On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-3278-01.
Before Judges Lefelt, Alley and Falcone.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 28, 2004
Plaintiffs Maureen Grasso and R.G. Grasso, Jr., Inc. appeal from two judgments: (1) upholding Spring Lake Heights Borough's denial of plaintiffs' application for a height variance, and (2) declining to estop the Borough from enforcing its zoning ordinance. We affirm the estoppel judgment, but because we articulate, for the first time, the standard to be applied in reviewing an application for a height variance under N.J.S.A. 40:55D-70(d)(6), we vacate the variance denial and remand to the Board of Adjustment for reconsideration of plaintiffs' application.
The pertinent facts are relatively simple. The property in question is a residentially zoned three-lot subdivision located along a ridge on the Borough's border with Wall Township. The lots, particularly the corner lot, slope steeply upward approximately ten feet from the front to the rear of the property. The ridge is the highest part of the Borough, with the Township's terrain, for the most part, being flat.
Rudolph Grasso, husband of plaintiff Maureen Grasso and the manager of plaintiff R.G. Grasso, Jr., Inc., is a"spot" builder who constructs"spec" homes for sale. Grasso secured a zoning and construction permit to build, on the corner lot of the three-lot subdivision in question, a two-story colonial style house that was represented to the zoning and construction officials as being slightly less than thirty feet high. Unfortunately, however, plaintiffs measured the height of the structure from grade along the foundation and the Borough's zoning ordinance requires building height to be measured from the curb line.
Several neighbors complained that the house was too high, and the Borough issued a stop-work order. By the time the stop order was issued, plaintiffs had improved the curbs, streets and sewer lines, dug the foundation, installed the footings, and framed, sheathed, and roofed the house at a cost of approximately $12,000 for the improvements and $51,000 or $52,000 for the house. It was undisputed that the partially constructed home was thirty-eight feet above curb line, although twenty nine and one-half feet above grade.
Plaintiffs sought a height variance for the"spec" house under construction and for two homes they intended to build for their daughters, at a later date, on the other two subdivided lots. After conducting a hearing, the Board of Adjustment denied the variance.
Plaintiffs then filed a verified complaint in lieu of prerogative writs, alleging that the Borough was estopped from enforcing the zoning ordinance's height requirements and challenging the Board's denial of the height variance, both because the Board's findings were inadequate and the decision was arbitrary and capricious.
Judge Ronald L. Reisner ruled that issuance of a construction permit did not estop the Borough from enforcing the height restriction because plaintiffs had misrepresented, however innocently, the height of the house as being under thirty feet. Accordingly, the judge voided the zoning and construction permits under which plaintiffs were building the house.
After first correctly remanding for additional findings, Harrington Glen, Inc. v. Mun. Bd. of Adjustment of Borough of Leonia, 52 N.J. 22, 28 (1968), another judge affirmed the Board's variance denial and held that the standards to evaluate an application for a height variance were the same as for a use or (d)(1) variance. Plaintiffs timely appealed to this court, advancing three arguments, which we address in turn.
Plaintiffs first argue that, upon the remand, individual comments by Board members lacked support in the record or were legally irrelevant. This argument is beside the point because it is the resolution that controls, not the observations of individual board members. Scully-Bozarth Post #1817 of Veterans of Foreign Wars of U.S. v. Planning Bd. of City of Burlington, 362 N.J. Super. 296, 311-13 (App. Div.), certif. denied, 178 N.J. 34 (2003); William M. Cox, New Jersey Zoning and Land Use Administration, § 28-5.1 (Gann 2004). The resolution is the official act of the Board. Scully-Bozarth Post, ...