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Mott v. Zoning Board of Adjustment of City of Ocean City

October 16, 2009

JOEL A. MOTT, III, PLAINTIFF-RESPONDENT,
v.
ZONING BOARD OF ADJUSTMENT OF CITY OF OCEAN CITY, DEFENDANT, AND THE CITY OF OCEAN CITY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-418-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 12, 2009

Before Judges Rodríguez and LeWinn.

The City of Ocean City (Ocean City) appeals from the October 9, 2008 final judgment in favor of plaintiff Joel A. Mott, III. We affirm.

The issue presented is a legal issue. The facts have been stipulated by the parties as follows: Mott owns the Bourse Building, a three-story historic commercial building constructed in 1895. Mott also owns a parking lot in close proximity to the Bourse Building, located on Central Avenue.

In 1989, Mott, a practicing attorney, applied for site plan approval, including certain variances, in order to make improvements to the Bourse Building. The Zoning Board of Adjustment of the City of Ocean City (Board) approved an integrated site plan, which included improvements on both the Bourse Building and the Central Avenue property. At the time of the 1989 application, the commercial business (CB) zone, in which the Bourse Building is located, required parking. As part of the 1989 application, the Board granted a use variance to create eleven parking spaces on the Central Avenue property, which is located in the residential multi-family (RMF) zone.

In 1996, Section 25-205.1.13 of the Ocean City Zoning Ordinance was amended to eliminate the requirement that parking be provided for commercial uses in the CB zone. Nine years later, Mott decided to build a two-family home (duplex) on the Central Avenue parking lot site. This is a permitted use in the RMF zone. Mott applied for a zoning permit and paid an application fee of $50 to Ocean City. The City issued zoning permit No. 20050224.000 certifying that the Central Avenue site was approved for the duplex use. Mott also paid $500 to the Ocean City Department of Public Works to obtain a street opening permit for the duplex site and he applied for a construction permit. After Mott complied with additional requirements, the Ocean City Construction Code Office issued construction permit No. 20051588, permitting construction of the duplex, including permission to perform building, electrical, plumbing, and fire protection work on the premises. After receiving the building permit, Mott gave Dougherty & Johnson Builders a $50,000 deposit to do the construction work. Dougherty & Johnson Builders contracted with several sub-contractors, spending $28,944.16 of Mott's deposit.

After partial completion of the project, Ocean City Zoning Officer Ken Jones concluded that the zoning permit should not have been issued because the parking lot site was part of an integrated site plan approval with the Bourse Building. Jones rescinded the zoning permit for noncompliance with the zoning code. Patrick Newton, the construction official, rescinded the building permit for the same reason. A stop work notice was issued. Construction was halted.

Mott applied to the Board for an amendment to the 1989 site plan approval, seeking to remove the Central Avenue parking lot. The Board denied the application.*fn1

Mott filed an action in lieu of prerogative writs, challenging the denial of his application for site plan approval to remove the parking lot from the previous site plan for the Central Avenue property. Later, Mott filed an amended complaint asserting a claim of estoppel to prevent the Board from revoking previously issued building and zoning permits.

Judge Valerie H. Armstrong bifurcated the issues. She upheld the Board's April 19, 2006 decision to deny Mott's application for site plan approval. That decision is not on appeal. However, the judge held that equitable estoppel precluded the City from rescinding the building and zoning permits. The judge ordered the reinstatement of both permits and granted Mott permission to complete construction of the proposed duplex on the Central Avenue property.

In an oral opinion delivered on October 8, 2008, Judge Armstrong reasoned:

The City's asserted interest here is in maintaining eleven parking spaces for the [Bourse] building. By the same token, at the time [Mott] applied for and received the permits and commenced construction the City, for whatever reason, had previously eliminated commercial parking requirements for the CB district. It was not until several months after [Mott] applied to ...


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