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Tomeo v. Township of Liberty

February 23, 2009

STEFANO TOMEO AND CYNTHIA REEVES TOMEO, PLAINTIFFS-RESPONDENTS,
v.
TOWNSHIP OF LIBERTY, TOWNSHIP OF LIBERTY BOARD OF ADJUSTMENT AND LIBERTY TOWNSHIP ZONING OFFICER ERIC SNYDER, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-543-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: January 7, 2009

Before Judges Axelrad, Lihotz and Messano.

Defendants, Township of Liberty, Township of Liberty Board of Adjustment, and Liberty Township Zoning Officer Eric Snyder (collectively "Board"), appeal from a Law Division order that reversed the Board's decision denying plaintiffs' application for a height variance, N.J.S.A. 40:55D-70c(1)(c), to construct a two-story detached garage as an accessory structure in a residential zone. The Board challenges Judge John J. Coyle, Jr.'s findings that its actions were arbitrary, capricious, and unreasonable, expressed in a comprehensive twenty-two page written opinion dated January 22, 2008. We affirm substantially for the reasons expressed by the trial court.

Plaintiffs own a three-acre parcel in Liberty Township, known as 10 Mountaintop Drive, Block 11, Lot 42.36, located in a residential zone. The property was developed with a single family home with an attached garage. Plaintiff Stefano Tomeo*fn1 desired to build a detached two-story garage, consisting of three bays on the first floor for storage of his automobiles and storage space on the second floor for his automobile memorabilia. On May 18, 2004, plaintiff received a zoning permit for the accessory structure from Zoning Officer Snyder, and based on that, a construction permit the same day. According to plaintiff's testimony, Snyder specifically told him a week before that he could build a detached garage thirty-five feet high, and in reliance plaintiff prepared plans which he showed to Snyder and the construction official, depicting a building approximately twenty-nine feet from grade. The township ordinance limits accessory structures, such as detached garages, to a maximum height of sixteen feet.

Plaintiff began constructing the garage. On September 7, 2004, Snyder visited the property pursuant to a neighbor's complaint about the height of the building. By then, the building was slightly under sixteen feet, far in excess of what was needed for a one-story garage, even though plaintiff had not yet begun construction of the second floor. Snyder hand-delivered a letter to plaintiff later that day, instructing him to stop work and either prepare revised conforming plans or apply for a variance. According to plaintiff, upon advice of counsel, he completed the second floor and placed the roof on the building to protect his investment, partially completing the two-story garage around the end of September.

After receipt of summonses for zoning violations and agreement to stay the municipal court proceedings, on February 8, 2005, plaintiff filed an application with the Board for a "c" variance from the height restrictions of an accessory structure. N.J.S.A. 40:55D-70c(1)(c). The Board held hearings on May 24, 2005 and August 30, 2005, during which plaintiff and Snyder testified, along with several objectors. Plaintiff explained his reliance on the zoning officer's representation as to the height requirement for the accessory use, Snyder's review of his plans in issuing the permit, and his expenditure of money to construct the garage. Plaintiff referenced the plans and described the structure, introducing photographs, and identifying the sixteen-foot mark that would have been permitted by ordinance. He also testified about buffering trees he planted between the garage and the sideline of his property. In response to comments by the objectors, plaintiff assured that the garage would not be used for commercial purposes but only for his personal car collection and related memorabilia.

Snyder testified that plaintiff showed him a map of the property and showed him where he wanted to put the garage, but Snyder claimed he did not see the plans. Although they talked about accessory uses, Snyder did not recall having any conversation with plaintiff regarding height.

The Board members made no comments about plaintiffs' application prior to unanimously denying the variance. The Board's September 27, 2005 memorializing resolution stated that plaintiffs failed to meet the "peculiar and exceptional practical difficulties" or "undue hardship" and other requirements of N.J.S.A. 40:55D-70c(1), and the listed negative criteria of N.J.S.A. 40:55D-70d. The resolution continued:

Without deciding whether the zoning officer had legal authority to issue a stop work order, the Board concluded from the testimony and evidence submitted, that the Applicant was on notice that the structure was in violation of the local zoning ordinance. The testimony further showed that as of September 7, 200[4], when the Applicant was advised that the proposed structure was in violation of the local height ordinance, that the Applicant had not begun building the second floor of the structure.

Although the Applicant argued a financial hardship due to his reliance upon the zoning and building permits that were issued, the Board concluded that it was a self-inflicted hardship that failed to warrant the granting of the requested variance.

Plaintiffs challenged the Board's decision in an action in lieu of prerogative writs, asserting municipal estoppel (First Count) and appeal from variance denial (Second Count). They emphasized that plaintiff prepared plans and spent substantial money to construct a specific type of building in good faith reliance upon the inaccurate information provided by the zoning officer and the issuance of municipal permits, and acted reasonably under the circumstances after receipt of Snyder's notice. Plaintiffs argued the Board failed to consider and analyze their claims of detrimental reliance and financial hardship, focusing solely on the fact they continued construction after September 7, 2004.

The Board characterized the hardship as self-created, which did not justify a variance. The Board argued that plaintiff did not act in good faith and failed to mitigate damages upon receipt ...


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