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Historic Paulus Hook Association v. The Zoning Board of Adjustment for the City of Jersey City

A-4001-08T2 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; APPEALS — Appeal of an administrative zoning officer’s decision must be taken within twenty days after the date the interested party knew or should have known of the officer’s action.

Owners of property located in a municipality’s historic district discussed, with the municipal Historic Preservation Officer (HPO), their desire to rehabilitate a carriage house situated on the property. After several architectural revisions, a permit was sought to begin the renovations. Because of its location, any construction was subject to the oversight of the municipality’s Historic Preservation Commission. Pursuant to local legislation, the Commission was required to review the owners’ application for a permit application and grant approval for the rehabilitation before any work would be permitted on the property. However, as to minor alterations and ordinary maintenance and repairs, the HPO had the discretion to issue approvals known as Certificates of No Effect (CNE). In this case, the HPO granted approval for specifically defined minor rehabilitative work. The proposal was independently reviewed by a zoning officer, and a permit was issued.

Several months later, the HPO realized the work being done on the property exceeded the scope permitted by the CNE. Notably, a wall was increased in height. After the HPO received assurances that the wall would be lowered, the work continued. Several months after, the HPO again was alerted that the wall framing was raised in height. The HPO told the owners by letter that they again had exceeded their bounds and had to speak with the zoning officer. The zoning officer approved revised plans to allow the roof to be raised in height; the HPO had refused to issue another CoNE as the work would be too extensive. The owners did not gain the necessary approval from the Commission.

A construction permit notice was also issued. It had to be clearly posted on the premises, but the owners and their contractor did not do so. The HPO was unaware that updated permits had been issued on the revised plans, allegedly believing the work being performed was an effort to undo the previously completed unauthorized construction.

A little more than one month later, a community association, whose office was three dwellings away from the carriage house, filed an appeal of the zoning officer’s actions with the municipality’s zoning board. A stop work order was not issued for another two months. By then, ninety percent of the rehabilitation work had been completed. The zoning board, after taking testimony, held that the association’s appeal was out of time, having been filed more than twenty days after the date when the association should have known of the zoning officer’s decision regarding the raising of the roof.

The Association filed suit, focusing on the rejection of its appeal as untimely. However, the lower court addressed the merits of the zoning officer’s actions. While reversing the decision of the board of adjustment on the timeliness of filing, it also found the zoning officer could not lawfully issue permits without the Commission’s or the HPO’s appropriate approval, and the owners had to obtain appropriate approvals from the Commission prior to resuming work. The owners appealed.

On appeal, the Appellate Division held the lower court erred when it concluded that the zoning board was mistaken and the association’s appeal was timely. Based on the record, the Court found the board’s decision entirely sustainable, given that the appeal period runs from the date an interested party knows or should know of the action of an administrative officer. The Court concluded that the board’s critical finding that the Association should have known of the zoning officer’s decision when work recommenced on the roof was ignored by the lower court and was entitled to deference.

The Court, however, found the parties impliedly consented to allow the lower court to decide the substantive question whether the zoning officer had the legal right to issue permits in the absence of the Commission’s or the HPO’s authorization. Then, the Court affirmed the lower court’s conclusion that the municipal code directed the owners to seek approval from the Commission after the HPO refused to authorize the roof plans, rather than seek permits from the zoning officer. Further, the Court emphasized that the zoning officer should have halted the process in the obvious absence of either Commission or HPO approval.

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