STEFANO TOMEO v. TOWNSHIP OF LIBERTY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3184-07T33184-07T3

STEFANO TOMEO AND

CYNTHIA REEVES TOMEO,

Plaintiffs-Respondents,

v.

TOWNSHIP OF LIBERTY, TOWNSHIP

OF LIBERTY BOARD OF ADJUSTMENT

AND LIBERTY TOWNSHIP ZONING

OFFICER ERIC SNYDER,

Defendants-Appellants.

__________________________________

 

Submitted: January 7, 2009 - Decided:

Before Judges Axelrad, Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-543-05.

Kimarie Rahill McDonald, attorney for appellants.

Stefano Tomeo and Cynthia Reeves Tomeo, respondents, pro se.

PER CURIAM

Defendants, Township of Liberty, Township of Liberty Board of Adjustment, and Liberty Township Zoning Officer Eric Snyder (collectively "Board"), appeal from a Law Division order that reversed the Board's decision denying plaintiffs' application for a height variance, N.J.S.A. 40:55D-70c(1)(c), to construct a two-story detached garage as an accessory structure in a residential zone. The Board challenges Judge John J. Coyle, Jr.'s findings that its actions were arbitrary, capricious, and unreasonable, expressed in a comprehensive twenty-two page written opinion dated January 22, 2008. We affirm substantially for the reasons expressed by the trial court.

Plaintiffs own a three-acre parcel in Liberty Township, known as 10 Mountaintop Drive, Block 11, Lot 42.36, located in a residential zone. The property was developed with a single family home with an attached garage. Plaintiff Stefano Tomeo desired to build a detached two-story garage, consisting of three bays on the first floor for storage of his automobiles and storage space on the second floor for his automobile memorabilia. On May 18, 2004, plaintiff received a zoning permit for the accessory structure from Zoning Officer Snyder, and based on that, a construction permit the same day. According to plaintiff's testimony, Snyder specifically told him a week before that he could build a detached garage thirty-five feet high, and in reliance plaintiff prepared plans which he showed to Snyder and the construction official, depicting a building approximately twenty-nine feet from grade. The township ordinance limits accessory structures, such as detached garages, to a maximum height of sixteen feet.

Plaintiff began constructing the garage. On September 7, 2004, Snyder visited the property pursuant to a neighbor's complaint about the height of the building. By then, the building was slightly under sixteen feet, far in excess of what was needed for a one-story garage, even though plaintiff had not yet begun construction of the second floor. Snyder hand-delivered a letter to plaintiff later that day, instructing him to stop work and either prepare revised conforming plans or apply for a variance. According to plaintiff, upon advice of counsel, he completed the second floor and placed the roof on the building to protect his investment, partially completing the two-story garage around the end of September.

After receipt of summonses for zoning violations and agreement to stay the municipal court proceedings, on February 8, 2005, plaintiff filed an application with the Board for a "c" variance from the height restrictions of an accessory structure. N.J.S.A. 40:55D-70c(1)(c). The Board held hearings on May 24, 2005 and August 30, 2005, during which plaintiff and Snyder testified, along with several objectors. Plaintiff explained his reliance on the zoning officer's representation as to the height requirement for the accessory use, Snyder's review of his plans in issuing the permit, and his expenditure of money to construct the garage. Plaintiff referenced the plans and described the structure, introducing photographs, and identifying the sixteen-foot mark that would have been permitted by ordinance. He also testified about buffering trees he planted between the garage and the sideline of his property. In response to comments by the objectors, plaintiff assured that the garage would not be used for commercial purposes but only for his personal car collection and related memorabilia.

Snyder testified that plaintiff showed him a map of the property and showed him where he wanted to put the garage, but Snyder claimed he did not see the plans. Although they talked about accessory uses, Snyder did not recall having any conversation with plaintiff regarding height.

The Board members made no comments about plaintiffs' application prior to unanimously denying the variance. The Board's September 27, 2005 memorializing resolution stated that plaintiffs failed to meet the "peculiar and exceptional practical difficulties" or "undue hardship" and other requirements of N.J.S.A. 40:55D-70c(1), and the listed negative criteria of N.J.S.A. 40:55D-70d. The resolution continued:

Without deciding whether the zoning officer had legal authority to issue a stop work order, the Board concluded from the testimony and evidence submitted, that the Applicant was on notice that the structure was in violation of the local zoning ordinance. The testimony further showed that as of September 7, 200[4], when the Applicant was advised that the proposed structure was in violation of the local height ordinance, that the Applicant had not begun building the second floor of the structure.

Although the Applicant argued a financial hardship due to his reliance upon the zoning and building permits that were issued, the Board concluded that it was a self-inflicted hardship that failed to warrant the granting of the requested variance.

Plaintiffs challenged the Board's decision in an action in lieu of prerogative writs, asserting municipal estoppel (First Count) and appeal from variance denial (Second Count). They emphasized that plaintiff prepared plans and spent substantial money to construct a specific type of building in good faith reliance upon the inaccurate information provided by the zoning officer and the issuance of municipal permits, and acted reasonably under the circumstances after receipt of Snyder's notice. Plaintiffs argued the Board failed to consider and analyze their claims of detrimental reliance and financial hardship, focusing solely on the fact they continued construction after September 7, 2004.

