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Borough of Mantoloking v. Fitzgerald

A-3829-02T3 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; EQUITABLE ESTOPPEL—A court sets forth the four elements that form the basis for equitable estoppel against a municipality that wishes to withdraw a construction permit.

A homeowner purchased an oceanfront residence originally constructed in 1872 and in serious disrepair. The house, constructed prior to the adoption of set-back requirements, was exempt as a non-conforming use although it violated the set-back requirement for being too close to the ocean. The homeowner submitted plans, containing elevations for proposed construction, to the municipality’s zoning officer. A construction permit was issued. The homeowner continued to provide additional plans to the municipality’s construction code official showing expansions of the second and third floors of the house beyond the footprint of the first floor and further into the restricted setback. The municipal construction code official approved these plans and issued a construction permit. The municipality never notified the homeowner that the non-conforming use exemption did not permit expansion of the upper floors of the house beyond the foundation footprint. Then, the homeowner’s neighbors complained that the house’s second story violated the zoning ordinance (and obstructed their panoramic view of the ocean). The municipality issued a stop-work order. The homeowner continued construction, and the municipality sued to stop further construction.

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