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Palermo v. Zoning Board of Adjustment of the Township of Middletown


May 29, 2009


On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1160-08.

Per curiam.


Argued April 28, 2009

Before Judges Skillman and Grall.

Plaintiffs Robert and Patricia Ward Palermo own property in the Township of Middletown. They sought and obtained an interpretation of a zoning ordinance from defendant Zoning Board of Adjustment of the Township of Middletown (Board), as authorized by N.J.S.A. 40:55D-70(b). The Palermos' question was whether a tennis court they converted from that use to a "patio" was exempt from the calculation of lot coverage under Middletown's ordinance. The Board concluded it was not, and the Palermos challenged the Board's interpretation in an action in lieu of prerogative writs. The trial court reversed, and the Board appeals from that order.

The facts are not disputed. The Palermos' property is in a residential zone in which the maximum lot coverage authorized is fifteen percent. Their 1.85-acre lot has five sides of unequal length. The structures are situated toward the rear of the lot, separated from the street by a wooded area and reached by way of a winding driveway.

The property has a two-story frame house with an attached two-car garage and an area for parking at the end of the driveway near the house. To the rear of and adjoining the house, there is a 710 square-foot patio and walkways connecting that patio and a 920 square-foot patio surrounding their pool. The 7200 square-foot tennis court is situated approximately forty feet from the house and to the left of the house and pool. There is a walkway leading from the tennis court to the one connecting the house and pool.

The Palermos applied for a development permit authorizing construction of an addition to their house. Because the lot coverage would exceed the limit, the zoning officer approved the Palermos' application for development on the condition that the tennis court be "dismantled and sodded/plant[ed] prior to requesting final building inspections for the addition."

Upon realization of work and expense entailed in removal of the tennis court, the Palermos considered other ways to bring their property into conformity with the lot coverage restriction. They did not seek a variance but sought to make superficial changes to the tennis court in order to have it "reclassified" as a patio and excluded from lot coverage. The stanchions and nets were removed from the court and the surrounding fence was lowered. A planter was erected on top of the playing area of the court, and the Palermos placed patio furniture on the exposed pavement around the perimeter of the planter. The area of the paved perimeter is 3155 square feet. The area of the first floor of the house and garage is 2993 square feet.

Although the zoning officer was initially receptive to the Palermos' plan to reclassify the tennis court as a patio, she ultimately denied a certificate of occupancy and directed the "surface of the court to be removed and landscaped as either grass or plantings." At that point, the Palermos asked the Board to interpret the ordinance.

Section 16-2.3 of the Middletown ordinances defines lot coverage to mean "the area of the lot covered by buildings and structures and accessory buildings or structures." Lot coverage also includes: parking areas and automobile access driveways and internal roadways, whether covered by an impervious or pervious material, patios associated with an in-ground or above-ground swimming pool, and all other impervious surfaces except for the following:

2. Unroofed patios not associated with an in-ground or above-ground swimming pool, terraces, decks and pedestrian walks which are accessory to a single family dwelling.

3. In-ground or above-ground swimming pool surface areas up to 800 square feet; the surface area of an in-ground or above-ground swimming pool above 800 square feet shall be considered as lot coverage. [Middletown, N.J. Code § 16-2.3 (emphasis omitted).]

The ordinance defines "patio" to mean:

[A]n area of land not used for receiving and storing material where the ground has been surfaced with construction material such as brick, stone, cement or lumber, which does not project above grade level by more than 18 inches and which is entirely uncovered by a roof or any superstructure.

The Board concluded that the ordinance could not be construed to exclude the Palermos' modified tennis court from lot coverage. The Board gave the following explanation.

