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Miller v. Abbott

A-6661-06T1 (N.J. Super. App. Div. 2008) (Unpublished)

CONTRACTORS; DEFAULT — Where a property owner summarily orders its contractor to permanently leave the premises, the owner is denying the contractor an opportunity to remedy those parts of the job that the owner finds unsatisfactory, and therefore the owner may not be entitled to damages for non-conformance on the contractor’s part.

Two homeowners purchased a property that abutted a canal. They later gained approval to construct a house and also received a variance that allowed them to build an outdoor staircase leading to a rear deck. The variance was conditioned on the homeowners not building a structure that would impede their neighbor’s view of the water. About sixteen years later, the homeowners wanted to replace the bulkhead along the canal. It was rotting. They also wanted to modify their deck. The homeowners obtained municipal and state approval to replace the bulkhead and to construct two docks. They began construction on the entire project, but never obtained approval for the reconstruction of the deck. Three months later, the municipality’s zoning officer advised the homeowners that the deck did not conform to a municipal ordinance requiring that any deck more than eighteen inches above grade be set back more than ten feet from the bulkhead. The homeowners appealed the zoning officer’s determination to the municipal board of adjustment.

While the matter was on appeal, the municipal solicitor, who was also a municipal court judge in a neighboring municipality, sent a letter to four municipal officials directing them to allow the project to proceed. One of the applicant-homeowners was an attorney for the same neighboring municipality. Following the solicitor’s letter, a construction permit for the deck was issued and the deck was built. At the same time, the solicitor also notified all parties that, to avoid any appearance of impropriety, she was withdrawing from the matter. Subsequently, the municipality told the homeowners that they had violated the state construction regulations. A stop work order was issued. The lower court, in an action brought by the homeowners, upheld the municipal officer’s determination that the grade was to be measured according to the level that existed at the time the first deck was constructed. The lower court, however, restrained the municipality from imposing any sanctions or penalties so that the homeowners could apply for approval of the newly constructed deck.

The homeowners sought approval for all necessary variances that would have allowed the deck to remain and also sought permission to construct a spiral staircase leading to the deck. At a hearing before the zoning board of adjustment, the next door neighbors testified that the new deck interfered with their view of the waterfront and that their right to air, light, and open space were negatively affected by the deck. The neighbors also raised privacy concerns, testifying that the deck came within three feet of their living room window. The board granted the requested variances and also approved construction of the spiral staircase. It found that the spiral staircase did not pose any detriment to the public good or violate the intent of the zoning ordinance. The board also found that not granting the variance would have imposed an undue hardship on the homeowners. The neighbors sued to overturn the board’s decision. The lower court rejected the neighbor’s argument that the board’s decision was arbitrary, capricious or unreasonable, and upheld the decision.

On appeal, the Appellate Division pointed out that decisions by municipal boards were not to be overturned unless found to be arbitrary, capricious or unreasonable, but that approval of variances to permit nonconforming uses are to receive less deference than denials of variances. It also pointed out that a variance based on undue hardship is available only to address a property’s physical condition and the degree to which the property’s use would be limited by conforming to the zoning ordinance. They aren’t to be granted to address a property owner’s personal or financial hardship. Then, the Court disagreed with the board’s determination that the variance was necessary to improve drainage at the property and found that, had the deck been build according to code, the drainage would not have been affected. It also found no evidence to support the board’s determination that the property’s location made it extremely difficult for the homeowner’s to comply with municipality’s land use requirements. The Court noted that the approvals received from the New Jersey Department of Environmental Protection did not constitute permission to construct the deck and since the homeowners never requested permission from the municipality to construct the new deck, the neighbors and other nearby residents were never put on notice of the project. Noting the photographs on the record, the Court, in disagreement with the lower court, found that the expanded deck negatively affected both the neighbors’ view and their privacy. It also found that the conditional variance granted for the first deck should have put the homeowners on notice that the neighbors were concerned about blocking their view, and that by building the deck without a permit or a variance, the homeowners acted unreasonably. Therefore, any hardship on them was self-imposed.

The Court noted that for the granting of a use variance, an applicant is required to provide positive criteria, i.e., shown the reasons why the requested use is inherently beneficial, and counter the negative criteria by showing that approval of a variance would not negatively affect the public good or intent of the zoning plan. In this case, it found that there were no particular characteristics of the house or property that justified a variance for the spiral staircase or why a spiral staircase was particularly suited to the property. The Court also found that there was no basis for the board’s determination that the spiral staircase made a positive architectural statement since no architectural drawings of the staircase were presented to the board. It pointed out that since the homeowners’ property was similar to the other properties in the area, using the homeowner’s logic, any of the neighboring property owners could have obtained a variance for their own property on the same basis as the homeowners. This would have defeated the purpose of the zoning ordinance which banned outdoor staircases leading to the second floor of a single family house. Thus, the Court reversed the lower court’s decision that had affirmed the granting of the variance for the deck and the spiral staircase.


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