RICHARD O'NEILL v. TOWNSHIP OF TEWKSBURY LAND USE BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3637-08T13637-08T1

RICHARD O'NEILL and ABBY O'NEILL,

Plaintiffs-Respondents,

v.

TOWNSHIP OF TEWKSBURY LAND USE

BOARD,

Defendant-Respondent,

and

MARK WOOD and KATHY WOOD,

Defendants-Appellants,

and

THE TOWNSHIP OF TEWKSBURY,

Defendant-Respondent.

____________________________________

 

Argued April 13, 2010 - Decided

Before Judges Parrillo, Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-62-08.

Gary S. Kull argued the cause for appellants (Carroll, McNulty and Kull, LLC, attorneys; Mr. Kull and Heather E. Simpson, of counsel and on the brief).

Peter J. Wolfson argued the cause for respondents Richard O'Neill and Abby O'Neill (Porzio, Bromberg & Newman, attorneys; John J. Bonelli, on the brief).

Robin J. Willner argued the cause for respondent the Township of Tewksbury (Courter, Kobert & Cohen, attorneys; Ms. Willner, on the brief).

Daniel S. Bernstein argued the cause for respondent Township of Tewksbury Land Use Board (Bernstein & Hoffman, attorneys; Mr. Bernstein, on the statement in lieu of brief).

PER CURIAM

Defendants Mark and Kathy Wood appeal from the judgment of the Law Division dated March 6, 2009, determining that a tennis court they built in their back yard violates setback regulations of the applicable municipal zoning ordinance and must be removed. We affirm.

The dispute devolved into unfortunate, lengthy litigation among neighbors and municipal government because errors were made about the meaning of a sufficiently clear, but previously unapplied, ordinance that required the tennis court to be situated at least forty feet from the property line. Rather than heed the ordinance, the defendants relied on the mistaken interpretation of the local zoning official that the ordinance did not apply to their tennis court. The Township Land Use Board then perpetuated the error by also misinterpreting the ordinance to avoid an unpalatable result, officially admitting an error and compelling defendants to remove a tennis court that was already built.

With a few exceptions, the relevant facts are not in dispute. The Woods and the O'Neills live on adjacent lots in the Township of Tewksbury. The Woods' lot is an elongated, trapezoidal shape, 3.386 acres in size, with depth of approximately 1,000 feet, road frontage of more than 200 feet, and width decreasing from the road to sixty-five feet at the far rear of the lot.

In April 2005, defendant Mark Wood asked the Township zoning officer whether a permit was required for the construction of a tennis court on his property. The zoning officer checked with the Township's Land Use Administrator and initially told Mr. Wood that no permit was required. A contractor began grading work for the construction of a tennis court in about May 2005.

The neighbors, plaintiffs Richard and Abby O'Neill, contacted the zoning officer and questioned whether the tennis court could be built where planned by the Woods. The zoning officer then alerted the Woods 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.

The Woods hired Ferriero Engineering to survey the property and determine the amount of impervious coverage on their lot and whether the tennis court would surpass the permitted coverage. The survey that was prepared, dated July 8, 2005, included a "Variance Map." The map indicated that the tennis court would exceed permissible impervious coverage on the Woods' lot, and a variance for that deviation was necessary.

The map also gave the dimensions of the tennis court as 120 by 60 feet. Although the small copy of the map attached in the appendix on this appeal does not show the width of the Woods' property at the location of the tennis court, it indicates that a corner of the tennis court is 27.0 feet from a side boundary line of the lot and the opposite corner is 21.5 feet from the boundary line between the Wood and O'Neill lots. It appears, therefore, that the tennis court was located in a section of the lot that has a width of about 110 feet or less. According to the legend on the map, the Woods' property is subject to a minimum side yard requirement of forty feet, thus requiring a variance for the deviation from setback regulations.

Mr. Wood met with the zoning officer to review the survey. The zoning officer said that the proposed court would require a variance for impervious lot coverage. Apparently, the two men did not discuss a variance for or the deviation from the side yard setback regulation requiring forty feet.

