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Winn v. City of Margate

Decided: June 27, 1985.

DR. HAROLD WINN, PLAINTIFF,
v.
CITY OF MARGATE, DEFENDANT, AND MORTON SHIEKMAN, ROBERTA SHIEKMAN, LEONARD STOMACHIN, JUDITH STOMACHIN, DR. MARTIN CASSETT AND ADA CASSETT, INTERVENORS



Gibson, J.s.c.

Gibson

This is a prerogative writ action in which plaintiff seeks to restrain the City of Margate from enforcing that portion of its zoning code regarding off-street parking requirements for a professional office being operated out of a home. There are two grounds asserted to support this relief. Firstly, it is argued that the city is estopped from claiming that plaintiff is in violation of the code because of the issuance of a building permit for the premises and a prior oral opinion by the building inspector that the intended use was permitted. Secondly, plaintiff claims that a denial of his variance application by the zoning board of the City of Margate was arbitrary and should be overturned. This matter initially came before the court in October 1984; at that time plaintiff sought and received a temporary restraint against a pending municipal court hearing regarding a zoning code complaint arising out of the above use. On the return day of the order to show cause the injunction was continued and a plenary hearing was scheduled on an expedited basis. The result of the plenary hearing was the issuance of a preliminary injunction pending action by the Margate Board of Adjustment on plaintiff's variance application. The zoning board met on December 6, 1984 at which time there was a unanimous decision denying the variance. Although there was no formal appeal of that denial all issues were ultimately returned to this court for review.

A final hearing was conducted here on May 14, 1985 at which time all counsel agreed that no further testimony was necessary. It was stipulated then that the ruling of the court should be based on the testimony previously elicited, the presentation before the zoning board and the briefs submitted. Following oral argument the court reserved decision so that a transcript of the October 1984 hearing could be obtained and also to allow further input from counsel on certain of the legal issues. The

following findings of fact and conclusions of law may now be made.

Plaintiff, Harold Winn, is a physician and a board certified psychiatrist licensed to practice psychiatry in the State of New Jersey. In June 1984 he acquired the property known as 103 South Mansfield Avenue, Margate City, New Jersey from Kenneth R. and Rose Sharp pursuant to a written contract dated March 24, 1984. The property is located in a residential zone within the beach block of Margate. It is now occupied by plaintiff and contains a professional office from which he conducts his practice. In December 1983, prior to the purchase, the former owner applied for and received a building permit for certain minor renovations from the city building inspector, Donald Sullivan. Sharp represented at that time that he intended to repair and/or replace certain plaster with dry-wall and also to replace front and side windows as well as kitchen cabinets. Since he was not a licensed contractor, in order to qualify for a construction permit pursuant to N.J.A.C. 5:23-2.5(p), he certified that he intended to do all the design, construction, plumbing and electrical work himself and that he would occupy the premises for his own use as a residence. A few months later, however, he entered into negotiations with plaintiff regarding the sale of the premises. Plaintiff let it be known then that he was interested in utilizing the premises not only as his residence but as a site for his office and it was agreed that an inquiry should be made of the building inspector regarding the legitimacy of such a use. Plaintiff was represented by counsel at the time and also consulted with him on this subject. His attorney likewise advised him to consult with the building inspector.

In mid-March 1984 plaintiff contacted the building inspector by phone. After indicating that he was considering purchasing a home on Mansfield Avenue, he asked whether it was permissible to operate a professional office there and also whether alterations could be made to establish a waiting room. Sullivan responded in the affirmative and indicated that although the

premises were located in a residential zone, the code permitted professional offices for use by the occupant. No plans or other data were submitted to Sullivan at that point and there were no discussions regarding any other requirements such as off-street parking. Sharp had a similar conversation with Sullivan shortly thereafter at which time he also asked whether the property could be used for professional offices. He received a similar response and was also given a copy of a portion of the zoning code regarding uses permitted in particular zones. Negotiations between plaintiff and Sharp then continued and on March 24, 1984 a contract of sale was executed. The contract called for a total purchase price of $263,827 with closing scheduled for June 15, 1984. Seller guaranteed that there were no restrictions which would prohibit the use of the property as a single-family dwelling including a portion of the property for use as an office for the buyer's practice of psychiatry. Seller then undertook to complete the several renovations required by the contract and agreed to deliver a certificate of occupancy at closing.

Sharp returned to the building inspector in April 1984 and sought an amended building permit. Although a floor plan which he had prepared was presented which showed the creation of certain new walls and a doorway connecting an existing garage to the main structure, no mention was made that he no longer intended to use the premises for his own use; nor was any mention made of the agreement with plaintiff or his intention to renovate the premises for use as a doctor's office. The amended certificate was thus issued and the work commenced.

In June 1984 closing was completed and title was transferred. No certificate of occupancy was obtained and thus none was presented. Sharp had previously called for an inspection and obtained an electrical approval but was told that no certificate of occupancy was necessary. Sharp related this information to plaintiff and he withdrew his requirement for the certificate of occupancy. Plaintiff had no attorney present at the time.

Plaintiff subsequently moved into the premises and quickly opened his office. Responding to certain complaints from neighbors Sullivan then inspected the premises for the first time. Upon discovering that it was being used as a doctor's office, he gave notice to plaintiff to close the office as it was in violation of chapter 100-10A(7) of the ...


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