On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket Nos. L-8244-06 and L-3821-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 7, 2011 -- Decided
Before Judges Lisa and Reisner.
Plaintiffs George K. Miller and his wife Debra Miller appeal from two orders of the trial court dated October 16, 2009, and April 29, 2010. We affirm substantially for the reasons stated by Judge Valerie Armstrong in her written opinions dated October 16, 2009, and April 29, 2010.
I This appeal arises from a long-running dispute between the Millers and their neighbors, John Scott Abbott and Joanne Abbott, over the Abbotts' waterfront deck. We need not recount the history in detail, as it is set forth at length in our two prior opinions, Miller v. Abbott, No. A-6661-06 (App. Div. Apr. 30, 2008)(Miller I), and Miller v. Abbott, App. Div. No. A-6091-07 (App. Div. Mar. 31, 2009) (Miller II). However, we provide a brief summary as background.
A In deciding the first appeal, we held that the Margate zoning board erred in granting the Abbotts "c" and "d" variances retroactively approving construction of the deck. See N.J.S.A. 40:55D-70c, -70d. We remanded with instructions that the Abbotts either remove the deck or modify it to comply with the zoning ordinance.*fn1 The Abbotts then submitted for municipal approval a set of plans to modify their deck. The municipal land use administrator approved those plans, but the Millers filed a motion in aid of litigant's rights before the trial court asserting that the proposed modifications were insufficient.
In an opinion dated August 8, 2008, the trial court determined that the proposed deck modifications were consistent with the zoning ordinance. The Millers appealed from that decision, but in deciding their appeal we did not reach the consistency issue. Instead, we once again remanded to the trial court, this time to consider whether changes to the zoning ordinance, adopted on September 18, 2008, had rendered the dispute moot under the time of decision rule. We suggested that the proceedings on remand be consolidated with the Millers' pending challenge to the ordinance amendments. Miller II, supra, slip op. at 4-5.
We pause here to describe the history of the amendments. Shortly after we decided Miller I, Mr. Abbott wrote to the municipal governing body (the City Commissioners), noting ambiguities in the zoning ordinance and asking them to adopt a zoning amendment that would clarify the height requirements for waterfront decks. He pointed out that neighboring municipalities had ordinances allowing homeowners to raise the grade of their land when they built new, higher bulkheads and allowing them to build decks on top of the new bulkheads. He submitted a proposed amendment that he had drafted.
The ordinance was introduced but not adopted, after the Millers' attorney objected and insisted that the issue should first be referred to the local planning board.*fn2 The governing body commissioned Ed Walberg, who had been the Margate City Engineer for the past sixteen years, to review and evaluate "the Land Use Ordinance dealing with bay front bulkheads and decks and other applicable ordinances."
Walberg conducted an extensive study of bulkheads and decks, and their regulation, in Margate and several other municipalities. He took photographs of bayfront docks and decks throughout the municipality. He also considered floodwater levels in prior major storms. He then submitted a report and several proposed ordinance amendments based on his study (Walberg's report).
After receiving Walberg's report, the City Commissioners referred the matter to the planning board for consideration. Walberg later provided a supplemental report to the planning board, reviewing the proposed amendments for consistency with the municipal master plan. The planning board considered the proposals at a July 31, 2008 meeting. Our review of the meeting transcript reveals that the board did not focus on, or even mention, the Abbott deck, but rather was concerned with the city-wide impact of the proposed amendments.
After the planning board voted to approve the proposed amendments, the City Commissioners held a public hearing to consider them. At that hearing, the Millers' attorney raised a series of objections to the ordinances. However, ...