The Woods then researched for solutions to the lot coverage issue and eventually hired an alternative contractor to install a completely pervious tennis court made of polypropylene. By letter dated November 5, 2005, the Township engineer accepted the proposed tennis court surface as indeed pervious and thus a proposal that did not trigger the maximum impervious coverage requirements of the Township's zoning ordinance.

On November 8, 2005, work began on the installation of the polypropylene tennis court. Mr. O'Neill was away on a business trip during the first few days of construction on the Woods' lot. He first noticed that construction was in progress on the morning of November 11, 2005. Mr. O'Neill complained to the zoning officer that same morning. According to Mr. O'Neill's testimony, he eventually convinced the zoning officer that the tennis court did not comply with zoning regulations and the zoning officer agreed that he would issue a notice of violation letter to the Woods. The contractor completed installation of the tennis court on November 24, 2005, before a notice of violation was issued.

On December 1, 2005, the zoning officer issued a notice of violation letter to the Woods. Among other things, the notice stated that the tennis court required a forty-foot minimum setback from the property line. A few days later, Mr. Wood met with the zoning officer to discuss the notice. According to Mr. Wood's testimony, the officer determined at that meeting that the tennis court was in fact not a "structure" because of its pervious surface material, and therefore, it did not violate the setback regulation. According to the testimony of the zoning officer, he "basically dismissed" the first notice of violation "verbally," but did not send a letter memorializing his decision.

In the meantime, the O'Neills engaged an attorney to represent their interests in the dispute. On December 15, 2005, their attorney wrote to the zoning officer, stating that the tennis court required a forty-foot side yard setback under 726(A) of the Tewksbury Township Development Regulations Ordinance (Tewksbury or Township ordinance). In relevant part, that ordinance section states:

A. In any residential zone, a Personal Private Recreational or Athletic Facility or Activity is permitted only as an accessory use to the principal residential use on the lot and only under the following conditions:

. . . .

(10) No such accessory use or structure shall be permitted in any front yard; however, such use or structure may be located elsewhere on the lot outside of the minimum side or rear yards.

[Tewksbury Ordinance 726(A)(10) (emphasis added).]

There is no dispute that the minimum side and rear yard setback regulations for the zoning district of the Woods' property is forty feet.

On December 15, 2005, prompted by the O'Neills' attorney, the zoning officer sent a second notice of violation to the Woods stating that the tennis court did not comply with the side yard setback regulation for such an accessory use and a variance was required. Mr. Wood and Mr. O'Neill then engaged in discussions to settle the dispute, but were not successful.

Unhappy with the perceived lack of municipal action, the O'Neills filed a complaint in the Superior Court, Chancery Division, on January 10, 2006, seeking injunctive relief and removal of the tennis court. The complaint named the Woods as defendants but did not join the Township or the Township of Tewksbury Zoning Board of Adjustment.

On January 13, 2006, Mr. Wood again met with the zoning officer, who allegedly told him that the only remaining zoning issue was the height of the fencing for the tennis court, reiterating that because the surface was completely pervious, the tennis court need not comply with the setback requirements.

However, on January 19, 2006, Mr. Wood received a letter from the zoning officer suggesting that the setback issue be heard by the Board. Specifically, the letter stated:

The question has risen on whether the tennis court has to meet the minimum setback requirements for the zone district it is located in.

By definition the tennis court is considered a structure in the [Township ordinance]. This does not determine that the tennis court must meet the minimum setback requirements, however in Section 726-10 under accessory use provisions it states recreational facilities must be located outside of the minimum setbacks.

The issue is whether the tennis court being a pervious surface must follow these requirements. I believe the question should be determined by the [Board] . . . .

On March 17, 2006, the Chancery Division, on its own motion, dismissed the O'Neills' complaint without prejudice, on the ground that "primary jurisdiction" over the dispute lay with the Township.

On April 26, 2006, the zoning officer wrote to the Woods that the Board's review committee determined that their tennis court was a "structure," but that it need not meet the minimum setback requirements. The O'Neills and their attorney did not see a copy of the April 26 letter until June 1, 2006.