In reviewing the Ordinances, the Board finds that the exceptions for patios [from lot coverage] are only intended for patios that are in close proximity to the home and associated with the home. Here, the modified tennis court is a substantial distance from the home and not a patio as intended by the Ordinance. The tennis court can be used [as] a tennis court in the future and still contains a substantial area of impervious coverage. The modifications proposed by the [Palermos] are completely contrary to the intent of the lot coverage ordinance. The Lot coverage ordinance is intended to limit the amount of impervious coverage on the lot. Here, the applicant proposes to keep the impervious coverage but change the use of the area. Lot coverage is not defined by use and applying the changed use to the exception would result in an absurd reading of the ordinances. Moreover, the intent of the Ordinance is not to permit the construction of large impervious areas and then cover them up and not count the area toward lot coverage. The [Palermos are] proposing a substantial amount of impervious coverage that is in clear violation of the Lot Coverage Ordinance.

The trial court rejected the Board's interpretation. The court deemed the ordinance to be clear and unambiguous and the Board's focus on the proximity of the converted tennis court to the house to be "unsupported by the language of the ordinance."

Interpretation of an ordinance is a question of law governed by established rules of statutory construction and our review is de novo. Bubis v. Kassin, 184 N.J. 612, 627 (2005); Twp. of Pennsauken v. Schad, 160 N.J. 156, 170 (1999). An ordinance "should be interpreted to 'effectuate the legislative intent in light of the language used and the objects sought to be achieved.'" Twp. of Pennsauken, supra, 160 N.J. at 170 (quoting Merin v. Maglaki, 126 N.J. 430, 435 (1992)). While the analysis begins with "an examination of the language of the ordinance," when it appears that the situation at issue was not contemplated or a literal construction would lead to absurd results, the interpretation should be "consonant with the probable intent of the draftsman." Ibid. (internal quotations omitted).

When applied to the Palermos' remodeled tennis court, the meaning of the relevant sections of the ordinance is far from clear.

Read in isolation, the definition of patio is not ambiguous. Ignoring the paved area of the tennis court covered by the planter, the definition encompasses the exposed paved area surrounding the Palermos' planter. That paved area is "not used for receiving and storing material," "has been surfaced with construction material," "does not project above grade level by more than 18 inches," and "is entirely uncovered by a roof or any superstructure."*fn1

The ambiguity arises because the section of the ordinance defining lot coverage neither excludes nor includes all patios. Patios "associated with an in-ground or above-ground swimming pool" are included in lot coverage whether pervious or impervious. Other patios are included in lot coverage only if they are impervious. And, an impervious patio is exempt if it is "not associated with an in-ground or above-ground swimming pool . . . [and is] accessory to a single family dwelling."

In the context of this lot coverage exception, the meaning of the phrase "accessory to a single family dwelling" is far from clear and not particularly informative. The ordinary use of the term "accessory" in the context of zoning law is with reference to structures and uses of property that are "customarily incidental" and "necessary or expected" to the principal use and structure. See Wyzykowski v. Rizas, 132 N.J. 509, 518-19 (1993).

The Board argues that its interpretation of the relevant provisions of the ordinance is consistent with the plain meaning of the term patio and the apparent intent underlying the lot coverage provision, which includes all patios associated with pools and excludes impervious patios only if they are accessory to the dwelling. The Board relies on the common dictionary definition of the word "patio," which describes a patio as a paved area adjoining a residence and used for outdoor activities such as lounging, dining and recreation.*fn2 The Board contends that the lot coverage provision, when informed by the ordinary meaning of the term patio, is intended to exempt only those impervious patios that are adjacent to and associated with the house.*fn3

The Board's construction of the relevant sections of the ordinance gives those provisions reasonable meaning that is consonant with what the drafters would probably intend if they envisioned the facts of this case. After expanding their residence, the Palermos sought to spare themselves the expense of removing impervious surface in excess of the permitted lot coverage by declaring that surface a patio. It was reasonable for the Board to conclude that when impervious patios not associated with pools were excluded from lot coverage, the intent was to exclude only those patios that are adjacent to and associated with the house. Twp. of Pennsauken, supra, 160 N.J. at 170. As the facts of this case demonstrate, the Board's construction avoids absurd results that would undermine the drafters' intent to restrict sprawling lot coverage.

The judgment of the trial court is reversed, and the Board's interpretation of the ordinance is reinstated.

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