The Board characterized the hardship as self-created, which did not justify a variance. The Board argued that plaintiff did not act in good faith and failed to mitigate damages upon receipt of Snyder's September 7 notice of the violation.

The trial court agreed with plaintiffs. Judge Coyle issued the January 22, 2008 written opinion and order, finding plaintiffs presented credible evidence that the Board's action was arbitrary, capricious and unreasonable; and reversing the decision of the Board and remanding with instructions to grant the permits.

The court found the zoning permit was issued in error and was satisfied the record supported a finding that Snyder, as opposed to Tomeo, was at fault for the mistake, based on either of two possible scenarios:

(1) "Snyder made an error by failing to even explore the issue of height. He may have failed to verify, either by looking at the plans or asking, that the building would be either at or below sixteen feet"; or

(2) "[Snyder] did verify the height, but applied the wrong height restriction. Tomeo suggested this scenario when he testified that Snyder told him the week prior that the maximum height is 35 feet. This finding would be plausible since 35 feet is the maximum height for non-accessory structures. Snyder may have simply confused the different requirements."

The court rejected as implausible and unsupported by the record that plaintiff, not the zoning officer, was the party at fault.

The court determined a fact-based inquiry and fault-based analysis was the appropriate method for determining whether these plaintiffs had proven municipal estoppel and hardship. See Hill v. Borough of Eatontown Bd. of Adjustment, 122 N.J. Super. 156 (App. Div. l972), as interpreted by Cohen v. Bd. of Adjustment of Borough of Rumson, 396 N.J. Super. 608, 614 (App. Div. 2007); Lehan v. Atl. Highlands Bd. of Adjustment, 252 N.J. Super. 392, 400 (App. Div. l99l). The court chose not to analyze whether the municipal officer had any reasonable basis for his decision and whether the ordinance was free from doubt. See Twp. of Fairfield v. Likanchuk's, 274 N.J. Super. 320 334 (App. Div. l994); Howland & Sons v. Borough of Freehold, 143 N.J. Super. 484, 489 (App. Div. l976).

The court concluded that plaintiffs had satisfied their burden, as they reasonably relied upon the zoning officer's action to their significant detriment. See Palatine I v. Planning Bd. of Twp. of Montville, 133 N.J. 546, 563 (1993), overruled on other grounds, D.L. Real Estate Holdings, L.L.C. v. Point Pleasant Beach Planning Bd., 176 N.J. 126, 135 (2003). Specifically, plaintiff acted in good faith reliance on the mistakenly issued municipal permits in expending funds and commencing construction of a specific type of structure called for in the plans to house and exhibit his automobile collection. The court determined the Board acted arbitrarily and capriciously in providing no analysis of and affording no weight whatsoever to plaintiffs' detrimental reliance claim but, rather, summarily concluding that merely because the stop work order was issued prior to the start of work on the second floor, plaintiff's reliance was not in good faith and his detriment was self-inflicted. The court noted plaintiff's testimony about the significant expenditure for material and construction costs between the issuance of the permits on May 18, 2004 and the stop work order on September 7, 2004, and the fact a building within the height restriction would not serve its intended purpose.

The court also found plaintiffs satisfied the positive criteria, that they would suffer an exceptional or undue hardship, N.J.S.A. 40:55D-70c(1)(c), and the negative criteria, that the variance would not result in a substantial detriment to the neighborhood (public good) or the zoning plan, N.J.S.A. 40:55D-70d.

On appeal, the Board argues the trial court made inappropriate and overly broad assumptions and improperly imposed its own finding of fact that plaintiff did not consciously misrepresent the height of the garage to evade the ordinance. The Board also argues the court applied faulty rationale in following the Hill case; rather, it should have explored the issue of whether the ordinance is free from doubt, and if it determined the Board made insufficient findings as to facts critical to whether municipal estoppel should be applied, the matter should have been remanded to the Board.

Although we are cognizant of a court's limited scope of review of a municipal board's action, we are not persuaded by the Board's arguments. When we consider an appeal of a trial court's review of a municipal board's determination, we are bound by the same standard as the trial court. New York SMSA, Ltd. P'ship v. Bd. of Adjustment, Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). We defer to a municipal board's decision, and such decisions should be overturned only when proven arbitrary, capricious or unreasonable. Ibid. "Because variances should be granted sparingly and with great caution, courts must give greater deference to a variance denial than to a grant." Ibid. A court's scope of review is not to substitute our judgment for that of the municipal board and "not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record." Jock v. Zoning Bd. of Adjustment, Twp. of Wall, 184 N.J. 562, 597 (2005).

Upon reviewing the record, we are satisfied the court did not abuse its discretion in determining that a remand was not necessary as the record clearly supported the finding of fault on the part of the municipal officer. Judge Coyle's opinion was comprehensive; he explained the split of authority among our panels on the issue of municipal estoppel and his reason for adopting one methodology over another, following what we perceive as a more rational and equitable course under the totality of the circumstances. The record supports the court's finding that the Board's action was arbitrary under the circumstances and that a height variance was warranted based on plaintiffs' demonstration of the positive and negative criteria of N.J.S.A. 40:55D-70c(1)(c) and -70d.

Affirmed.

 

"Plaintiff" shall refer to Stefano.

(continued)

(continued)

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A-3184-07T3

February 23, 2009