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Sitkowski v. Zoning Board of Adjustment of Borough of Lavallette

Decided: February 9, 1990.


On appeal from Superior Court of New Jersey, Law Division, Ocean County.

King, Shebell and Baime. The opinion of the court was delivered by Baime, J.A.D.


[238 NJSuper Page 256] This is an appeal from a judgment of the Superior Court, Law Division, setting aside a determination of the Zoning Board of Adjustment of the Borough of Lavallette (Board) that plaintiff's house which was in the process of being constructed violated the Borough's zoning ordinance. Pursuant to the Board's direction, the zoning officer had revoked a previously granted building permit and had issued a stop order barring plaintiff from further construction. The Law Division judge rendered an oral opinion in which he found that plaintiff's neighbor, P.D. Visioli, had not filed an appeal to the Board from the zoning officer's issuance of the building permit within the 20 day period required by N.J.S.A. 40:55D-72. The judge thus determined that the Board had improperly entertained jurisdiction

over the dispute. He found it unnecessary to determine whether the Board had correctly construed the Borough's zoning ordinance. Although the Law Division's judgment is silent on the issue and merely vacates the Board's resolution, all parties agree that its effect is to set aside the zoning officer's stop order and reinstate the previously issued building permit.

The Board now appeals. Although phrased in a variety of ways, the principal thrust of the Board's argument is that its decision constituted a mere interpretation of the zoning code at the request of an interested party pursuant to N.J.S.A. 40:55D-70b, for which the Municipal Land Use Law does not prescribe a time restriction. In response, plaintiff asserts that the proceedings before the Board constituted an appeal from a decision of an administrative officer, a proceeding that must be brought within 20 days under N.J.S.A. 40:55D-72a. We agree with the position advanced by plaintiff and affirm the Law Division's judgment substantially for the reasons expressed by Judge Clyne in his oral opinion.

The facts are not in dispute. On July 9, 1985 plaintiff was issued a building permit by Joseph Mazzarella, then the Borough's zoning officer. We need not describe in detail the structure that plaintiff proposed to build. Suffice it to say, detailed design plans were given to Mazzarella who reviewed them and issued the building permit, apparently finding that the proposed structure comported in all respects with the Borough's zoning code.

Construction commenced shortly after the permit was granted. On September 24, 1985 Albert P. Ratz, who had succeeded Mazzarella, inspected the footings that had been laid and found that they conformed with all requirements of the construction code. A second footing inspection was conducted on October 4, 1985 and again no problem was discovered. A framing inspection was performed on May 27, 1986. Subsequently, a reframing and sheathing inspection was conducted on August 6, 1986.

Following these inspections, a roof was constructed and exterior insulation was installed.

On September 4, 1986, Robert R. Ellis, an attorney, wrote to Ratz, noting that he had been retained by Visioli. Apparently, Visioli objected to the structure because he believed it consisted of more than the two and one-half stories allowed under the Borough's zoning ordinance. In his letter, Ellis contended that the structure's basement constituted a story because more than one-half of its height was above the average level of the finished grade at the front of the building. In his responding letter, Ratz noted that the building conformed to "approved plans," and rejected Visioli's contention that the bottom floor constituted a story. Ratz explained that "[t]he lowest floor is below grade and is to be considered a cellar." According to Ratz, the floor was "below the Base Flood Elevation" and was "not a habitable living space." Ratz's letter was dated November 5, 1986.

On February 9, 1987, some five months after first advising Ratz of Visioli's contention that the structure did not comply with the Borough's zoning code, Ellis wrote to the Board. Because of the issue presented to the Law Division and now to us, the language employed by Ellis in his letter is instructive. Ellis wrote "[a]pplication is hereby made to appeal the decision of the Borough Zoning Officer" that the structure complied with the requirements of the zoning code.

Ellis' letter precipitated five days of hearings by the Board. On September 14, 1987, the Board rendered its decision. The Board first rejected plaintiff's argument that Visioli's appeal was time barred. While acknowledging that an appeal from a decision of an administrative officer must be taken within 20 days under N.J.S.A. 40:55D-72a, the Board determined that no similar time constraint is imposed as to an interpretation of the zoning ordinance pursuant to N.J.S.A. 40:55D-70b. The Board ...

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