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Irvin v. Township of Neptune

December 9, 1997

BEVIN IRVIN, PLAINTIFF-RESPONDENT,
v.
TOWNSHIP OF NEPTUNE, GENE R. MARKS, CONSTRUCTION OFFICIAL, PATSY K. TOWNSEND, DIRECTOR OF CODE & CONSTRUCTION, AND DAVID SPATZ, PLANNING CONSULTANT, DEFENDANTS-RESPONDENTS, V. THE OCEAN GROVE HOMEOWNERS ASSOCIATION, INTERVENOR/DEFENDANT-APPELLANT.



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

Approved for Publication December 9, 1997.

Before Judges Havey, Landau and Newman. The opinion of the court was delivered by Landau, J.A.D.

The opinion of the court was delivered by: Landau

The opinion of the court was delivered by

LANDAU, J.A.D.

This is an appeal by intervenor Ocean Grove Homeowners Association (OGHA) *fn1 from a final order by the Law Division, dated February 11, 1997, which directed that a stop work order issued by the Township of Neptune (Township) for construction at 62A Main Avenue, Ocean Grove *fn2, be permanently vacated and that as plaintiff Bevin Irvin had been granted all necessary approvals, he could proceed with construction at that location. We reverse.

On April 24, 1995 Irvin entered into a contract to purchase the property containing an abandoned hotel with thirty-three rooms and two apartments which had stood vacant for more than ten years. The hotel property is located in a HD-C district (historic-commercial). In December 1994, it was determined to be a legal non-conforming use in that zone by Patsy K. Townsend (Townsend), Director of Code and Construction/Zoning Official for the Township. Hotels are conditional uses in the HD-C district, while apartments may be accessory uses provided they are in a mixed use commercial/residential building.

Irvin took title on May 25, 1995.

A demolition permit was issued by the Township in July 1995. In August, a Certificate of Appropriateness for exterior repairs was issued by the Township Board of Architectural Review, followed by a building permit for the repair work approved by that Board.

In August 1995, initial construction drawings were submitted to municipal officials by plaintiff's architect showing plans for stores and apartments. These were subsequently modified by Irvin to exclude the stores, primarily in response to the concerns of municipal officials respecting handicap access, and Irvin's unwillingness to incur the costs to provide such access. A structural engineering report was also submitted. On January 6, 1996, plaintiff sent a letter to the Township of Neptune's zoning officer requesting permission to construct ten apartments in the existing building, but no stores.

After an exchange of communications between Townsend, the Code official, and Dave Spatz (Spatz), the Township's planner, it was determined that although the property was in an HD-C zone in which apartments were only a permitted accessory use to commercial stores, plaintiff's intended construction qualified as a continuation of a legal, pre-existing non-conforming (hotel) use.

On February 2, 1996, plaintiff submitted his new construction drawings for conversion of the hotel into a ten-apartment structure. Townsend determined that this was a pre-existing use and the plan to "downsize the units to a total of 10 apartments . . . would be an approved use . . . not requiring a variance." Thereafter, on April 23, 1996, a construction permit was issued by Gene Marks, the Township Construction Official. In October and November 1996, an additional Certificate of Appropriateness was received from the Board of Architectural Review, and plumbing and asbestos permits were issued.

A "formal complaint" about the construction was filed on or about November 8, 1996, at the Township's request, culminating six weeks of ongoing meetings between citizens and Township officials.

In early November 1996, Spatz, the Township planner, determined that: (1) "the project was incorrectly classified as [a] hotel rather than a multi-family structure"; (2) "the property owner/applicant should be required to resubmit a new permit application which contains a correct description of the project [and] the current permit should be withdrawn to allow for a resubmission"; and, (3) "as is the general procedure, a stop work order should be issued to halt all ongoing work on the project." He further noted "multi-family uses are not permitted in the HD-C ...


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