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O’Neill v. Township of Tewksbury Land Use Board

HNT-L-62-08 (N.J. Super. Law Div. 2009) (Unpublished)

ZONING — Where the language of a zoning ordinance is clear, a wrong interpretation by a local official is simply that, and the local official has no power to amend an ordinance by misconstruing it.

Homeowners sought to install a tennis court in their backyard. One of the municipality’s zoning officers advised the homeowners that no permit or variances were required. Shortly after the homeowners began constructing the tennis court, the same zoning officer advised the homeowners that there was a potential violation of the impervious lot coverage and told them they needed to comply with the municipality’s impervious lot requirements. The homeowners then installed a court with a pervious surface. Their neighbors protested. The same zoning officer in the Chancery Division sent a notice of violation to the homeowners. The neighbors also brought an action to remove the court. The zoning officer ruled that the only zoning issues concerned the height of the fence and the setback requirements. The homeowners were granted a permit to install a fence and were advised by the board that it did not have to meet the minimum setback requirements. The neighbors then brought an action in the Law Division seeking to compel enforcement of the zoning ordinance and to require removal of the court. The parties settled this claim with the proviso that the zoning board of adjustment would hear the neighbors’ appeal. The zoning board of appeals upheld the zoning officer’s determination that the tennis court did not have to meet the municipality’s sideyard requirement.

The neighbor appealed to the Law Division, and it reversed the lower court’s decision. First, it sustained the board’s determination that the neighbors’ appeal to the zoning board was timely made. It ruled that the rule relating to timeliness may be relaxed in the interest of justice. In the instant case, the zoning board had issued several official actions in the neighbors’ favor. The lower court had found that the neighbors did not have clear notice of the municipality’s position until they learned of a contrary ex parte ruling, at which point they appealed that ruling. On the neighbors’ substantive claim, it noted that the ordinance had never previously been interpreted. Thus, the lower court held that this was not a case of consistent municipal interpretation of an ordinance to which a court should defer. It held that where, as in the instant case, an ordinance is clear on its face, estoppel is not available. The lower court had found that the ordinance language was clear and excluded personal recreational facilities from sideyards. It noted that a wrong interpretation by a local official is simply that, and a local official has no power to amend an ordinance by misconstruing it. The lower court held this was especially true where the problem had been brought to the homeowners’ attention by their own professional and was not specifically raised with the zoning officer when they sought an advisory opinion from him. It concluded that the homeowners had the right to apply for a variance to seek approval of the use. In fact, it opined that the board could find that allowing the tennis court to continue in its place might constitute a better zoning solution than forcing its removal at this stage. Finally, the lower court noted that requiring removal might even constitute a hardship under either prong of the hardship tests. Therefore, it did not order removal of the tennis court, but stayed its ruling for forty-five days to allow the homeowners to apply for a variance seeking approval of the court in situ.

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