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McLaughlin v. Borough of Avalon

A-0777-08T1 and A-0824-08T1 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; INTERPRETATIONS; APPEALS — The time for an appeal of a decision by an administrative zoning officer runs from the date that the interested party knows or should have known of the action and the statutorily imposed time limitation was created to insulate the recipient of a building permit or other favorable disposition from the threat of unrestrained future challenges.

In July, 2007, a homeowner began building a pool. In October, 2007, during an open segment of municipal planning/zoning board’s public session, a neighbor complained that the pool’s construction was not in conformance with the municipality’s ordinance. He claimed that the coping around the pool’s edge extended well beyond the limit set by the ordinance. The board directed the neighbor to contact the municipal zoning official. The zoning official explained that he would respond in writing to the complaint, but if he did not give the neighbor the satisfaction he desired, the owner could request an interpretation from the board by filing an application with that body, pay application and escrow fees, and seek a hearing. After meeting with a zoning official, the official sent the neighbor a letter stating that he believed the pool met the zoning ordinance’s minimum requirements because he considered the pool to be above-ground. Rather than appeal, the neighbor sent a series of letters to various municipal officials. Finally, in January, 2008, the neighbor appealed to the board. The board determined that the appeal was time-barred since it was filed after the twenty-day limit for the filing of an appeal of an action by a zoning official. Thus, it concluded that it lacked jurisdiction to consider the appeal. The neighbor appealed.

The lower court held in favor of the neighbor and ordered the pool owner to either comply with the ordinance or remove the pool. It concluded that the coping issue was not time-barred because the coping claims were never specifically dealt with by an administrative official. It then applied the ordinance and found that the pool construction did not comply with the ordinance which required coping to extend no more than two inches above grade. In doing so, the lower court held that the ordinance did not differentiate between in-ground and above-ground pools and held that “if that is what they meant to distinguish, they should have said so.” The pool owner and the municipality appealed, claiming that the neighbor’s appeal to the board was time-barred and that the lower court erred in its interpretation of the ordinance.

The Appellate Division reversed, holding that the statutorily imposed time limitation was created to “insulate the recipient of a building permit or other favorable disposition from the threat of unrestrained future challenges.” The Court ruled that “[t]he time for an appeal runs from the date an interested party knows or should know of the action of an administrative officer.” Here, it believed the neighbor was “fully versed in both his understanding of the relevant ordinances and the course of the pool construction” at his appearance at the October, 2007 board meeting. It found that even if the zoning officer’s letter to the neighbor had not addressed the coping issue, it was irrelevant because the neighbor’s focus was on the zoning officer’s finding of compliance. It also noted that the neighbor was repeatedly advised of the appropriate methodology to challenge the officer’s decision, but ignored those directions. Consequently, the neighbor should not be rewarded for his attempt to bypass the “appropriate avenue of redress.” Moreover, the Court found that this was not a case where the neighbor was lulled into a sense of security or misled because, at every juncture, he was advised by government officials of the proper course of action. Since the neighbor raised the coping issue at the October, 2007 hearing, the Court believed he knew or should have known that the coping issue was considered by the administrative officer when he determined that the construction complied with the ordinance. Since the neighbor did not challenge that determination until more than twenty days after the date that it received the zoning official’s letter, he was time-barred from challenging the board’s permit grant to the pool’s owner. The Court also decided that its resolution of this issue made it unnecessary to address whether the ordinance was violated by the pool’s construction.


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