Earlier, on May 5, 2006, the O'Neills filed a complaint in lieu of prerogative writs in the Law Division of the Superior Court, this time including the Township as co-defendant along with the Woods. The O'Neills sought injunctive relief and damages. By order dated June 7, 2006, Judge Peter A. Buchsbaum of the Law Division dismissed the count of the O'Neills' complaint against the Woods with prejudice. The record on appeal does not reveal the reason for this dismissal.

On June 21, 2006, the O'Neills filed an appeal with the Board, seeking to overturn the decision of April 26, 2006, made by the zoning officer and the Board's review committee that the tennis court need not comply with setback regulations.

On December 19, 2006, the O'Neills, the Township, and the Board (which was not a party to the still-pending Law Division action) entered into a settlement agreement. The O'Neills agreed to dismiss voluntarily with prejudice the remaining count of their prerogative writs complaint against the Township. In return, the Board agreed that it would hear the O'Neills' appeal of the zoning officer's and the review committee's ruling within sixty-days.

Hearings before the Board were held on May 2 and October 17, 2007. Testimony was limited to issues of whether the O'Neills' appeal was timely filed under N.J.S.A. 40:55D-72a and whether the tennis court violated the Township ordinance. The zoning officer testified at the hearing, explaining his belief that the appeal was untimely and that the tennis court did not run afoul of the ordinance. He testified that the violation notices he had issued on December 1 and 15, 2005, were in error.

The O'Neills presented an expert witness who testified that the previously-quoted 726(A)(10) barred the tennis court's current placement within the minimum side yard area of the Woods' lot. The expert explained that: (1) the eleven requirements set forth in 726(A) for personal recreational accessory uses on residential property suggest "an implied need to separate this [athletic or recreational] use from the surrounding properties"; (2) in stating that the facility is to be placed "on the lot outside of the minimum side or rear yards[,]" the ordinance means that the tennis court must be placed within the "building envelope" and cannot be placed within the minimum side yard area; (3) two other sections of the Township ordinance, 719 and 706, subject tennis court fences and other similar accessory uses to setback requirements; (4) the underlying purposes of zoning under N.J.S.A. 40:55D-2 include provision of adequate open space, and the zoning officer's interpretation of the ordinance permitting "a structure to be right on the property line . . . is completely contrary to the underlying purposes of zoning."

In two resolutions dated December 5, 2007, the Board concluded that the O'Neills' appeal had been timely filed, but it affirmed the zoning officer's interpretation of the ordinance that the Woods' tennis court did not need to comply with side yard setback regulations of the Township zoning ordinance.

The O'Neills filed a new complaint in lieu of prerogative writs in the Law Division on January 25, 2008, challenging the Board's decision. After briefing and argument, Judge Buchsbaum issued a written opinion on March 6, 2009, reversing the Board's interpretation of the ordinance. The court concluded that the tennis court was built in violation of the setback regulations, as stated in 726(A)(10).

The court granted the O'Neills' prayer for relief that the tennis court be dismantled and removed, but it stayed its order to allow time for the Woods to apply to the Board for a variance to permit the court to remain in place. The Woods filed a notice of appeal.

On April 6, 2009, by agreement of the parties, the Law Division granted a further stay of its order pending appeal. It also issued a supplemental letter under Rule 2:5-1(b) in which Judge Buchsbaum stated his belief that the Woods should not be deemed to have waived their right to appeal his decision of March 6, 2009, if they proceed first with an application for a variance because the entire matter should be presented in one appeal. The record before us does not include any information about such an application for a variance.

I.

We begin by affirming Judge Buchsbaum's determination that the Tewksbury ordinance, 726(A)(10), is clear on its face and requires that a tennis court comply with side and rear yard setback regulations applicable in the zoning district.

