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Lukens v. Ocean City Zoning Board of Adjustment

A-5352-08T1 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; INTERPRETATION — When a question of law is implicated, such as the interpretation of a zoning ordinance, courts are not bound by a land use board’s legal interpretation of the ordinance, and grammatical use, though not dispositive, is some evidence of legislative intent.

A charitable organization’s mission was to provide a beach experience to inner-city children from New Jersey and Pennsylvania. It purchased property located in the Beach and Dune Zone (BD Zone) of a municipality. The BD Zone was an environmentally sensitive area containing natural protections against flooding and other disasters. The municipality’s zoning laws strictly limited the types of uses permitted there. At issue was a clause that listed, under permitted uses, “necessary municipal buildings and structures for public safety… .” The charity had operated a restaurant in the BD zone as a prior non-conforming use. It now sought to replace the restaurant with a pavilion that would enable the charity to more effectively provide services to its participants. The charity applied for a permit to construct the pavilion. Its application was denied by the municipality’s zoning officer on the basis that the proposed structure was not a permitted use under the ordinance because it would be a privately-owned. The charity appealed to the zoning board, requesting interpretation of the ordinance, and in the alternative, approval of a “d” variance.

At the zoning board’s public hearing, the owner of a neighboring property across the street from the charity’s property, and twenty-three other neighbors, all opposed the application proposal. The charity testified that the proposed pavilion would function as a convenience for children visiting the beach as part of its program; that it would give the children a place to eat, relax, read, and use the bathroom during their stay at the beach; that the pavilion would be open to the general public free of charge where the public could use the bathrooms and use the facilities to rinse off sand. The charity stated “if anyone wanted to come in and get out of the sun, sit in the shade, come on in.”

Two experts testified at the hearing, with one testifying that the ordinance should be construed as prohibiting non-municipal structures in the BD Zone, and the other testifying the ordinance should be read as permitting private structures for public safety and convenience in the BD Zone. Based on the evidence presented, a motion was made to overturn the zoning officer’s decision that the proposed building was not a permitted structure in the Beach Dune Zone because it was not a municipal building. The motion was limited to whether the ordinance required structures to be municipal structures to qualify as permitted in the zone. By a vote of 4-3, the zoning board reversed the zoning officer’s decision and permitted the pavilion. The zoning board reasoned that the word “municipal” contained in the language of the ordinance modified “buildings” only, rather than both the words “buildings” and “structures.”

Subsequently, the neighbor across the street filed a complaint in lieu of prerogative writs, challenging the zoning board’s interpretation of the ordinance, arguing that, when read properly, the ordinance would not permit the proposed structure in the absence of a variance. The lower court reversed the decision of the zoning board, holding the ordinance did not contemplate privately-owned structures in the BD Zone. Its reasoning was that if the municipality’s governing body had intended for “municipal buildings” to be read separately from the word “structures,” the governing body would have separated the two phrases with a comma to effectively distinguish “municipal buildings” from “structures.” Here, the plain language of the ordinance, which is the best indicator of legislative intent, led to the conclusion that no comma was present because the two phrases were meant to be read conjunctively as “municipal buildings and structures.” The lower court pointed out that the absence of a comma was not dispositive, but rather was some evidence of intent. However, when the absence of the comma was taken together with the language and context of the ordinance as a whole, it militated against the zoning board’s interpretation of the ordinance. Reading the contested phrase against the words that followed, and against the purpose of the ordinance, supported the conclusion that “municipal buildings and structures” was intended to be a single phrase, with “municipal” modifying both “buildings and structures.” Additionally, the lower court pointed out that as a matter of common practice in the area of housing and development within any municipality, where privately owned structures are contemplated, there are housing and building codes to govern lot area, dwelling unit density, and setback distances. Since the ordinance contained no housing or building codes typical in zoning ordinances governing privately owned structures, such structures would not have been permitted. Furthermore, the lower court held that even if the proposed pavilion advanced the ordinance’s purpose, this was irrelevant where the words that outline what is permissible within the zone do not allow privately owned structures. The lower court also rejected the charity’s contention that the ordinance interpretation advanced by the landowner violated the Public Trust Doctrine. It held that doctrine was simply not applicable.

On appeal, the charity argued two points. The first was that the lower court failed to give appropriate deference to the interpretation of the ordinance by the entity charged with its enforcement, namely the municipality’s zoning board. The second point was that the lower court’s interpretation of the ordinance was riddled with construction errors that led to an incorrect interpretation of the ordinance.

The Appellate Division rejected each point raised by the charity and affirmed the lower court’s ruling for the reasons expressed in the lower court’s “well-reasoned” opinion. The Court added that a lower court reviewing a zoning board’s action is limited to deciding whether the board’s decision was arbitrary, capricious or unreasonable. However, where the issue before the lower court is the interpretation of an ordinance, a question of law is implicated, and courts are not bound by a legal interpretation of an ordinance by a zoning board. And, as with any question of law, zoning ordinance interpretations are reviewed, both in the lower court and on appeal, de novo. The Court recognized that municipal officials and zoning boards are familiar with local circumstances and proper deference to its interpretation is required. It agreed with the lower court’s approach to statutory construction and agreed with its conclusion. Furthermore, of great importance to the Court, was the absence of any lot area, height, dwelling unit density or setback limitation in the ordinance. Thus, the conclusion was inescapable to the Court that the ordinance did not permit the erection of privately owned structures, irrespective of the laudable purposes for which the charity sought to construct the pavilion.


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