On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
King, Baime and Keefe. The opinion of the court was delivered by Keefe, J.A.D.
[242 NJSuper Page 423] When reduced to its essence, this appeal concerns the enforceability of a 28 foot height restriction imposed as a condition of a variance permitting the renovation and addition to a permitted residential use on a nonconforming lot. It is undisputed that the resolution, passed one month after the Harvey Cedars Zoning Board of Adjustment (Board) voted to grant the variance, was never served on the plaintiffs, Michael and Ruth Sherman, or their attorney, and the violation of the condition was not brought to plaintiffs' attention until well after construction commenced. Plaintiffs' application to the Board for relief from the condition was denied. Their challenge to the Board's decision by way of complaint in lieu of prerogative writ was also unsuccessful, resulting in this appeal. For the reasons stated herein, the judgment under review and the decision of the Board denying relief from the height restriction is reversed. We conclude that the Board's finding that the variance would not have been granted but for the height restriction
is totally unsupported by the record of the proceedings before the Board and, therefore, its decision not to rescind the height restriction is arbitrary and capricious.
Plaintiffs purchased the property at East 81st Street, Harvey Cedars, in June 1987. At the time of purchase, the house was in "terrible disrepair" and "dilapidated." It was purchased with the intent to renovate it and add a second floor but remain within the "footprint" of the raised one-story existing structure. (The existing one-story structure rested on raised wood pilings as do many homes on Long Beach Island.)
Plaintiffs engaged an architect, Robert Roth, to prepare the necessary plans. Roth's office is in Ship Bottom on Long Beach Island, south of Harvey Cedars, where most of his work is concentrated. After preparation of the plans, plaintiffs applied for a building permit. The building inspector refused to issue a permit, citing "[n]onconforming set backs and frontage of 50 ft."
The lot on which the house was situated is 40 by 100 feet whereas the required lot size is 50 by 100 feet. In addition, the house was set back only 1.3 feet from the front line whereas a 15 foot set back is required in the zone. Moreover, the existing structure violated the side yard requirements of 8 feet each. Notwithstanding those nonconformities a variance would have been unnecessary but for the fact that plaintiffs' proposal included a new second floor containing approximately 1,200 square feet as well as enclosing the pilings on which the first floor rested for the purpose of creating a garage and storage space.*fn1 The increase in floor area violated the existing zoning ordinance which prohibited the total floor area ratio (F.A.R.) from exceeding 50% of the lot area. Ordinance § 13-6.7b.
Thus, plaintiffs applied to the Board for a "hardship" variance to permit "[a] second story addition."*fn2
At the first hearing before the Board, a survey and two architect's prints were submitted to the Board for review. Technical evidence concerning the proposal was given by Richard Pelrine, an employee of Roth. The Board pointed out that by enclosing the ground level of the structure to create a garage and storage area, plaintiffs were exacerbating the F.A.R. nonconformity. Additional concerns were expressed about the setback of the house as compared to the houses in the neighborhood. It was further observed that the second sheet of the architect's drawing showed the height of the house at 29 feet 9 inches measured from the lot grade whereas the ordinance permits a 30 foot height but measured from "the established street grade." Ordinance § 13-6.4. The first sheet of the architect's drawing, however, contained the following legend as to height: "Zoning required, max. bldg. height, 30' - 0" above crown of road. Existing 24' - 9" above crown of road. Proposed 30' - 0" above crown of road." It was not clearly established in the record what the street grade was at the location, although the Board speculated that the crown was perhaps 8 inches to 1 foot higher than the lot grade. It was ultimately agreed that new plans and a new survey would be submitted containing the height measured from the crown of the road as well as other changes necessary to meet the Board's concerns as expressed at the meeting.
At the second hearing on October 15, 1987, Roth appeared instead of Pelrine. Revised prints had been filed as well as a revised survey. Roth was asked by plaintiffs' attorney to "point out the differences between the plans as they're presented now from the original set submitted." Roth proceeded to describe three such changes: 1) the building was moved back
"one piling" space or 8.3 feet so that the building was in line with the front building lines of the houses on either side; 2) the "total height of the building will be 28 feet from the crown of the road which meets the ordinances of the Town. We did this by lowering the pitch of the roof to facilitate that extra foot. I believe we were close to being over. We were measuring from the grade at the building and not from the crown of the road so we just added a note on here so when the construction is finished, it will be measured from the crown of the road"; and 3) the enclosure of the lower level for the garage was eliminated and the amount of enclosed storage space at that level was reduced so that the F.A.R. was now 63%. After further questioning of Roth and discussion among the Board members a motion was made to approve "this second application as it's all drawn out here." The motion was understood to approve the application as submitted based upon the latest revision of the plans. The motion was seconded and voted upon. The variance was approved by a vote of 6 to 1.
After a recess was taken in the proceedings, Mrs. Sherman asked whether a resolution could be drafted that evening so that construction could begin without further delay. When she was advised by the Board attorney that a resolution could not be drawn that evening, a compromise was offered. The Board chairman suggested that he make a notation on the revised plans that "they were accepted as shown entirely" and that such notation might be acceptable to the building department for the purpose of issuing a permit. The plaintiffs accepted the offer. A notation was made on the prints and a building permit was thereafter issued.
The formal resolution was presented to the Board for approval on November 9, 1987. Neither the plaintiffs nor their attorney were present when the resolution was passed. The resolution provides in pertinent part: "This approval is further subject to the height of the building, when complete, not exceeding 28 feet from the crown of the road." It is undisputed
that the resolution was never mailed to the plaintiffs or their attorney.
In February 1988 the building inspector alerted the builder that there might be some problem with the height of the structure. At that time the roof was framed and sheathed but was not shingled. The builder was not aware of the 28 foot restriction contained in the resolution. When he was alerted to the "height problem" he consulted the ordinance and learned that the height permitted was 30 feet. The builder then discussed the matter with Roth who in turn wrote to plaintiffs' counsel. A stop order was not issued by the building inspector on the representation by the builder that the problem would either be corrected or that a variance would be sought.
On February 9, 1988 plaintiffs' attorney addressed the following letter to the Board.
It has come to my attention that the Sherman's builder has constructed their house to a height of 30' which is consistent with the Borough height limitation but is 2 feet higher than the 28' noted on the architect's plan which was submitted at their variance hearing this fall. I have enclosed a copy of the architect's letter explaining that the error was a result of his failure to change the pitch of the roof on his drawings.
Since the change in question is not in violation of the zoning ordinance limitations, we would request the resolution be amended to reflect the 30' height which is permitted by ordinance. Since no variance is involved, I believe this may be effected without the need for a new application. Please review this matter with ...