The Woods incorrectly argue that the Board's interpretation of the disputed ordinance is entitled to substantial deference and could only be reversed by the Law Division if it were arbitrary or capricious. The Superior Court applies a de novo standard of judicial review when interpreting a local ordinance. Grancagnola v. Plan. Bd. of Verona, 221 N.J. Super. 71, 76 n.5 (App. Div. 1987). The question is one of law, not a matter of administrative or local expertise. Cherney v. Matawan Bor. Zoning Bd. of Adj., 221 N.J. Super. 141, 144-45 (App. Div. 1987); Jantuasch v. Bor. of Verona, 41 N.J. Super. 89, 96 (Law Div. 1956), aff'd, 24 N.J. 326 (1957). On appeal from the trial court, the same standard of review applies to our interpretation of a municipal ordinance. Fallone Props., L.L.C. v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004).

Furthermore, "[i]n construing a municipal ordinance, we apply the same rules of construction as are applied to statutes." Kim Real Estate Enters. v. Twp. of N. Bergen, 215 N.J. Super. 255, 257 (App. Div. 1987). "When construing a statute, courts initially consider the statute's plain meaning." N.J. State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 224 (1999) (quoting Nat'l Waste Recycling, Inc. v. Middlesex County Improvement Auth., 150 N.J. 209, 223 (1997)); accord Fin. Servs., L.L.C. v. Zoning Bd. of Adj. of Little Ferry, 326 N.J. Super. 265, 273 (App. Div. 1999). "We will not depart from the plain meaning of language which is free of ambiguity, for an ordinance must be construed according to the ordinary meaning of its words and phrases." Essex Co. Retail Liquor Stores Ass'n v. Mun. Bd. of Alcoholic Beverage Control of Newark, 77 N.J. Super. 70, 77 (App. Div. 1962).

When the language of the ordinance is clear and unambiguous on its face, we need not look beyond the literal dictates of the words to divine the legislative intent. If the legislative wording is precise and free from ambiguity, our duty is to construe and apply the legislation as enacted. We may not presume the legislative body ". . . intended something other than what it expressed by its plain language."

[Kim Real Estate Enters., supra, 215 N.J. Super. at 258 (quoting In re Closing of Jamesburg High School, 83 N.J. 540, 548 (1980)) (citations omitted).]

Township ordinance 301 defines a "Personal Private Recreational or Athletic Facility or Activity[,]" as a "recreational or athletic facility or activity conducted as an accessory use on the same lot as the principal permitted use and designed to be used primarily by the occupants of the principal use and their guests." Clearly, a tennis court built in the back yard of a residence falls within this definition. We note that inclusion of the words "activity" and "use" in the ordinance dispels any notion that the impervious or pervious surface of the structure affects the meaning of the phrase.

Ordinance 726(A) permits "a Personal Private Recreational or Athletic Facility" as an accessory use in a residential zone, but places eleven numbered conditions on that use. Subsection 10 of that ordinance states that "such a use or structure" may not be located in any front yard, "however, such use or structure may be located elsewhere on the lot outside of the minimum side or rear yards."

Although 726(A)(10) does not provide dimensions for side or rear yards, other ordinance sections do. According to 706(F)(2)(b), "[e]ach principal building shall be provided with a side yard, each at least 40 feet in width." The tennis court is not a principal building, but the ordinance provides the dimension for a side yard. Because 726(A)(10) requires personal private recreational structures or uses to be "outside of the minimum side or rear yard[,]" the forty-foot side yard requirement is applicable. According to the survey prepared for the Woods, the tennis court is situated 21.5 and 27.0 feet from the two side property lines.

The zoning officer and the Board interpreted the language of 726(A)(10) as allowing such a use all the way up to the property line. That interpretation completely ignores the phrase "outside of the minimum side or rear yards." That phrase can mean nothing other than that the use or structure is not permitted within the minimum area required to be left open as a side yard. The phrase cannot mean that the structure and use can be placed in the minimum side yard area. If that was its meaning, the phrase was not needed in the ordinance. The ordinance would have said more simply that "such a use or structure may be located elsewhere on the lot."

The Board looked beyond the plain language of the ordinance to the zoning officer's testimony about the legislative history leading to enactment of 726(A), namely, litigation in the Township in 1999 involving a professional-sized, back yard baseball field. The zoning officer testified that the focus of the so-called "Field of Dreams" litigation was on the use of the residential property and the noise and related disturbances involved rather than on the location of the baseball field, which extended in the outfield to the property line. Whether the zoning officer's testimony was accurate or not, the ordinance as enacted by the governing body includes a specific provision regarding the location of private recreational and athletic uses and facilities. It requires that such a use or structure be at least forty feet from a side or rear yard property line.

