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Palermo v. The Zoning Board of Adjustment of the Township of Middletown

A-1308-08T2 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; ORDINANCES; INTERPRETATION — Where a term in a zoning ordinance is ambiguous, a land use board is entitled to interpret the term so long as it reaches a reasonable meaning consonant with what the drafters would probably intend if they envisioned the facts before the board.

Property owners applied for a permit allowing construction of an addition to their home. The zoning officer approved the application, subject to the owners removing their tennis court and replacing it with sod prior to requesting final building inspection for the addition. The owners made superficial changes to the tennis court in order to have it reclassified as a patio. Then, they sought a determination from the municipality that the “patio area” was now exempt from the calculation of lot coverage under the municipality’s ordinance. The zoning officer blocked a certificate of occupancy and required the property owners to remove the surface of the tennis court and replace it with either grass or plantings. The property owners asked the board to interpret the ordinance. The board held that the patio/tennis court was located a substantial distance from the home and therefore was not a patio as intended by the ordinance. It noted that the “so-called” patio still could be used as a tennis court in the future. It also held that the modifications were completely contrary to the intent of the lot coverage ordinance. The property owners challenged the board’s ruling.

The Law Division reversed, finding the board’s focus on the proximity of the tennis court to the house to be unsupported by the language of the ordinance. It found that the ordinance was clear. The board appealed the lower court’s ruling.

The Appellate Division reversed again. It held that the relevant sections of the ordinance were ambiguous when applied to the property owners’ remodeled tennis court. The ambiguity arose, the Court ruled, because the section of the ordinance defining lot coverage neither excluded nor included all patios. The Court noted that the board contended that the lot coverage provision, when informed by the ordinary meaning of the term patio, was intended to exempt only those impervious patios that were adjacent to and associated with the house. Therefore, the Court held that the board’s construction of those sections of the ordinance relating to patios and lot coverage gave those provisions “reasonable meaning consonant with what the drafters would probably intend if they envisioned the facts of this case.” Accordingly, the board’s decision was reinstated.


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