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Tomeo v. Township of Liberty

A-3184-07T3 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; VARIANCES — Where a property owner proves that it would suffer an exceptional undue hardship if not granted a variance and also that the variance would not result in a substantial detriment to the neighborhood or a zoning plan, it is entitled to receive the variance even if it had already completed construction in the absence of a variance, especially where the construction was performed pursuant to an erroneously issued zoning permit on which the owner reasonably relied.

A homeowner wanted to build a detached two story garage on his property. He received a zoning permit and a construction permit for the proposed structure. The homeowner alleged the zoning officer who granted the permit told him he could build the garage thirty-five feet high. In reliance thereon, the homeowner prepared plans (which he showed to the zoning officer and the construction official) depicting a building twenty-nine feet high even though a municipal ordinance limited accessory structures to a maximum height of sixteen feet.

The homeowner began construction. When the garage was close to sixteen feet high, the zoning officer delivered a letter instructing the homeowner to stop work and either prepare revised conforming plans or apply for a variance. The homeowner completed the second floor and placed a roof on the building to protect his investment. He then filed an application for a variance from the height restrictions applicable to the structure. The municipal board of adjustment held hearings in which the homeowner, zoning officer, and several objectors testified. The homeowner explained his reliance on the zoning officer’s representation as to the height requirement, his reliance on the officer’s review of his plans in issuing the permit, and his own expenditure of money to construct the garage. He also testified that he planted buffering trees between the garage and the sideline of his property. He assured the board that the garage would not be used for commercial purposes. The zoning officer testified that he did not recall the conversation with the homeowner about the structure’s height, and claimed he did not see the plans. The board members made no comments about the application prior to unanimously denying the variance. In its resolution, it noted the homeowner: (i) created his own hardship by disregarding the officer’s request to cease construction of a structure in violation of the height ordinance; and (ii) failed to meet the standard of undue hardship required for a variance grant. The homeowner filed suit, challenging the board’s denial as arbitrary and capricious. The homeowner alleged that he prepared plans and spent substantial amounts of money to construct the garage in good faith reliance on inaccurate information provided by the zoning officer and the issuance of municipal permits. He further alleged that he acted reasonably to safeguard his investment after he received the cease and desist notice.

The lower court agreed with the homeowner, finding that he presented credible evidence that the board’s action was arbitrary, capricious, and unreasonable. The court held the zoning permit was issued in error and found the zoning officer at fault for the mistake. It further concluded that the homeowner proved he reasonably relied upon the zoning officer’s action to his significant detriment. The court held that the board afforded no weight to the homeowner’s detrimental reliance; rather, the board merely concluded that because the stop work order was issued prior to the completion of the project, the homeowner’s reliance was not in good faith and his detriment was self-inflicted. The court also found: (a) the homeowner proved that he would suffer an exceptional or undue hardship if not granted the variance; and (b) that the variance would not result in a substantial detriment to the neighborhood or the zoning plan. For those reasons, the lower court reversed the board’s decision.

On appeal, the Appellate Division affirmed the lower court’s decision. It held the lower court did not abuse its discretion when it found that the record clearly supported fault on the part of the zoning officer and reasonable reliance by the homeowner.

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