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Grasso v. The Borough of Spring Lake Heights

2004 WL 2676643 (App. Div. 2004)

ZONING; VARIANCES—The special reasons offered to support a variance request must bear some relationship to the reasons for the restrictions in the ordinance from which the waiver is sought.

A local planning board approved a homeowner’s application to subdivide his property into three lots in order to build three two-story homes. The lots sloped steeply upward from the front to the rear of the property. Prior to building the first house, the owner notified zoning and construction officials that the home would be slightly less than thirty feet high. However, the owner measured the structure from its grade along the foundation even though the municipality’s zoning ordinance required the building’s height to be measured from the curb line. During construction, several neighbors complained that the building was too high. So, the municipality issued a stop-work order. By the time the stop-order was issued, the owner already had improved the curbs, streets, and sewer lines, had dug the foundation, installed the footings, and framed, sheathed, and roofed the house. The partially constructed home was thirty-eight feet above the curb line, even though it was only twenty-nine and one-half feet above grade. The owner was then denied a height variance.

The owner sued, alleging that the municipality was estopped from enforcing the zoning ordinance’s height requirements and challenging the board’s denial of the height variance on the grounds that the board’s findings were inadequate and the decision was arbitrary and capricious. The lower court ruled that the municipality’s issuance of a construction permit did not estop it from enforcing its height restriction. This was because the owner had misrepresented, however innocently, the height of the house as being under thirty feet. Therefore, the lower court voided the zoning and construction permits and remanded the matter to the planning board to evaluate the merits of the height variance based on the Municipal Land Use Law’s positive and negative criteria under N.J.S.A. 40:55D-70(d).

On appeal, the owner argued that the zoning officer and the construction official were independently obligated to carefully review the owner’s plans to ensure that the proposed structure did not violate the height restrictions. According to the owner’s argument, since neither fulfilled this obligation, the municipality should have been estopped from requiring removal of the partially completed house. The Appellate Division rejected this argument, holding that the owner could not establish good faith reliance upon the permits because he had furnished the municipality with misleading information. It further held that the height restrictions in the zoning ordinance were clear and unambiguous. Further, the doctrine of equitable estoppel is rarely invoked against a municipality so as not to impair essential governmental functions. Nonetheless, a municipality may be estopped from enforcing its zoning ordinance if a landowner makes substantial expenditures in good faith reliance on a permit that was issued because of a municipal official’s erroneous, but debatable, interpretation of the zoning ordinance. This was not the case here. Neither party claimed that the zoning ordinance was ambiguous. It clearly required building height to be measured from the curb. A municipal land use action taken in direct violation of law or without legal authority is void ab initio and has no legal value. Consequently, a building permit issued contrary to a zoning ordinance or building code cannot ground any rights in the applicant.

The Appellate Division then concluded that the lower court erred in remanding the matter to the planning board to evaluate the merits of the height variance based on the positive and negative criteria. The owner’s variance application was governed by 40:55D-70(d)(6), which, on a showing of special reasons, the so-called positive requirement, authorizes a variance to permit the height of a principal structure to exceed by ten feet or ten percent the maximum height permitted. In addition, the applicant must prove that the variance can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance, which is the so-called negative requirement.

Applicants for (d)(6) variances based on hardship must show that their property cannot reasonably accommodate a structure that conforms to, or only slightly exceeds, the height permitted by the ordinance. Here, the Court determined that the owner failed to demonstrate hardship because the property could have accommodated a home that was less than thirty feet high above the curb line. It was irrelevant that there was a limited market for homes under thirty feet high. A developer’s inability to make the most profitable use of a property is not considered to be a hardship.

This did not end the inquiry. The Court held that the special reasons that had to be shown must relate to the zoning ordinance’s purpose for imposing the height restrictions. In this case, the thirty-foot height limit’s primary purpose was to provide adequate light, air, and open space, and to promote a desirable visual environment. Thus, the owner needed to demonstrate that its oversize structure would not offend any of the ordinance’s purposes and would neither be out of place in the neighborhood nor degrade the appearance of the neighborhood. Also relevant would be proofs that a shorter house would be even more detrimental to the neighborhood. If such proofs were available, the planning board could find that the benefit of a harmonious, consistent style of the oversize house outweighed any aesthetic detriment arising out of its height. Based on that analysis, the Court set aside the variance denial and remanded the matter to the board to allow the owner to supplement the record to address the relevant factors, and to permit the board to adopt new findings and conclusions.


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