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McGinley v. The Zoning Board of Adjustment of the City of Sea Isle City

A-3532-09T4 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; VARIANCES; HARDSHIP — Good faith reliance on a zoning official’s incorrect instructions may constitute an exceptional situation, and if such reliance creates a hardship, an applicant for a variance may qualify for one based upon a hardship.

The owner of an irregular, flag-shaped, beachfront lot in a two-family residential flood area zone hired a builder to upgrade an existing duplex apartment. The builder consulted with a borough official who served as the municipality’s construction official, zoning inspector and officer, and code enforcement officer. The official told the builder that he could not build a new duplex in the same location as the existing structure because the decks fronting on a paper street were too close to the property line and because the property had a non-conforming setback on its south side yard. However, the official told the builder that he could renovate in the same footprint if he retained three walls. Based on past practices, both the builder and the official believed that three walls could be removed, stored on or off the premises, and reused without converting the project from a renovation into a reconstruction.

The builder had plans prepared and a survey conducted. The survey included a note that three of the existing walls would be incorporated in the construction work. The plans did not address removal and restoration of the walls but included a note, standard in rehabilitation projects, calling for exposure and inspection of existing systems to be reused. The plan called for extension of the sidewalls into an area that had been the first-floor deck, with a compensating reduction in the depth of the deck. The survey that showed the proposed building did not reflect that change.

After the official issued the permit, the builder questioned the adequacy of the existing pilings. He contacted the official, who then inspected them and agreed that they should be replaced. Because of the need to replace the pilings, the official took it upon himself to direct the builder to reset the structure and thereby reduce a non-conforming side-yard setback. Consequently, the structure was taken down; three of the walls were dismantled, and the wood was placed in storage. Later the wood was used to build three new walls. According to the builder, the studs from the old walls were used in the new walls. The shift of the property’s location had the effect of reducing the setback between the deck and the property boundary and dune lines. After construction commenced, a neighbor told the property owner that he opposed the project. The neighbor then commended an action in Chancery to restrain further construction. The lower court denied that motion, but advised the property owner that it was proceeding at its own risk.

The property owner then applied for variances. The neighbor, assisted by counsel, objected. By the time the hearings began, the building had been completed. The zoning board, implicitly rejecting the three-wall theory, evaluated the variances as if the structure was being newly built on a vacant lot, but took the prior configuration of the structure on the lot into consideration. The property owner and objector both presented surveys of the completed structure; the surveys varied, but the board determined that the inconsistencies were minor. Even the objector’s survey preparer testified that inconsistencies in surveys were not uncommon, and he had no reason to believe any inconsistencies between them was intentional.

Despite its rejection of the three-wall renovation rule and a proposed bump-out interpretation, the zoning board found that the building had been constructed with the official’s knowledge and approval in accordance with the plans and the official’s subsequent direction to move the structure to the north. In addition, the board found that it had been built with permits and in good-faith. The board thus concluded that construction was an extraordinary circumstance on the property, justifying variances permitting the building to remain as built. In each instance, the zoning board found that the reasons for granting the variance outweighed any detriment to neighbors and did not result in a substantial impairment of the zoning plan or ordinance. The zoning board also denied two variances; one from the restriction on a total impervious surface, and one for parking.

On appeal, the Appellate Division noted that a land use board’s decision on a variance application is entitled to deference unless arbitrary, capricious or unreasonable. Meanwhile, a variance applicant must demonstrate both that it would suffer exceptional or undue hardship without the variance, and that the variance wouldn’t result in a substantial detriment to the public good or the zoning plan. The Court found that the board’s decision finding the official’s involvement in the project an exceptional situation was well-supported; the official’s representations played a significant role in the owner’s conclusion that the setback variances were not required before construction began. An owner’s role in creating a hardship is pertinent; here, the board found that the owner had acted in good-faith.

Ultimately, the Court found the zoning board’s decision faulty because it failed to find facts and explain why, in the face of the exceptional circumstances related to the official’s role in the project, strict application of the setback requirements would result in peculiar and exceptional difficulties to the owners. Thus, the board, on remand, was required to analyze the burden the property would have to shoulder to correct the official’s mistake.


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