On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-101-03.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Grall and Gilroy.
Plaintiffs obtained site plan approval from the Cape May City Planning Board for development of a "tourist/guest house," which is a permitted use in the zone in which their property is located. Seven years later, they applied to the Board of Adjustment for an opinion that the facility constructed pursuant to this site plan approval is actually a hotel, which is not a permitted use in the zone, and that plaintiffs are entitled to operate a public restaurant in that facility as an accessory use. The Board of Adjustment rejected this claim, and the trial court affirmed the Board's decision. We hold that the doctrine of judicial estoppel bars plaintiffs from claiming that the facility for which they obtained site plan approval as a "tourist/guest house" is actually a "hotel" in which they may operate a restaurant as an accessory use.
On October 24, 1994, plaintiffs applied to the Cape May City Planning Board for site plan approval for a proposed development that they described as a "Guest House." Plaintiffs' application stated that the present use of the structure on the property, a historic building called the "George Allen House," was an "Inactive Guest House," and that their proposed development would consist of twenty-three guestrooms and owner's quarters. The development was planned to be completed in two phases. In the first phase, the existing building would be restored for fourteen guestrooms, and in the second phase, an addition would be constructed to accommodate nine more guestrooms, the owner's quarters and a small conference facility. Plaintiffs also applied for a number of bulk variances.
When plaintiffs applied for approval of their proposed site plan, "tourist/guest houses" were a permitted use in the zone where the property is located, but "hotels" were not a permitted use. This zoning remains in effect at the present time.
During the hearing on plaintiffs' application, some members of the Planning Board expressed concern that plaintiffs' proposed development would be a hotel, but plaintiffs reassured the Board that their business would be simply a bed and breakfast that would fall within the zoning ordinance's definition of a "tourist/guest house." At one point during the hearing, a Board member had the following colloquy with plaintiffs' counsel:
[Board member]: . . . I just wondered what your definition of a hotel versus a --
[Plaintiffs' counsel]: We don't . . . intend to -- this is designed to be a bed and breakfast inn, and it's recognized under your ordinances historically and as spelled out. You know, is it a hotel under some definitions? Absolutely.
[Board member]: Well, . . . I could buy . . . the bed and breakfast with the original building, but with this addition going on, you know, . . . I think we're cutting a real fine line here, and I understand it is your latitude to call it a bed and breakfast, but it --
[Plaintiffs' counsel]: To me it's a bed and breakfast.
[Board member]: -- [T]o me it's a hotel. ...