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Kelley v. Morris County Board of Construction Appeals


July 22, 2008


On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1110-07.

Per curiam.


Argued July 8, 2008

Before Judges Parker and Gilroy.

Plaintiff Tucker M. Kelley appeals from the December 3, 2007 order of the Law Division, which affirmed the March 22, 2007 decision of the Morris County Board of Construction Appeals (Board), "uphold[ing] the Notice of Violation and Order to Terminate and the Notice and Order of Penalty" issued by the Township of Rockaway Construction Official on September 28, 2006. We affirm in part; reverse in part; and remand to the Board for further proceedings consistent with this opinion.

Plaintiff is the owner of property known and designated as Block 30503, Lot 12 in the Township of Rockaway (the Property). Under the existing zoning regulations, only one principal use is permitted on the Property. Contrary to the zoning regulations, the Property contains two residential structures: a single-family dwelling and a carriage house. The carriage house formerly contained a garage and a one-bedroom apartment and is the subject of this action.

On November 30, 1999, plaintiff filed an application with the Rockaway Township Building Department (Building Department) for a construction permit to renovate the carriage house. In conjunction with the application, plaintiff submitted construction plans dated November 16, 1999. The first page depicts proposed architectural drawings of each of the four sides of the carriage house. The drawing designated "rear elevation" depicts an overhead garage door on the right side of the rear portion of the carriage house with a pedestrian doorway located immediately to its left.*fn1

The second page contains construction plans for the first and second floors. The diagram designated "first floor" shows a proposed garage eighteen-foot-ten-inch long by ten-foot wide, with an overhead garage door located at the rear of the structure. The drawing also depicts a proposed dining room and kitchen on the first floor. The second floor diagram depicts a bedroom, living room, bathroom, and an outside deck. The plans do not reference the installation of central air conditioning. In addition to the construction permit, various sub-code permits were issued as required by the State Uniform Construction Code Act (UCC).*fn2

Plaintiff applied to the Building Department for a certificate of occupancy (C/O), describing the work performed as: "rebuild second story of dwelling."*fn3 The printed application form for the C/O contains the following provision above plaintiff's signature: "A set of 'As Built' or amended drawings is required if the building or structure deviates from the approved plans filed with the construction permit. Use space below to describe any deviations from approved plans[.]" A second provision immediately above the signature line provides in pertinent part: "I hereby attest that to the best of my knowledge, all work has been completed in accordance with the approved plans, permit and Regulations." On November 16, 2000, a C/O was issued for the carriage house signed by Andrew Sanfillippo as Construction Official.

On September 26, 2006, Dennis Creran, a Township building inspector and zoning officer, made an inspection of the exterior of the carriage house. Creran's inspection disclosed that the structure had not been remodeled in accordance with the building plans submitted by plaintiff at the time the construction permit was issued. The overhead garage door had not been installed on the rear of the premises and the pedestrian doorway was more centrally located than depicted on the plans.

On September 28, 2006, Sanfillippo issued plaintiff a Notice of Violation and Order to Terminate (NOV), stating in pertinent part that plaintiff was in violation of the UCC and the regulations promulgated thereunder: "[N.J.A.C.] 5:23-2.14 converted garage to living space/air conditioning unit done without a permit." The NOV directed plaintiff to terminate the violations on or before October 13, 2006. On the same day that Sanfillippo issued the NOV, he also issued plaintiff a Notice of Penalty (NOP), which stated in relevant part: "On 09/26/06, you were found to be in violation of the [UCC] and Regulations promulgated thereunder, in that you . . . failed to obtain a construction permit . . . ." The NOP also directed plaintiff to pay a penalty in the amount of $500 for each violation, for a total penalty for $1,000, and informed plaintiff that for each week that any violations remained outstanding after October 13, 2006, he would be subject to an additional penalty of $500 per week until the violations were corrected.

On October 2, 2006, plaintiff filed an appeal from the two notices with the Board. The Board conducted a hearing on the appeal on January 25, 2007, and February 22, 2007. Testifying on behalf of the Township were Sanfillippo and Creran. Testifying on behalf of plaintiff were Raymond Witwick, a former sub-code inspector of the Township, and plaintiff.

Creran testified as follows. Creran made a visual inspection of the outside of the carriage house on September 26, 2006. After his inspection, he reviewed the building plans on file with the Building Department and confirmed that the carriage house had not been remodeled in accordance with the plans, as the overhead garage door had not been installed and the pedestrian doorway was more centrally located than depicted on the plans. He also observed a central air conditioning compressor on the Property, although the plans did not indicate that central air conditioning was to be installed in the carriage house, and no permit had been issued by the Building Department for the installation of the compressor. Moreover, his review of the Township's files failed to disclose that plaintiff had filed an amended set of plans depicting the carriage house as built.