The Board's decision disregarded the plain language of 726(A)(10). The Supreme Court has stated that "'the intent of the drafters is to be found in the plain language of the enactment[,]' and 'if the language is clear, then the interpretative process will end without resort to extrinsic sources.'" Jen Elec. Inc. v. County of Essex, 197 N.J. 627, 641 (2009) (quoting Bedford v. Riello, 195 N.J. 210, 221-22 (2008)). Moreover, we find nothing inconsistent in the governing body including a minimum setback requirement as part of its legislative intent of preventing noise and disturbance from private recreational and athletic uses when it enacted the ordinance after the "Field of Dreams" litigation.

Because the language is clear, the Board erred in interpreting the ordinance not to require compliance with side yard setback regulations. The Law Division correctly reversed the Board's decision.

II.

The Law Division was also correct in affirming the Board's decision that the O'Neills filed a timely appeal of the zoning officer's ruling.

N.J.S.A. 40:55D-72a states in relevant part:

Appeals to the board of adjustment may be taken by any interested party affected by any decision of an administrative officer of the municipality based on or made in the enforcement of the zoning ordinance or official map. Such appeal shall be taken within 20 days by filing a notice of appeal with the officer from whom the appeal is taken specifying the grounds of such appeal.

This limitations period "insulate[s] the recipient of a building permit or other favorable disposition from the threat of unrestrained future challenge." Sitkowski v. Zoning Bd. of Adj. of Lavallette, 238 N.J. Super. 255, 260 (App. Div. 1990). The Township ordinance similarly requires that an appeal to the Board from an adverse zoning decision by a municipal official be filed within twenty days. See Tewksbury Ordinance 413. "[T]he time for an appeal runs from the date an interested party knows or should know of the action of an administrative officer." Sitkowski, supra, 238 N.J. Super. at 260.

The Woods argue that the O'Neills "were fully aware, at least as early as January 2006, that neither the Board nor the Zoning Officer intended to take any enforcement actions against the Woods." Further, they argue that the O'Neills filed Superior Court actions on January 10, 2006, and again on May 5, 2006, in which they sought to compel the Township to enforce the zoning ordinance. Thus, they argue, the O'Neills cannot credibly assert they did not know of an adverse decision of the municipal official until June 1, 2006.

In response, the O'Neills contend that the April 26, 2006 letter from the zoning officer to the Woods was the first official determination of the zoning officer adverse to their position. Their contention that they first learned of that determination on June 1, 2006, is not refuted by any other evidence in the record. They filed their appeal to the Board on June 21, 2006, within the twenty-day deadline.

In its memorializing resolution, the Board concluded that the O'Neills' appeal was timely. The Board found that:

B. [The zoning officer] in his December 1, 2005 and December 15, 2005 notices to Mr. Wood stated that the tennis court need comply with the setback requirements for an accessory use. In his January 19, 2006 letter [he] suggested that the setback issue be determined by the Board of Adjustment. The April 26, 2006 letter stated that the Zoning Board of Adjustment Review Committee determined that the tennis court need not meet the minimum setbacks.

. . . .

E. The Board concludes that there was no clear written document expressing [the zoning officer's] change in position, which could be appealed.

. . . .

G. The Board finds that the appellants have filed their appeal in a timely manner. . . .

The Board's factual findings regarding the time that the O'Neills first learned of an adverse decision of the zoning officer are subject to a deferential standard of review on appeal to the Superior Court. See Cell S. of N.J. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81 (2002); Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296-97 (1965). Those findings must be accepted if supported by substantial evidence in the record. See Kramer, supra, 45 N.J. at 297; N.Y. SMSA Ltd. P'ship v. Bd. of Adj. of Bernards, 324 N.J. Super. 149, 163, certif. denied, 162 N.J. 488 (1999). The Board's resulting determination of the timeliness of the appeal must be sustained on appeal unless it was arbitrary, capricious, or unreasonable. See New Brunswick Cellular Tel. Co. v. Bor. of S. Plainfield Bd. of Adj., 160 N.J. 1, 14 (1999); Kramer, supra, 45 N.J. at 296.

