STEVEN I. GROSS and GENEVIEVE GROSS, Plaintiffs,
KEVIN A. IANNUZZI, Defendant-Appellant, and JERRY DIPIETRO, DAVID ARSHT, BEVERLY ARSHT, IRA SACHS, ANDREA SACHS, ED MARINELLI, TONI MARINELLI, MARIA A. MARINELLI, JEFF STEINIG, and NIKKI STEINIG, Plaintiffs-Respondents, and CITY OF MARGATE, Defendant-Respondent. BARRY ABRAHAM and ELLEN ABRAHAM, Plaintiffs,
KEVIN A. IANNUZZI, Defendant-Appellant, and CITY OF MARGATE, JAMES GALANTINO, in his official capacity, and ROGER RUBEN1, in his official capacity, Defendants-Respondents.
December 19, 2018
appeal from Superior Court of New Jersey, Law Division,
Atlantic County, Docket Nos. L-3360-14 and L-6543-14.
Stephen J. Hankin argued the cause for appellant (Hankin
Sandman Palladino Weintrob & Bell, attorneys; Stephen J.
Hankin, of counsel and on the briefs).
S. Abbott argued the cause for respondents City of Margate,
James Galantino, and Roger Rubin.
Salvatore Perillo argued the cause for respondents (Nehmad
Perillo & Davis, attorneys; Salvatore Perillo, of counsel
and on the briefs). 
Judges Alvarez, Reisner and Mawla.
Kevin Iannuzzi, the City of Margate (Margate), and two city
officials, James Galantino and Roger Rubin, appeal from a
July 14, 2015 trial court order and an August 16, 2016 order
denying reconsideration. For the reasons that follow, we
affirm in part and reverse in part.
trial court overturned Margate's approval of
Iannuzzi's plan to demolish his beachfront townhome,
which was damaged by Superstorm Sandy, and replace it with an
elevated and enlarged free-standing residence. The court also
rejected Iannuzzi's alternate plan to rebuild and elevate
the townhome using its original footprint. In determining
that Iannuzzi could not build a free-standing house and that
any replacement structure could not be elevated,
notwithstanding current flood-safety standards, the trial
court relied on a Declaration of Covenants and Restrictions
(the Declaration) that took effect in 1978 when the townhome
development was built.
in August 2017, after the trial court decided the case, the
Legislature amended N.J.S.A. 58:16A-103 (the Act), concerning
flood-safe construction. The Act, originally adopted in 2013
in response to Sandy, prohibits enforcement of development
ordinances that would prevent certain flood-safe
construction, including the otherwise lawful raising of a
Sandy-damaged structure. The 2017 amendment added row houses
or attached townhouses held in fee simple to the definition
of "structure" and provided that deed restrictions
could not be enforced to prevent elevation of a Sandy-damaged
review of the trial court's legal interpretations,
including its interpretation of contracts, is de novo.
See Manalapan Realty, LP v. Manalapan Twp. Comm.,
140 N.J. 366, 378 (1995); Cooper River Plaza E., LLC v.
Briad Grp., 359 N.J.Super. 518, 528 (App. Div. 2003).
Applying that standard of review, we affirm the trial
court's order insofar as it precludes Iannuzzi from
razing the townhome and building a free-standing house on the
lot, instead of either repairing or rebuilding the townhome.
We agree with the trial court that, by its terms, the
Declaration prevents Iannuzzi from building a free-standing
house without the approval of a majority of the other
homeowners in the townhome development. The trial court
also correctly determined that the Declaration was not
abandoned, did not lapse, and remains in effect. On these
issues, we affirm for the reasons cogently stated by the
trial court in its written opinions dated July 14, 2015, and
August 16, 2016, and we conclude that defendants'
arguments do not merit further discussion. R.
2:11-3(e)(1)(E). We reach a different conclusion with respect
to the issue of elevating the townhome.
a matter of first impression, we hold that N.J.S.A.