Lastly, Creran testified that he had made an interior inspection of the premises on November 16, 2007. His inspection disclosed that the living room area on the second floor had been converted into a second bedroom, and that the garage area on the first floor had been converted into "living quarters" with a throw rug or mat on the floor, and contained a couch, television, and clothes closet.

Sanfillippo testified that he has been employed with the Township since 1987, first as a building inspector and zoning officer, then as the Acting Construction Official, and since 1999, as the Construction Official. Sanfillippo had accompanied Creran on the September 26, 2006 inspection of the outside of the carriage house, and confirmed Creran's testimony that the Township's file disclosed that the building had not been constructed in conformance with the original building plans. Sanfillippo stated that to have installed the central air conditioning compressor, plaintiff was required to have obtained an electrical permit, but none was issued. Based on his review of the Township's files, he issued the NOV and NOP.

After the Township rested, plaintiff called Witwick as his witness. Witwick was employed by the Township as a plumbing and electrical sub-code official from December 30, 1999, through October 16, 2000. He was also licensed by the State as a construction official and authorized to perform building and fire inspections. Pursuant to an understanding with Hartman, the then Construction Official, Witwick also performed minor building inspections.

Witwick performed all the required inspections of the carriage house. Witwick confirmed that he had inspected the air conditioning for the carriage house and found that it was properly installed, but without the required permit. He told plaintiff to obtain the necessary permit and pay the required ten dollar fee. Witwick stated that it was typical for his department to find minor deficiencies on inspection and still approve the construction, subject to the owner or contractor following up on the paperwork after the inspection.

As to the garage door, Witwick stated that he was aware that the garage door had not been installed and that Gerald Hartman, the construction official at the time of inspection, had authorized the change during a three-person conference among Hartman, plaintiff, and himself on an unspecified date. Lastly, Witwick testified that on plaintiff's request he had inspected the carriage house on November 12, 2006, and did not find any structural changes since the issuance of the C/O on November 16, 2000.

Plaintiff testified next,*fn4 and confirmed that the building plans submitted to the Building Department in support of his application for the construction permit required the installation of the overhead garage door, and the installation of the pedestrian doorway at a different location, and did not include central air conditioning. He confirmed that the air conditioning compressor had been installed without a permit and that he had been instructed by Witwick to file an application with the appropriate fee, and to obtain the necessary permit, but never did.

As to the omission of the garage door, plaintiff stated that he had received verbal permission from Hartman not to install the door. Plaintiff acknowledged, however, that he was instructed by Hartman that the area designated as a garage on the plans could only be used for storage, not as living space.

Plaintiff denied that any changes were made without the knowledge of the Building Department, and that the omission of the garage door was plainly visible to the traveling public and to the local building inspectors when they inspected the improvements at the carriage house as well as improvements on the main house in 2002. Moreover, on October 6, 2001, the Township issued him a permit to reconstruct a driveway at the carriage house, and no one raised any questions concerning the omission of the garage door. When asked why he never filed "as built" plans to show the structure as completed, plaintiff replied that he had received verbal permission from Hartman to omit the garage door and he was never requested to file any revised plans before receiving the C/O from Sanfillippo on November 16, 2000.

Concerning the area designated on the plans as the garage, plaintiff testified that the area described by Creran as living quarters was only a storage area of approximately eight feet by nine feet. The balance of the area is divided from the storage room and used only for placement of the structure's furnace, washer, dryer, and hot water heater.

On March 22, 2007, the Board issued its written decision affirming the NOP and NOV issued to plaintiff, concluding that "[t]he changes made to the building during the course of the construction project were not reflected in the permit application or made known by application for certificate of occupancy contrary to the provisions of N.J.A.C. 5:23-2.24 et seq." In reaching its decision, the Board found, among other facts, that: 1) "[t]he Owner acknowledges that substantive deviations were made during the construction in that an opening and door were not installed so as to create a garage, and that a central air conditioning unit was installed"; 2) "[t]he Municipal Inspector approved the construction"; 3) "[t]he Municipal Inspector requested that the electrical section of the permit be updated to include the air conditioning compressor"; 4) "[t]he electrical section of the permit was not updated to reflect the air conditioning compressor as requested"; 5) "[n]either the Owner nor the Municipal Inspector identified the deviations made during the construction to the Construction Official prior to the issuance of the Certificate of Occupancy verbally or by submission of the Application or for [the] Certificate"; and 6) "[t]he use of the building reflects finished living space on the first floor where the plans specify a one[-]car garage to have been provided."