In his written opinion, Judge Buchsbaum found that because the zoning officer had issued two letters in the O'Neills' favor in December 2005, they "had a reason to expect that ultimately their position would be sustained." The judge determined that it was not until the O'Neills received a copy of the April 26, 2006 letter that they were "squarely put on notice that the township was not going to order removal of the tennis court." The findings of the Board and the Law Division have ample support in the evidentiary record.

As to the Superior Court complaints filed by the O'Neills before June 1, 2006, Judge Buchsbaum concluded that those causes of action were consistent with the O'Neills' understanding that the zoning officer had made a ruling in their favor. He stated that the O'Neills "sought mandatory relief requiring the township to enforce its ordinances against the Woods' tennis court; such a request for mandatory relief implicitly assumes the continuing validity of the December 2005 letters mandating removal of the [tennis] court."

We agree with the conclusions of the Law Division. In addition to the two notices of violation issued by the zoning officer to the Woods in December 2005, the only other document indicating a decision he made before April 26, 2006, was his January 19, 2006 letter to the Woods, in which he said he was unsure of whether the zoning ordinance had been violated and urged the Woods to take the matter before the Board. A building permit was never issued for the tennis court, and there is no other document in the record indicating an adverse decision of the municipal official until the April 26, 2006 letter. That letter was not provided to the O'Neills until they saw a copy as part of the first Law Division litigation on June 1, 2006.

The earlier vacillations of the zoning officer did not provide sufficient grounds to invoke the limitations provisions of the statute and ordinance and preclude the O'Neills' appeal. We conclude that the Board was not arbitrary, capricious, or unreasonable in its ruling that the O'Neills' appeal was timely filed under N.J.S.A. 40:55D-72a and 413 of the Township ordinance.

III.

The Woods argue that the trial court erred in rejecting their defenses of res judicata, estoppel, and laches. They contend that the O'Neills' prior action in the Law Division was dismissed with prejudice as to all parties, and they are barred from filing another action seeking the same remedies. As to estoppel and laches, they argue they acted in good faith, detrimentally relying upon the instructions and assurances of the zoning officer, and they built their tennis court based on the representations of the Township's agent that they did not need a permit and could build within forty feet of their property line. Further, the Woods argue that even if the zoning officer's interpretation of the statute was incorrect, it certainly was debatable, such that the Woods' reliance upon that interpretation was reasonable.

A.

With respect to res judicata, we note that the Township and the Board have not argued that the O'Neills' second prerogative writs action was barred by res judicata. For purposes of this appeal, we will assume that the Woods have standing to claim res judicata as to parties other than themselves.

The settlement agreement that the O'Neills entered into with the Township and the Board in December 2006 permitted the O'Neills to pursue their appeal before the Board. Nothing in the agreement suggests that the Board's decision was to be binding upon them without a further right to challenge an adverse decision through an action in lieu of prerogative writs under Rule 4:69. In the absence of evidence to the contrary, the settlement with the Township permitted a further action in lieu of prerogative writs by any interested party.

With respect to res judicata as applicable to the Woods themselves, we do not have a record of the circumstances or reasons for dismissal with prejudice of the first Law Division action as to them on June 7, 2006. In their brief, the O'Neills state, without citation to the appellate record: "while the Woods were originally named in the immediate action, at their own request, the O'Neills voluntarily dismissed the claims against the Woods. Thereafter, the Woods, on their own initiative, filed a motion to intervene back into the case." The reply brief of the Woods does not address this contention. We assume the reference to "the immediate action" means the second prerogative writs action resulting in the judgment that is now before us, but that assumption is not essential to our analysis.

