On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-8244-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner and Gilroy.
Plaintiffs George K. Miller, Jr. and Debra Miller appeal from an August 6, 2007 order of the trial court, dismissing their action in lieu of prerogative writs challenging a decision of the Margate Zoning Board of Adjustment which granted two variances to John Scott Abbott and Joanne Abbott.*fn1 We reverse.
This case concerns two portions of the Margate zoning ordinance. One section prohibits certain outside staircases: "There shall be no outdoor stairs providing access to second stories in single-family zones." City of Margate Code § 175-30(C)(7). The other section regulates the height and setback requirements for decks:
Decks and patios of 18 inches above grade must meet the required yard setbacks for principal buildings. Decks 10 inches or less may be located anywhere in the rear yard. Decks above 10 inches and up to 18 inches shall be setback at least three feet from the property line in the rear yard. [City of Margate Code § 175-33(D)(3).]
The dispute arose from the following factual background. The Abbotts and the Millers own adjacent waterfront properties located along the Sunset Canal in Margate City, New Jersey. In February 1987, the Margate City Planning Board approved the Abbotts' application for a minor subdivision approval and a "C" variance in order to move the lot line to enlarge their property and eventually build a home. In 1988, the Abbotts obtained a variance for the same property to construct a staircase to their rear deck, conditioned upon the Abbotts not constructing any obstacles which would block the Millers' water view.
Approximately sixteen years later, in 2005, the Abbotts planned to replace the rotting bulkhead located at the rear of their property facing the canal. They also wanted to build a floating and a fixed dock and significantly modify their existing rear deck. The bulkhead and docks required a permit from the Department of Environmental Protection (DEP), and approval from the Margate City governing body following a wharf hearing. The Abbotts obtained both of those approvals.
The Abbotts then secured a building permit to construct the docks and the bulkhead, but they did not obtain a permit to reconstruct the deck. Nonetheless, they proceeded with the entire project. Construction began in May of 2005. By letter dated August 25, 2005, Margate Zoning Officer Rubin concluded that the construction violated the Margate zoning code. Specifically, the rear deck was not being built in conformity with the section of the Land Use Ordinance, § 170-33D(3), requiring a deck that exceeds 18 inches above grade*fn2 to be set back ten feet behind the bulkhead. Rubin opined that the proper grade from which to measure "would be the logical rear yard grade prior to almost two decades of erosion of dirt under the old deck." In response, the Abbotts sent Rubin a letter contending that they raised the grade on their property, and the measurement should thus be taken from this newly increased grade. Rubin, by letter dated September 7, 2005, rejected the Abbotts' contention and reaffirmed his initial position.
On September 13, 2005, the Abbotts appealed Rubin's determination to the Board of Adjustment. While this appeal was pending, the Margate City Solicitor sent a letter dated October 4, 2005, to one of the City commissioners, the City Engineer, the Land Use Administrator, and the Code Official, directing the Code Official to "rescind the stop work order" on the Abbotts' project. Her letter did not specify the source of her authority to issue such an order. A construction permit was issued for the deck on October 13, 2005, and the Abbotts speedily completed construction of the deck. That same day, the City Solicitor sent a follow up letter to all the parties withdrawing from the matter in order to avoid any appearance of impropriety, as she was the Ventnor Municipal Court Judge and Mr. Abbott was the Ventnor City Solicitor.
Following the issuance of the construction permit, the Abbotts withdrew their appeal to the Board. On December 1, 2005, the City issued a Notice and Order of Penalty against the Abbotts, for violations of the State Uniform Construction Code Act and Regulations. A stop work order dated December 5, 2005, followed.
The next day, December 6, 2005, the Abbotts filed a complaint in lieu of prerogative writs in the Law Division. The Abbotts moved for summary judgment on Counts 1 and 2, which sought the following relief: (1) an order compelling the City to permit the completion of the bulkhead, dock, and deck as built, (2) an order compelling the City to reveal their basis for concluding that the height of the deck should be measured "from a previous grade which no longer exists and [why it] is not permitted to be measured from the current grade," (3) an order finding the notice and order of penalty void and of no effect, and (4) damages and costs.