On April 20, 2007, plaintiff filed his complaint in lieu of prerogative writs, seeking a reversal of the Board's decision, contending that the Board had "acted arbitrarily and capriciously in the conduct of [its] hearing and in the reaching of [its] decision in this matter," asserting that the Board's decision "was contrary to the evidence presented." Following a trial de novo on the record, the judge issued an oral decision on November 16, 2007, dismissing plaintiff's complaint, concluding that the Board had not acted arbitrarily, capriciously, or unreasonably, finding the Board's decision was based on credible evidence in the record. A confirming order was entered on December 3, 2007. On January 18, 2008, an order was entered staying the order of December 3, 2007, pending appeal.

On appeal, plaintiff argues:









Any party to an action before a construction board of appeals may appeal the board's decision to the Law Division via complaint in lieu of prerogative writs because the board, although a State agency established and organized under the Department of Community Affairs, only possesses county-wide jurisdiction. N.J.A.C. 5:23A-2(b); Bell v. Twp. of Bass River, 196 N.J. Super. 304, 310 (Law Div. 1984); see also Walsh Trucking Co. v. Hackensack Meadowlands Dist. Constr., 240 N.J. Super. 525, 528 (App. Div. 1990). A trial court's standard of review on an appeal from a decision of a construction board of appeals is limited. Bell, supra, 196 N.J. Super. at 312. A "[c]court ordinarily should not disturb an administrative agency's determinations or findings unless there is a clear finding that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008).

Accordingly, the court's function is not "'to weigh the evidence, to determine the credibility of witnesses, to draw inferences and conclusions from the evidence and to resolve conflicts therein.'" Bell, supra, 196 N.J. Super. at 312 (quoting Mead Johnson & Co. v. S. Plainfield, 95 N.J. Super. 455, 466-67 (App. Div. 1967)). Simply stated, a court's review of a final agency decision and of an appeal in a non-jury case is the same, that is, "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros, 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Our review of an appeal from a decision of the trial court is the same.

In Points I and II, plaintiff challenges the adequacy of the proceedings before the Board. Plaintiff argues that the Township is estopped from instituting enforcement actions against him six years post-inspection of the Property and the issuance of the C/O. Plaintiff contends that Witwick and Hartman had authorized the construction changes pertaining to his omission to install the overhead garage door, and to relocate the pedestrian doorway so as to be more centrally located on the rear of the building. However, plaintiff acknowledges that he was instructed: 1) that the area designated on the original building plans as a garage could only be used for storage, not living quarters; and 2) to file for and pay the appropriate fee for an electrical permit required for the installation of the central air conditioning compressor.

Plaintiff asserts that the Board improperly prohibited him from introducing evidence of Hartman's verbal permission to remodel the carriage house at variance with the building plans on the grounds that Hartman's statements violated the "hearsay rule" because the Board's proceedings are not subject to the Rules of Evidence. Under the limited facts of this matter, we agree.

Equitable estoppel has been defined as "the effect of the voluntary conduct of a party whereby he is absolutely precluded, both . . . from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worst . . . ." Heuer v. Heuer, 152 N.J. 226, 227 (1998) (citation and internal quotation omitted). "The doctrine is 'designed to prevent a party's disavowal of previous conduct if such repudiation' would not be responsive to the demands of 'justice and good conscience.'" Ibid. (quoting Carlsen v. Masters, Mates & Pilots Pension Plan Trust, 80 N.J. 334, 339 (1979)). Accordingly, without a plaintiff's good faith reliance on a defendant's actions or omissions, the doctrine will not apply. Grasso v. Borough of Spring Lake Heights, 375 N.J. Super. 41, 47 (App. Div. 2004).

The doctrine is "rarely invoked against [] municipalit[ies]." Ibid. However, the doctrine will be applied against a governmental agency when appropriate, unless to do so would "'prejudice essential governmental function.'" Wood v. Borough of Wildwood Crest, 319 N.J. Super. 650, 656 (App. Div. 1999) (quoting Vogt v. Borough of Belmar, 14 N.J. 195, 205 (1954)).

In support of his contention that the Township is estopped, plaintiff attempted to introduce statements that Hartman made to himself and Witwick, on which Witwick had relied before signing off on the final inspection without the installation of the garage door. The Board Chairman prohibited plaintiff from eliciting Hartman's statements through plaintiff's examination of Witwick on the basis that the statements constituted hearsay. Although some evidence concerning Hartman's instructions to Witwick were introduced later on in the proceedings, either in answering questions of the Township's counsel or the Board, it is clear that plaintiff did not fully pursue his questioning of Witwick, thereby preventing the Board from ascertaining the full content of the statements made by Hartman and the reasons why he gave permission to omit the overhead garage door.

[U]nfortunately, Mr. Spillane [a Board member], the Hearsay Rule . . . doesn't come into effect here based on conversations that were between Mr. Witwick, the construction official at the time, and myself, that would . . . alleviate a lot of this. So, because I can't state any of those facts, I can't ask the questions. I can't do anything concerning that. I can't make anybody aware as to what transpired concerning the construction of this home.

