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McGovern v. Borough of Harvey Cedars

June 19, 2008

DONALD MCGOVERN, PLAINTIFF-APPELLANT,
v.
BOROUGH OF HARVEY CEDARS, BOARD OF COMMISSIONERS OF THE BOROUGH OF HARVEY CEDARS, AND JOHN GERKENS, IN HIS OFFICIAL CAPACITY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-3222-06.

The opinion of the court was delivered by: S.L. Reisner, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 19, 2008

Before Judges S.L. Reisner, Gilroy and Baxter.

Plaintiff Donald McGovern appeals from a July 20, 2007 order of the Law Division dismissing his complaint in lieu of prerogative writs against defendants Borough of Harvey Cedars, the Borough's Board of Commissioners, and its Zoning Officer John Gerkens. We affirm, concluding that a municipal ordinance banning construction close to the water's edge on Long Beach Island is constitutional and is not preempted by the Coastal Area Facilities Review Act (CAFRA), N.J.S.A. 13:19-1 to -21.

I.

These are the most pertinent facts. Following a disastrous storm in 1962 which devastated Long Beach Island, the Borough of Harvey Cedars adopted an ordinance (ordinance 10-2.2 or the building line ordinance) precluding any construction east of a defined geographic line adjacent to the ocean-side perimeter of the town. Borough of Harvey Cedars Ordinances, Chapter 10-2.2, Waterfront Regulations.*fn1 See Spiegle v. Beach Haven, 46 N.J. 479 (1966)(Spiegle I); Spiegle v. Beach Haven, 116 N.J. Super. 148, 154-55 (App. Div. 1971)(Spiegle II). The ordinance, which was adopted by virtually all of the other towns on Long Beach Island as well, was intended "to protect the health and safety of residents, as well as the protection of property."*fn2 By its terms, the ordinance was to be enforced by the Borough's building inspector. Waterfront Regulations § 10-6.2. In 1973, the Legislature adopted CAFRA, which was also aimed at protecting the State's shore area, including the dunes. See Bubis v. Kassin, 184 N.J. 612, 629-30 (2005).

Decades later, in 2003, plaintiff sought to construct a ten-by-sixty foot lap pool between his oceanfront house and the ocean in Harvey Cedars, but he was unable to get permission due to the building line ordinance.*fn3 In pursuit of his goal, plaintiff went to the Borough's zoning office to obtain the necessary municipal zoning permit. As described in plaintiff's July 25, 2004 letter to the Board of Commissioners, the Zoning Office advised me that this project was problematic because the entire pool would be East of the building line, even though there is sufficient room for all town swimming pool requirements to be met. They also informed me that I would need a CAFRA Approval from the State; so I decided to pursue this first.

Although he was already on notice that the pool project would violate the building line ordinance, plaintiff nonetheless applied for and, on May 24, 2004, obtained a CAFRA permit for the construction of the pool.*fn4 Paragraph nine of the permit specified that it did not relieve plaintiff of the obligation to comply with local regulations. Plaintiff returned to the Borough's zoning office with his CAFRA permit to apply for a municipal zoning permit for the pool. He was directed to contact the Board of Commissioners, as the matter remained outside of the zoning office's jurisdiction.

Plaintiff attended the June 17, 2004 meeting of the Zoning Board of Adjustment and raised the issue of his obtaining a municipal zoning permit for the construction of the pool. The Zoning Board Solicitor indicated that the Board lacked the authority to answer plaintiff's inquiry as dune protection was under the municipality's police powers.

On July 25, 2004, plaintiff wrote to the Board of Commissioners requesting approval to proceed with the pool project. Consistent with what plaintiff had been told when he first approached the Zoning Board, the municipal attorney wrote back to plaintiff advising him that no construction was permitted beyond the "building line" and directing plaintiff's attention to ordinance 10-2.2. Counsel added "that there is no provision for a variance, deviation or waiver." Municipal counsel also advised plaintiff that the building inspector was responsible for enforcing the ordinance. Plaintiff responded that the proposed pool would not infringe upon the beach dune area protected by the ordinance. On August 11, 2005, plaintiff's counsel wrote to the Board of Commissioners raising the issue of preemption by CAFRA.

Plaintiff's counsel sent a letter dated November 21, 2005, to the zoning office asserting that the proposed pool complied with all zoning requirements and that the only open issue was the applicability of ordinance 10-2.2. In other words, plaintiff apparently sought a zoning permit in order to complete his preparations for a lawsuit challenging the ordinance, by establishing that the pool otherwise complied with local zoning. The zoning office responded that plaintiff would be required to complete an application for a zoning permit and pay the $75 application fee in order for the office to perform an evaluation. Thereafter, on March 8, 2006, plaintiff filed his application for a zoning permit and paid the fee.

On March 15, 2006, Zoning Officer Gerkens denied plaintiff's application for a zoning permit, because it would violate the building line ordinance as well as a setback portion of the zoning ordinance. Gerkens explained that the proposed construction was prohibited as it would occur "eastward of the 'building line'" and that "the pool equipment [is] not permitted within the yard setbacks." In a June 16, 2006 letter, Gerkens further explained that the permit was denied based upon "two areas of non-compliance with our [zoning] ordinances of Chapter 13."

Plaintiff corrected the Chapter 13 setback violations and again requested issuance of a zoning permit. On July 18, 2006, the municipal attorney sent plaintiff's counsel another letter on behalf of the governing body stating that the permit still could not be issued because the proposed pool was in violation of the building line ordinance. In response to plaintiff's request for a formal grant or denial of his zoning permit application, the municipal attorney wrote to him once again on July 27, 2006, stating that although plaintiff met all zoning requirements, the project was not eligible for a zoning permit "because the swimming pool would be located east of the building line." By letter dated August 29, 2006, municipal counsel further indicated that the zoning board had no jurisdiction with respect to the ordinance and there was "no basis in the . . .

[o]rdinance for an appeal to the governing body."

In response, plaintiff filed an action in lieu of prerogative writs against the Borough and its officials. In denying plaintiff's request for relief, Judge Oles held that that CAFRA did not pre-empt ordinance 10-2.2. Noting that the ordinance was enacted in response to the devastating storm of 1962, the judge found that "there is no question" that it "protects and promotes health, safety and the general welfare of the community." He found ...


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