In a written opinion dated January 31, 2006, the trial judge upheld Zoning Officer Rubin's definition of grade, concluding that it was "logical and clearly consistent with the intent of the Zoning Ordinance." According to her written opinion, Abbott's proposed interpretation of the ordinance, as meaning that the person constructing a deck can unilaterally and arbitrarily increase the existing grade, renders meaningless the intent of the Ordinance and also provides no notice to neighbors as to what may be constructed next door or up the street without seeking appropriate approvals. Rubin is correct, the higher the deck, the greater the impact on surrounding neighbors.
However, she restrained the City "from enforcing any penalties or other sanctions against [the Abbotts] pending application to the Zoning Board of Adjustment for approvals for the upland portion of their deck," or the portion that had been constructed above the height permitted by the Ordinance.
On March 20, 2006, the Abbotts applied to the Board for "any and all variance relief as may be deemed necessary so as to allow the applicants to continue the existence of their deck constructed to the rear of their bayfront home," (a C variance). In addition, the Abbotts sought a variance for the construction of a spiral staircase to go from the first floor of the deck to the second floor deck (a D variance).
A hearing was held before the Board on April 5, 2006. John Scott Abbott (Abbott), who is an experienced land use attorney, represented himself and his wife.
At the hearing, Zoning Officer Rubin initially outlined the current violations on the Abbotts' property.
The subject property is a two-story single-family house on a lot of 65 by 100 feet, of which about 72 feet is uplands and the balance is in the Sunset Canal. The applicants recently raised the level of a portion of their rear first floor deck up to approximately the level of the other portions of that deck which were previously higher. The raised up portions are the subject of this application.
The deck enlargements were constructed at elevation 8.98 feet above mean sea level datum. The Land Development Ordinance reads at 170-33D(3), quote "Decks and patios over 18 inches above grade must meet the required yard setbacks for principal buildings," . . .
Several months ago, the building inspector asked me to determine if the deck, under construction at the time, conformed to this requirement. Field inspection at that time indicated a greatly eroded rear yard under the decks, probably based on bulkhead deterioration combined with rearward pitch of lot grade, toward the canal. To establish grade, then, I had to determine, in fairness to the Abbotts, where the grade was before 17 or more years of erosion had taken its toll. I determined that the line of mortar exposed on the side wall of the house was the location of the side concrete pathway, fell a few inches by natural erosion, as well. This line, called the "cream line" by the City Engineer, being where the path was when the house was built, is also the logical grade of the land under the rear yard deckage.
I had the City Engineer shoot the elevation of the cream line, and it was certified at 6.37 feet above sea level. Since the deck was built at 8.98 feet and the cream line is 6.37 feet, I determined that the deck was built 2.61 feet above grade, which is 31.32 inches above grade, which in turn is 13.32 inches above the allowance of 18 inches above grade.
Rubin had no objection to the spiral staircase, which he believed would have no negative impact on the Abbotts' neighbors, and would "likely improve the amenity and use of the waterfront by the [Abbotts]."
The applicants submitted the testimony of Abbott and an expert geologist, Dr. Stuart Farrell. According to Abbott, he decided to build a new bulkhead the previous year because the old one had rotted. After he obtained the necessary approvals, construction of the bulkhead began in May. During construction, the bulkhead began to "shift and move" since it was rotted.
Abbott explained that he decided to raise the bulkhead and re-grade the rear yard in August due to a "severe [drainage] problem in the rear of our property." He explained that his home was among the oldest in Margate. As such, the bulkheads "dipped down to the bay," which would cause water to flood underneath the porch during storms. Abbott also explained that although he raised the level of the deck, he also lowered the existing fifty-foot wide rear porch by two feet and removed a four-and-a-half foot high fence. He contended that the net result actually improved the Millers' view from their home.
At the conclusion of his testimony, Abbott gave the following summary.
Guys, that's basically it. The justification I have for my topographical and my raising my elevation, I have a unique piece of ground. It's bay front. My ground dipped down towards the bay. I have corrected it. Margate has not yet gotten to the point where they're mandating, but they should, that everybody raise their bulkheads because if they ultimately did that . . .
[y]ou can certainly mitigate flooding . . .
Common sense tells you you want your rain water to roll to the street, not stagnant and ...