On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket Nos. L-058-08 and L-259-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued November 9, 2009
Before Judges Carchman, Parrillo and Lihotz.
In these consolidated appeals, defendant Borough of Avalon (the Borough) and defendant OMP Investment, LLC (OMP) appeal from that portion of a judgment of the Law Division concluding that a pool constructed on premises owned by OMP failed to comply with a Borough ordinance. We conclude that plaintiff Louise McLaughlin's challenge to the zoning officer's determination that the pool was conforming was time barred. Accordingly, we reverse.
We provide an expansive review of the procedural history of this dispute. Defendant OMP is the owner of premises located on Ocean Drive in Avalon. In the course of constructing a residence on the property, OMP received a zoning permit for the construction of a pool on July 26, 2007. The pool construction was proposed for the rear yard of the property, which fronts on the bay. The construction of both the residence and the pool continued unabated during the next few months when on October 2, 2007, plaintiff, who owns property immediately adjacent to the OMP property, through her son, Frank McLaughlin,*fn1 appeared before defendant Avalon Planning/Zoning Board (the Board) during the open segment of a public session to complain about the pool construction. His specific complaint was that the pool was not being constructed in conformance with the Borough ordinances.
He made the following statements:
. . . I want to have you hear my -- our grief that we have. And once again, if we've got these ordinances -- the pool decking, it's described here, shall be at grade level. However, the coping around the edge of the pool may extend no more than two inches above grade. And here's the reason I wanted to come here tonight. I took a tape measure over there. The designation, and you may know this, you may not know this, for a swimming pool to be built, if it's an in ground pool, it must be 15 feet from the bulkhead. They built a pool that was 15 - - I'm sorry, it was ten feet from the bulkhead. The construction office told them rip it out, it's too close. So, now they've built an in ground pool that's above the ground.
Here we've got this rule on the books that say [sic] here is a pool that must be 15 feet, it must be no more than two inches above grade. This thing, like I mentioned, is 63 inches above grade and it's going to have a fence on top of it.
. . . . . . . I'm reading our ordinance here. It says no more than two inches above grade.
And this is 63 inches above grade.
In response to plaintiff's complaints, the Board directed him to the zoning official and then ...