On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2274-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and J. N. Harris.
This appeal--pitting individual property owners against a resident historic preservation association--presents a poignant example of the oft-recurring phenomena of neighbors clashing with neighbors because of construction activities that allegedly exceeded the bounds of a building permit. At issue is whether the rebuilding of a carriage house located within Jersey City's historic Paulus Hook neighborhood was properly authorized by the City's Zoning Officer and whether a challenge to the Zoning Officer's approval was timely filed with the local Board of Adjustment.*fn1
The Law Division judge, in an action in lieu of prerogative writs, determined that plaintiff Historic Paulus Hook Association (Association) had timely filed an appeal challenging the Zoning Officer's permitting actions pursuant to N.J.S.A. 40:55D-72. This finding reversed the Board of Adjustment's contrary conclusion, but did not result in the matter being remanded to the Board of Adjustment to determine the substantive merits of plaintiff's claims. Instead, going beyond the strict contours of the pleadings in the action in lieu of prerogative writs, the judge ultimately held that "the Zoning Officer's actions in this matter are found to be void ab initio and of no legal effect." While we disagree with the Law Division's determination concerning the timeliness of plaintiff's appeal to the Board of Adjustment, we nevertheless conclude that the judge's overall conclusion regarding the Zoning Officer's actions was substantially correct. Accordingly, we affirm.
Defendants Abdel Amin and Badria Elatar (collectively, the owners), are the title-holders of property that includes a carriage house, located on Greene and Sussex Streets in Jersey City. The property is located within the Paulus Hook Historic District, a designated zoning district delineated in the Code of Jersey City, New Jersey § 345-58 (the Code).*fn2
Starting in December 2005, the owners began discussions with Daniel Wrieden, Jersey City's Historic Preservation Officer (HPO), concerning their desire to rehabilitate the carriage house. After several revisions of the architectural plans, the owners applied for a permit to allow them to commence the contemplated renovations. Because of its location, any construction connected to the carriage house was subject to the oversight of Jersey City's Historic Preservation Commission (Commission)*fn3 pursuant to Code §§ 345-9 and -30. The Commission was created pursuant to N.J.S.A. 40:55D-107, and enjoys an expansive role in Jersey City's multi-layered system of land use controls, which includes the following:
1. To identify, record and maintain a system for survey an inventory of all buildings, sites, places, structures, objects or landscape features of significant historical or architectural value based standards of the United States Department of the Interior and to aid the public in understanding their worth, methods of preservation, techniques of documentation and related matters. The Commission shall be guided by the standards of the United States Department of the Interior.
2. To undertake to maximize the entire City's knowledge and enjoyment of these historic resources and, as appropriate, promote this asset beyond the boundaries of the City.
3. To advise the City Council and Planning Board of the relative merits of proposals involving public funds to restore, preserve and protect landmark buildings, places and structures, sites, objects and landscape features including the preparation of a long-range plan therefore, securing state, federal and other grants and aid to assist therein and monitoring such projects once underway.
4. To advise and assist City officers, employees, boards and other bodies, including those at County, regional, State and Federal levels, on all matters which have potential impact on the landmark buildings, sites, structures, object or landscape features in the City or on the ambience of a historic district.
5. To recommend to the Planning Board and the City Council the establishment and boundaries of additional historic districts where appropriate.
6. To recommend to the Zoning Board of Adjustment and the Planning Board the grant or denial of development applications where such are deemed to be within the intent and purposes of this Article.
7. To assemble and arrange for the proper care, cataloging and availability of materials relevant to the City's history.
8. To maintain a system for the survey and inventory of historic resources that is compatible and coordinated with the statewide Inventory of the Office of New Jersey Heritage.
9. To cooperate with local, County, State or national societies, governmental bodies and organizations to maximize their contributions to the intent and purposes of this Article.
10. To recommend to applicable County, State and Federal agencies, where appropriate, recognition of historic districts and Landmark buildings, places and structures.
11. To request the City Council to seek, on its own motion or otherwise, injunctive relief of violations of this Article or other actions contrary to the intent and purpose of this Article.
12. To make recommendations to the Planning Board on the Historic Preservation Land Use and Community Facilities Plan elements of the Master Plan and on the implications for preservation of landmark, historic districts or any other Master Plan elements.
13. To advise the Planning Board on the inclusion of historic districts or landmarks in the recommended capital improvement program.
14. To provide the Administrative Officer with written reports on the application of the Zoning Ordinance provisions concerning historic preservation.
15. To carry out such other advisory, educational and informational functions as will promote historic preservation in the municipality.
16. To review all proposed National Register nominations in accordance with New Jersey's Certified ...