On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-373-11.
The opinion of the court was delivered by: Sabatino, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino, Fasciale and Maven.
The opinion of the court was delivered by SABATINO, J.A.D.
Defendant, the Zoning Board of Adjustment ("the Board") of the Borough of Seaside Park ("the Borough"), appeals the trial court's decision in this action in lieu of prerogative writs. The court's decision nullifies a "stop work" order issued by the Borough and authorizes plaintiff Daniel Motley to restore his nonconforming house, which had been torn down to its foundation and footings, back to its prior dimensions.
We reverse the trial court's decision to nullify the stop work order because N.J.S.A. 40:55D-68 allows a nonconforming structure to be rebuilt only if it has been "partially" destroyed. We also reverse the decision because the record establishes that plaintiff's dismantling of all of the interior and exterior walls and his attempt to rebuild the house exceeded the scope of the zoning permit that had been issued to him. However, we affirm the trial court's rejection of plaintiff's separate claim that the stop work order should be invalidated by principles of equity.
Plaintiff is the owner of property located on Block 65, Lot 55 in the Borough of Seaside Park, with an address of 213 "O" Street. The property lies within Seaside Park's R-3 zone, which is restricted to single-family uses. The parties agree that the property is a pre-existing nonconforming use, as it contains two structures, the front building ("213A") and the rear building ("213B"), which were erected in or around 1931, long before the zone restrictions were put into effect in 1972. Both buildings are used as single-family dwellings. Plaintiff's brother has occupied the rear building.*fn1 Plaintiff, meanwhile, occupied the front building for a number of years.
When plaintiff bought the property with his brother in 1999, the front building's main floor had two bedrooms, a kitchen, a bathroom, and a living room. Above the main floor was a loft area, which was used as a "kids' room." The property does not conform to the zoning ordinance's bulk requirements with respect to its lot width, lot depth, lot area, front yard setback, rear yard setback, side yard setback, and building coverage.
Plaintiff initially decided in 2007 to pursue renovations of the front house after pipes in its hot water system burst in or about 2006 and caused significant water damage. In addition, he sought to add a complete second story to that building. To that end, plaintiff filed an application with the Board for a use variance to authorize the second floor addition as an expansion of a non-conforming use. Plaintiff also sought numerous associated bulk variances.
The Board denied the variance application in February 2008. In its resolution memorializing that denial, the Board noted, among other things, that the property "contains a pre-existing non-conforming use and expansion of said use would only exacerbate the condition therein." The Board also determined that the numerous bulk variances that plaintiff requested "would not provide any added benefit and instead [would] cause substantial detriment to the immediate neighborhood." In addition, the Board found that the proposed project did not "promote the purposes of zoning."
Having failed to obtain variances, plaintiff revised his approach and filed an application for a zoning permit with the Borough in August 2009. His permit application sought to allow "repair [and] renovation of [the] existing dwelling" at 213A and to allow for replacement of 213A's air-conditioning unit. Plaintiff included the construction plans with the application.
The Borough's new zoning officer, James Mackie, approved the permit application on August 28, 2009. However, Mackie noted on the approval form that there was to be "[n]o expansion of [the structure's] dimensions." Mackie also wrote on the approval form: "[s]iding, shingles, additional [windows] only - no bumpouts."*fn2 Plaintiff sought and obtained several other permits in relation to his project, which are not germane to the zoning issues before us.
According to his testimony in the record, Ralph Finelli, a licensed architect retained by plaintiff in developing the renovation plan, characterized the project as a "rehab [of] the entire building" and a "total renovation" of the building's interior and exterior. Finelli stated that the plan included in plaintiff's application provided for replacement of the "roof, frame and finish," and a new floor. He also noted that a new staircase was to be installed to replace an existing "ship ladder" that led into the loft area, and a new upstairs bathroom was to be installed. Finelli further stated that the renovation plan would not change the structure's existing dimensions.
Steven Lisa, plaintiff's construction superintendent for the renovations of 213A, testified that the roof was removed first. According to Lisa, as the work on the house progressed, it became clear that there was more damage to the structure than was initially known. Lisa stated that the structure was in "[m]uch worse" condition than he had anticipated. Among other things, parts of the building had been made from "debris," and there was "no consistency to the dimensioning" of the wall frames. The roof was also leaking, and the hot water system in the loft had leaked and caused part of the first-floor ceiling to collapse. Lisa stated that the hope was to keep as much of the existing walls as possible to save costs, but that the condition of the structure did not permit that approach. Many floor beams were rotted, and the "main center beam through the middle of the house" was sagging "six to eight inches."
Eventually, a building inspector*fn3 of the Borough, Gary Swizczynski, determined that the entire structure needed to be removed. The building was not habitable before construction began, and evidently had not been habitable since 2005 or 2006. Plaintiff proceeded with the demolition, without contacting Mackie, the zoning official.
On February 4, 2010, the Borough's code enforcement officer, Patrick Linkovich, issued a stop work order, after discovering the extent to which plaintiff and his contractors had demolished the front building. According to Mackie, the order was issued because too much of the building had been removed, to an extent that the project had become, in essence, "all new construction." Mackie described the state of the premises at that point as "an existing building that had been stripped of all it[s] siding materials, and roofing materials, and that it was strictly a . . . gutted shell[.]"
By the time plaintiff received the stop work order, the floor was still in place but many of the floor beams had been removed, new framing had been installed for all four walls, and the foundation was intact. In addition, a new plate had been installed in the foundation to replace a rotted one.
According to Mackie, plaintiff's actions in tearing down the structure to its foundation and footings went beyond the scope of the zoning permit that had been issued for the project. The extent of the demolition had not been set forth in the plans that plaintiff had submitted when applying for the permit. Mackie understood the structural facets of the plans to call only for new windows cut into the existing walls, re-siding by way of new shingles, and a new roof. He stated that the terms "reconstruction" or "rebuild" should have been included in the plans if plaintiff had wanted approval for the building to be torn down to its foundation.
Plaintiff contested the issuance of the stop work order and sought to have it vacated by the Board. He contended that the construction plans, which he had shown to Mackie before the zoning permit was issued, sufficiently alerted the Borough to the possibility that the walls might need to be removed. Plaintiff claimed that he had discussed with Mackie replacing the floor joists, insulation, and exterior wall framing, and that he had also discussed installing "composition siding with Tyvek [insulation material]." In the alternative, plaintiff requested that the Board grant him a use variance to allow the construction to continue.*fn4
The Board conducted three public hearings on this matter. It heard testimony from plaintiff, his architect Finelli, and his construction superintendent Lisa. It also heard competing testimony from Mackie. In addition, the Board considered comments by several neighbors who were opposed to plaintiff's project, including one neighbor who described the tight fit of ...