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O’Neill v. Township of Tewksbury Land Use

A-3637-08T1 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING — A tennis court may be considered to be a structure and thus be subject to a zoning ordinance’s minium setback requirements.

An owner of residential property asked a municipal zoning officer whether a permit was required for the construction of a tennis court on his property. Initially, the officer told the owner that no permit was required. The owner authorized a contractor to begin grading work for the court. Neighbors who owned adjacent land contacted the zoning officer and questioned whether the tennis court could be built. The zoning officer then told the neighbors that because their proposed tennis court would be an impervious surface, a grading and surface water management plan would be required before construction could proceed.

In response, the owner authorized a survey of the property to determine whether the court’s impervious coverage would exceed what was required under the applicable ordinance. The survey included a variance map, which indicated that the tennis court would be about 22 feet from the boundary line of the neighbor’s property. According to a legend on the map, the owner’s property was subject to a minimum side yard requirement of 40 feet, thus requiring a variance for the deviation from setback regulations.

The owner, however, focused on the impervious coverage, which would exceed the ordinance limit and would require a variance. The owner chose to construct a completely pervious tennis court so as to not trigger the maximum impervious coverage requirements of the municipal ordinance. Work began on the installation of the tennis court. The neighbor, upon returning from a business trip, noticed the construction in progress and told the zoning officer that the tennis court did not comply with zoning regulations. The zoning officer said he would issue a notice of violation, but none was sent before the tennis court was completely installed. A violation notice was sent, yet the zoning officer told the owner he believed the tennis court was not a structure because of its pervious surface material, and therefore, did not violate the setback regulation. The neighbors hired an attorney, who wrote to the zoning officer, stating the tennis court required a 40 foot side yard setback under municipal ordinance because it was a private recreational or athletic facility that was an accessory use to a principal residence. The zoning officer issued a second notice of violation because of this, yet then told the owner that he thought because the surface was completely pervious, the tennis court need not comply with the setback requirements, and subsequently told the owner the setback issue should be heard by the zoning board of adjustment.

The board’s review committee determined the tennis court was a structure, but that it did not need to meet the minimum setback requirements. The neighbors filed an appeal of both the zoning officer’s and committee’s decision. The board affirmed the zoning officer’s interpretation of the ordinance. The neighbors filed a lawsuit challenging this decision. The lower court reversed the board’s interpretation of the ordinance, finding the tennis court was built in violation of the setback regulations. The lower court ordered that the tennis court be dismantled and removed, but stayed the order to allow the owner time to apply to the board for a variance to permit the court to remain place.

The Appellate Division affirmed the lower court’s ruling that the ordinance clearly required that a tennis court comply with the side and rear yard setback regulations applicable in the zoning district. The ordinance permitted a personal private recreational or athletic facility as an accessory use in a residential zone, but placed conditions on its use – specifically that such use or structure be located on a lot, other than a front yard, outside of the minimum side or rear yards. The Court concluded that the ordinance, which required a principal building to have a side yard at least 40 feet in width, applied to prohibit the tennis court at issue, which was situated 21.5 and 27 feet from the two side property lines. The Court said the board looked beyond the plain language of the ordinance in favoring the zoning officer’s interpretation.

The Court also held that the owner was prohibited from any equitable relief for his reliance upon the zoning officer’s representations. The owner was on notice, from the survey he commissioned, that the property was subject to a minimum side yard requirement of 40 feet and that a variance was required to install the tennis court. Since the owner had the map in his possession months before construction was substantially completed, the Court concluded he could not claim he relied exclusively and justifiably on the zoning officer’s mistaken interpretation of the ordinance. Further, the owner could not argue that he reasonably believed the neighbors had abandoned their objection to the tennis court because of any delay, as the neighbor immediately contacted the zoning officer to complain of construction work upon his return from a business trip.

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