58:16A-103, as amended, applies to Iannuzzi's
individually-owned townhome and permits him to elevate the
structure as required by current flood-safety standards,
despite Declaration provisions that would otherwise preclude
him from doing so. As intended by the Legislature, the
amended statute overrides the Declaration and any local
development regulations that might otherwise prevent Iannuzzi
from elevating the townhome. Hence, we reject plaintiffs'
argument that Iannuzzi must obtain dispensation from
Margate's Planning/Zoning Board because raising his
townhome would be inconsistent with the development's
original site plan approvals. Likewise, Iannuzzi's
statutory right to elevate his townhome does not depend on
whether the townhome or the development as a whole suffered
"substantial" damage within the meaning of
Margate's flood-safety ordinance.
further reject plaintiffs' argument that, even if
Iannuzzi is permitted to raise the elevation of the
townhome's first floor, he must maintain the existing
height of the roofline by reducing the living space within
the townhome. That cramped interpretation would defeat the
legislative purpose to encourage flood-safe construction. In
the circumstances presented here, Iannuzzi's right to
protect his property from flood hazards outweighs his
neighbors' right to preserve their ocean
views. Accordingly, we reverse the trial court
order precluding Iannuzzi from elevating the townhome
pursuant to the standards set forth in N.J.S.A. 58:16A-103 as
light of the narrow issue presented, the record evidence can
be summarized as follows. In 1977, a developer obtained
Planning Board approval to construct what, at the time, was
an unusual townhouse development on the beachfront in
Margate. The development consisted of one row of ten attached
two-story oceanfront townhomes, and a second row of ten
attached three-story townhomes located directly behind the
first row. The expressed purpose of this configuration was to
give both rows of townhomes an ocean view. The Planning Board
particularly noted that feature in its resolution approving
the townhomes shared party walls that extended down into the
foundation, each was situated on its own subdivided lot, was
owned in fee simple, had its own separate roof and utilities,
and was separately assessed and insured (including flood
insurance). There was no homeowners' association and
rooftop condensers were the sole common element.
August 8, 1978, the developer executed and later recorded the
Declaration, which set forth certain requirements that were
to "run with the land and . . . be binding on all
parties having or claiming any right, title or interest in
the described property or any part thereof." The
Declaration required homeowners to obtain approval of at
least a majority of the property owners in order to build
additions to their units, and required additions to conform
"to the design of the development." The Declaration
covenants were to remain in force for twenty-five years (from
July 1, 1978 to July 1, 2003), with two additional
twenty-five year renewal periods, "unless changed by a
vote of two-thirds of the property owners at the time of
expiration." Thus, at the time either of the first two
twenty-five year periods expired, the owners could vote to
change the terms of the Declaration. Otherwise, the covenants
would renew unchanged.
October 29, 2012, Superstorm Sandy damaged all of the
development's beachfront units. Nine of the units were
repaired in place, although for reasons not evident on this
record, they were not elevated to prevent future flood
damage. The tenth townhome, located on the southern end of
the row, was so badly damaged that Margate issued a notice of
unsafe structure declaring it uninhabitable. The unit's
then-owner did not repair it. Iannuzzi eventually bought the
unit in its damaged condition, intending to demolish it and
replace it with a free-standing house. Iannuzzi obtained a
zoning permit for that construction from Margate's zoning
officer. The local construction code official wrote Iannuzzi
a letter advising that the townhome was substantially damaged
by Sandy and any rebuilt structure would have to be elevated
to thirteen feet above flood level, requiring an increase in
elevation of slightly more than four feet.
Steven I. Gross filed an appeal with the Board challenging
the issuance of the zoning permit. Before the appeal was
heard, two groups of plaintiffs, one of which included Gross,
filed lawsuits seeking to stop construction of the
free-standing house. Iannuzzi defended his right to build the
house. However, in the alternative, he asserted a right to
rebuild the original townhome in place and elevate it to meet
flood safety standards. Plaintiffs vigorously opposed both of
Iannuzzi's proposed ...