On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County.
Antell, Bilder and A.m. Stein. The opinion of the court was delivered by Arnold M. Stein, J.A.D.
Plaintiffs appeal the order granting summary judgment to defendants Sculco and the Cliffside Park Building Inspector in dismissing the complaint. We reverse because the side yard setback provisions of Cliffside Park's zoning ordinance take precedence over conflicting state building code provisions.
Plaintiffs live at 60 Grand Avenue. Defendant Sculco owns 56 Grand Avenue, the next-door property. Both lots are located in the R-1 one-family zone. By resolution dated February 11, 1980, the Cliffside Park Board of Adjustment granted Sculco a variance to construct a two-family house on his property which would occupy 43.5% rather than the maximum 35% of the lot area. The sketch filed by Sculco with the application showed entry to both living units at the front of the structure and depicted the proposed building to be within the confines of the maximum four-foot side yard setback required by § 18-4.3e of the zoning ordinance.
As construction proceeded, plaintiffs observed that Sculco was building a different structure than that shown on the sketch presented to the board of adjustment. The most significant changes were the encroachments into the four-foot side yard by the chimney (by one foot), a side stairway not shown in
the original sketch (by 2.91 feet) and the roof overhang (by one foot).
Sculco and the building inspector contend that these encroachments into the side yard setback are permitted by the model code of the Building Officials and Code Administrators International, Inc., known as the "BOCA National Building Code/1987." They argue that the provisions of the BOCA code, made applicable to all municipalities, preempt any provision in a local zoning ordinance.
The BOCA code was adopted and incorporated by reference into N.J.A.C. 5:23-3.14, promulgated pursuant to the State Uniform Construction Code Act, N.J.S.A. 52:27D-119, et seq., more particularly N.J.S.A. 52:27D-123a.
Section 712.1 of the BOCA code provides:
Permissible projections: Every required court and yard shall remain unobstructed for its required area and full height, except for the projection permitted in Section 508.0.
Section 508 of the BOCA code provides:
508.1 General: A part of any building or structure shall not extend into side courts, inner courts or yards required for light and ventilation of habitable and occupiable rooms by the provisions of Article 7, or by the zoning law or other statutes controlling building construction, except as hereinafter provided; but the encroachment shall not exceed ...