without a variance.

Board members discussed where responsibility lies — with the builder, the construction department that issued certificates of occupancy, or the prior code that briefly allowed certain attic conversions without a variance — and whether modifying the condition would set an unwanted precedent. Several members emphasized the homeowners appear to be "innocent purchasers" who relied on the COs and the construction as presented at closing. One member noted that certificates of occupancy for both homes were issued on July 17, 2024 and that the buyers closed thereafter.

Rather than rescind the condition outright, members settled on a narrower change to permit the homeowners to present the facts to the zoning board while writing the planning resolution to limit future increases beyond the existing built condition. After discussion, the board held a roll‑call vote; all voting members supported the motion and the chair announced, "Motion carries."

The modification does not itself grant a variance or change the zoning; it only removes the planning‑board prohibition that previously prevented the homeowners from applying to the board of adjustment. The homeowners will still have to make whatever proofs the zoning board requires if they pursue finishing the space. The board also recorded concerns about how the construction and permitting process permitted a built condition different from the plans on file and asked staff to review that enforcement chain.

The meeting record shows the matter identified as application number 2023‑1‑MSUB V23 Harvest Lane (block 401, lots 1501 and 1502), with the original subdivision resolution memorialized May 5, 2023. Certificates of occupancy for both homes were recorded as issued July 17, 2024, and closings followed that same month. The homeowners said the additional area amounts to about 600 square feet; the board and applicant characterized that figure as approximate and subject to confirmation in any variance proceeding.

The board did not set a new hearing date for a zoning‑board application; the next procedural step is for the homeowners or the builder to file before the zoning board of adjustment, where any variance request would be decided on the merits.