Rules of Evidence do not apply to administrative hearings. Weston v. State, 60 N.J. 36, 50, 51 (1972). Accordingly, administrative agencies frequently admit hearsay evidence at their hearings. In re Toth, 175 N.J. Super. 254, 262 (App. Div. 1980). Moreover, even if the Rules of Evidence applied to the proceeding before the Board, the statements should have been admitted as an exception to the hearsay rule pursuant to N.J.R.E. 803(b)(4), that is, "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship."

It is undisputed that the "incidents of fairness which underlie procedural due process" applies to administrative proceedings. Bechler v. Parsekian, 36 N.J. 242, 256 (1961). "Administrative due process is generally satisfied if 'the parties had adequate notice, a chance to know opposing evidence, and the opportunity to present evidence and argument in response . . . ."

Moore v. Dep't of Corr., 335 N.J. Super. 103, 108 (App. Div. 2000) (quoting In re Dep't of Ins.'s Order Nos. A-89-119 & A-90-125, 129 N.J. 365, 382 (1992)). Accordingly, the Board was required to hold a hearing "which conformed with the procedural requirements which govern quasi-judicial proceedings." In re Walsh Trucking Occupancy & Sprinkler Sys., 215 N.J. Super. 222, 230-31 (App. Div. 1987). "These requirements include an opportunity to challenge the evidence supporting" the Township's action. Id. at 231.

We are satisfied from a review of the record that several Board members may have voted differently had they been permitted to consider Hartman's statements. However, they were instructed that Hartman's statements could not be considered during their deliberative process, thereby limiting their decision only to whether the carriage house in its finished state conformed with the building plans. The Board members did not weigh plaintiff's and Witwick's testimonies that Hartman had granted plaintiff verbal permission to alter the building plans. This appears also to be what the trial judge referenced when he concluded:

First, it's uncontroverted that . . . Mr. Kelley and the municipal inspector did not make any written notification of any deviations of the construction prior to the issuance of the Certificate of Occupancy. The Board heard testimony and determined that that didn't happen verbally either in consideration of the evidence that they had before it. I cannot find that their decision was arbitrary in that regard.

. . . If Mr. Kelley had some evidence in writing, either in the application or subsequently, with respect to these particular issues, as to the modification and clearly in the application, and the town issued the C/O, the Board, I'm sure, would have had a totally different view of this particular case in this regard.

But we cannot lose sight of the fact that I'm reviewing the Board's decision I cannot substitute my judgment for theirs, and the Board, in their decision, indicates that "neither the owner nor the municipal inspector identified the deviations made during the construction to the construction official prior to the issuance of the Certificate of Occupancy verbally or by submission of the application for certificate, and that the building plans deviate from what was allowed."

There's evidence in the record to support that decision. [(Emphasis added).]

We conclude that plaintiff was denied the right to fully contest the violations asserted by the Township in the hearing before the Board because of the Board's action prohibiting plaintiff from introducing evidence of statements made by the Township's former construction official, granting him permission to alter the building plans. We do not express any opinion on whether such evidence would form a basis to apply equitable estoppel against the Township. We only determine that plaintiff was entitled, as a matter of administrative due process, to present evidence of Hartman's statements. Nor do we express any opinion on whether the present use of the premises as determined by the Board constitutes an unlawful expansion of a non-conforming use.

Accordingly, we reverse that part of the order of the Law Division, which affirmed the decision of the Board determining that plaintiff had not constructed the carriage house in conformance with the building plans by failing to install the garage door. We remand that issue to the Board to reconsider plaintiff's appeal from the NOV and NOP charging him with the aforesaid violation of the UCC.

On remand, the Board may rely on the transcripts of the testimony of the witnesses from the prior hearing. The Board shall permit the parties to supplement the evidence, concerning the statements allegedly made by Hartman, on which plaintiff purportedly relied when he failed to install the overhead door. Plaintiff shall be permitted to testify as to the circumstances that surrounded the conversation during which Hartman's statements were made, including whether the statements were made before or after plaintiff finished remodeling the carriage house without the garage door.

On remand, even if the Board determines that the Township was not estopped from enforcing the UCC for the violations concerning the overhead garage door and the pedestrian door, if the Board concludes that Hartman did, in fact, make the statements as asserted by plaintiff, the Board may consider those statements in determining a fair and appropriate penalty.

We affirm that part of the order of the Law Division, which affirmed the Board's decision determining that plaintiff had violated the UCC by failing to obtain a permit for the installation of the central air conditioning. The facts are undisputed that no permit was obtained by the Township for the air conditioning; the air conditioning was installed; the inspector found the air conditioning to be properly installed but directed plaintiff to obtain the permit and pay the required fee; and plaintiff failed to do so.

Affirmed in part; reversed in part; and remanded to the Morris County Board of Construction Appeals for further proceedings in accordance with this opinion.

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