On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-62-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Lihotz and Ashrafi.
Defendants Mark and Kathy Wood appeal from the judgment of the Law Division dated March 6, 2009, determining that a tennis court they built in their back yard violates setback regulations of the applicable municipal zoning ordinance and must be removed. We affirm.
The dispute devolved into unfortunate, lengthy litigation among neighbors and municipal government because errors were made about the meaning of a sufficiently clear, but previously unapplied, ordinance that required the tennis court to be situated at least forty feet from the property line. Rather than heed the ordinance, the defendants relied on the mistaken interpretation of the local zoning official that the ordinance did not apply to their tennis court. The Township Land Use Board then perpetuated the error by also misinterpreting the ordinance to avoid an unpalatable result, officially admitting an error and compelling defendants to remove a tennis court that was already built.
With a few exceptions, the relevant facts are not in dispute. The Woods and the O'Neills live on adjacent lots in the Township of Tewksbury. The Woods' lot is an elongated, trapezoidal shape, 3.386 acres in size, with depth of approximately 1,000 feet, road frontage of more than 200 feet, and width decreasing from the road to sixty-five feet at the far rear of the lot.
In April 2005, defendant Mark Wood asked the Township zoning officer whether a permit was required for the construction of a tennis court on his property. The zoning officer checked with the Township's Land Use Administrator and initially told Mr. Wood that no permit was required. A contractor began grading work for the construction of a tennis court in about May 2005.
The neighbors, plaintiffs Richard and Abby O'Neill, contacted the zoning officer and questioned whether the tennis court could be built where planned by the Woods.*fn1 The zoning officer then alerted the Woods that because their proposed tennis court would be an impervious surface, a grading and surface water management plan would be required before construction could proceed.
The Woods hired Ferriero Engineering to survey the property and determine the amount of impervious coverage on their lot and whether the tennis court would surpass the permitted coverage. The survey that was prepared, dated July 8, 2005, included a "Variance Map." The map indicated that the tennis court would exceed permissible impervious coverage on the Woods' lot, and a variance for that deviation was necessary.
The map also gave the dimensions of the tennis court as 120 by 60 feet. Although the small copy of the map attached in the appendix on this appeal does not show the width of the Woods' property at the location of the tennis court, it indicates that a corner of the tennis court is 27.0 feet from a side boundary line of the lot and the opposite corner is 21.5 feet from the boundary line between the Wood and O'Neill lots. It appears, therefore, that the tennis court was located in a section of the lot that has a width of about 110 feet or less. According to the legend on the map, the Woods' property is subject to a minimum side yard requirement of forty feet, thus requiring a variance for the deviation from setback regulations.
Mr. Wood met with the zoning officer to review the survey. The zoning officer said that the proposed court would require a variance for impervious lot coverage. Apparently, the two men did not discuss a variance for or the deviation from the side yard setback regulation requiring forty feet.
The Woods then researched for solutions to the lot coverage issue and eventually hired an alternative contractor to install a completely pervious tennis court made of polypropylene. By letter dated November 5, 2005, the Township engineer accepted the proposed tennis court surface as indeed pervious and thus a proposal that did not trigger the maximum impervious coverage requirements of the Township's zoning ordinance.
On November 8, 2005, work began on the installation of the polypropylene tennis court. Mr. O'Neill was away on a business trip during the first few days of construction on the Woods' lot. He first noticed that construction was in progress on the morning of November 11, 2005. Mr. O'Neill complained to the zoning officer that same morning. According to Mr. O'Neill's testimony, he eventually convinced the zoning officer that the tennis court did not comply with zoning regulations and the zoning officer agreed that he would issue a notice of violation letter to the Woods. The contractor completed installation of the tennis court on November 24, 2005, before a notice of violation was issued.
On December 1, 2005, the zoning officer issued a notice of violation letter to the Woods. Among other things, the notice stated that the tennis court required a forty-foot minimum setback from the property line. A few days later, Mr. Wood met with the zoning officer to discuss the notice. According to Mr. Wood's testimony, the officer determined at that meeting that the tennis court was in fact not a "structure" because of its pervious surface material, and therefore, it did not violate the setback regulation. According to the testimony of the zoning officer, he "basically dismissed" the first notice of violation "verbally," but did not send a letter memorializing his decision.
In the meantime, the O'Neills engaged an attorney to represent their interests in the dispute. On December 15, 2005, their attorney wrote to the zoning officer, stating that the tennis court required a forty-foot side yard setback under §726(A) of the Tewksbury Township Development Regulations Ordinance (Tewksbury or Township ordinance). In relevant part, that ordinance section states:
A. In any residential zone, a Personal Private Recreational or Athletic Facility or Activity is permitted only as an accessory use to the principal residential use on the lot and only under the following conditions:
(10) No such accessory use or structure shall be permitted in any front yard; however, such use or structure may be located elsewhere on the lot outside of the minimum side or rear yards. [Tewksbury Ordinance §726(A)(10) (emphasis added).]
There is no dispute that the minimum side and rear yard setback regulations for the zoning district of the Woods' property is forty feet.
On December 15, 2005, prompted by the O'Neills' attorney, the zoning officer sent a second notice of violation to the Woods stating that the tennis court did not comply with the side yard setback regulation for such an accessory use and a variance was required. Mr. Wood and Mr. O'Neill then engaged in discussions to settle the dispute, but were not successful.
Unhappy with the perceived lack of municipal action, the O'Neills filed a complaint in the Superior Court, Chancery Division, on January 10, 2006, seeking injunctive relief and removal of the tennis court. The complaint named the Woods as defendants but did not join the Township or the Township of Tewksbury Zoning Board of Adjustment.*fn2
On January 13, 2006, Mr. Wood again met with the zoning officer, who allegedly told him that the only remaining zoning issue was the height of the fencing for the tennis court, reiterating that because the surface was completely pervious, the tennis court need not comply with the setback requirements.
However, on January 19, 2006, Mr. Wood received a letter from the zoning officer suggesting that the setback issue be heard by the Board. Specifically, the letter stated:
The question has risen on whether the tennis court has to meet the minimum setback requirements for the zone district it is located in.
By definition the tennis court is considered a structure in the [Township ordinance]. This does not determine that the tennis court must meet the minimum setback requirements, however in Section 726-10 under accessory use provisions it states recreational facilities must be located outside of the minimum setbacks.
The issue is whether the tennis court being a pervious surface must follow these requirements. I believe the question should be determined by the [Board] . . . .
On March 17, 2006, the Chancery Division, on its own motion, dismissed the O'Neills' complaint without prejudice, on the ground that "primary ...