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Nisch v. Ocean Beach & Yacht Club

A-1832-09T2 and A-2104-09T2 (N.J. Super. App. Div. 2011) (Unpublished)

COMMUNITY ASSOCIATIONS; SELECTIVE ENFORCEMENT — Where a community homeowners association allows one owner to deviate from its architectural regulations, but denies another owner the right to do so, there is no selective enforcement where the alleged deviations were significantly different, one from the other.

All residents of a residential community were required to be members of the community’s homeowners association. The association had authority to regulate building construction, renovation, and maintenance in the community. When the community was founded, there were no restrictions on how many building stories were permitted. Eight two-story houses were constructed free of such restrictions. Subsequently, a new section was built. It was specifically restricted to single-story homes. Eventually, the association extended the single-story restriction to the entire community. The revised rules and regulations permitted the owners of existing two-story homes to rebuild or remodel, but not to exceed the maximum height under the new zoning code or their previous height, whichever was greater.

One owner had received errant approval from the association to build a home inconsistent with these restrictions. The owner sued the association, and under the settlement, if another owner was permitted to build in violation of height restrictions, and the settling owner was denied similar permission, he could seek judicial review based on selective enforcement. As part of the settlement, the owner agreed to remove a spiral staircase that ran to a roof deck. At about the time of this dispute, an owner of a preexisting two-story house sought permission to replace the home with one that would be three feet higher, allegedly to comply with federal regulations. The previously settling owner then took the position that the association had engaged in selective enforcement when the other owner was given permission to build a home at a greater height. On that basis, he refused to remove the stairs and railing running to his roof deck as required under the settlement agreement. The association also notified the other owner that it had erred when it had granted permission to build. The second owners refused to change his plans.

Based upon testimony that the exemption was required under federal regulations, the association sued both owners seeking a declaration of rights. The lower court dismissed the action against the second owner. It denied a motion by the first owner for permission to retain the stairs and railing. At that time, other property owners filed suit to challenge the building restrictions, and the court joined the first owner’s claims with this litigation. In light of the testimony that the second owner’s construction was necessary under federal regulations, the lower court determined the association had not engaged in selective enforcement. It ordered the first owner to remove the stairs and railings within thirty days.

On a consolidated appeal, the Appellate Division addressed whether the association had engaged in selective enforcement when it allowed the second owner to build a house three feet higher than permitted by the association’s regulations. The Court concluded there was no selective enforcement because there was no evidence indicating that the association had any discriminatory intent between the first owner and the second owner. Although the first owner’s settlement required him to remove the stairs so that the roof deck could not be used, other deviations from the building requirements were permitted to remain.

Additionally, the Court found the nature of the alleged deviations were significantly different. The first owner was not required to lower his roof to the maximum permitted height; rather he had agreed to remove a staircase. The second owner received permission to build three feet over the regulation’s height limit in order to comply with federal regulations. Thus, the Court agreed with the lower court that the association did nothing unreasonable and had not engaged in selective enforcement.


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