If the Woods intervened in this action at some point to protect their interests, they will not be heard to argue that the judgment should be nullified by res judicata. Their full participation in this case through the Law Division's adverse decision is a waiver of the defense of res judicata. Cf. Wein v. Morris, 194 N.J. 364 (2008) (waiver of right to contest arbitrator's jurisdiction where parties did not raise issue until after four years of litigation and appeal of arbitration award).

In addition, even if dismissed from this action, the Woods would still be subject to an enforcement action that the Township would be ordered to pursue for removal of the tennis court. The Woods' participation in the second prerogative writs action allowed them to advocate their interests rather than rely on positions of other parties.

We conclude that the O'Neills' second prerogative writs action was not barred by res judicata.

B.

With respect to equitable estoppel, the Board did not consider the Woods' estoppel argument, determining that such equitable relief was beyond the scope of the Board's statutory authority. See Ric-Cic Co. v. Bassinder, 252 N.J. Super. 334, 345 (App. Div. 1991); Springsteel v. Town of W. Orange, 149 N.J. Super. 107, 111 (App. Div.), certif. denied, 75 N.J. 10 (1977); Jantausch, supra, 41 N.J. Super. at 93.

In its March 6, 2009 decision, the Law Division concluded that the Township was not equitably estopped from enforcing its ordinance. Judge Buchsbaum reasoned that "where an ordinance is clear on its face, estoppel is not available." The court concluded that "the ordinance's meaning is not debatable[,]" and there was "no legitimate basis for an interpretation dependent on the pervious or impervious surface of a structure, notwithstanding [the zoning officer's] testimony before the Board or the ultimate conclusion of the Board . . ., which seems to have been based more on a sympathy that this Court can well understand than on the words of the ordinance." We agree with these conclusions.

"[E]quitable estoppel . . . will be invoked . . . where [the] interests of justice, morality and common fairness dictate." Lehen v. Atl. Highlands Zoning Bd. of Adj., 252 N.J. Super. 392, 400 (App. Div. 1991). "[A] municipality may be estopped if there is reasonable reliance on a good faith act of an administrative official, within the ambit of his official duty . . . ." Williams Scotsman, Inc. v. Garfield Bd. of Educ., 379 N.J. Super. 51, 59 (App. Div. 2005) (quoting Wood v. Bor. of Wildwood Crest, 319 N.J. Super. 650, 658 (App. Div. 1999)), certif. denied, 186 N.J. 241 (2006). But the doctrine "is rarely invoked against a municipality because it could impair essential governmental functions." Grasso v. Bor. of Spring Lake Heights, 375 N.J. Super. 41, 47 (App. Div. 2004).

The burden of proving a claim or defense of equitable estoppel is on the party seeking relief. Bonaventure Int'l, Inc. v. Bor. of Spring Lake, 350 N.J. Super. 420, 436 (App. Div. 2002). That party must demonstrate, among other factors, good faith reliance on the erroneous action of the municipal official. See Grasso, supra, 375 N.J. Super. at 47; Irvin v. Twp. of Neptune, 305 N.J. Super. 652, 657 (App. Div. 1997); Twp. of Fairfield v. Likanchuk's, 274 N.J. Super. 320, 334 (App. Div. l994); Lehen, supra, 252 N.J. Super. at 400; Jesse A. Howland & Sons, Inc. v. Bor. of Freehold, 143 N.J. Super. 484, 489 (App. Div. l976); Hill v. Bor. of Eatontown Bd. of Adj., 122 N.J. Super. 156, 164-65 (App. Div. l972).

In Likanchuk's, supra, we stated:

[W]hen an administrative official in good faith and within the ambit of his duty makes an erroneous and debatable interpretation of an ordinance and a property owner relies on it in good faith, that is, there is a mistaken or irregular exercise of an [sic] ministerial function, estoppel may be appropriate. However, "where there is no semblance of compliance with or authorization in the ordinance, the deficiency is deemed jurisdictional and reliance will not bar even a collateral attack . . . ."

[274 N.J. Super. at 332 (quoting Jantausch, supra, 41 N.J. Super. at 93-94) (citations omitted).]

In other words, good faith reliance does not encompass circum-stances where the ordinance is not debatable and "there is no semblance of compliance." Ibid.

Here, the July 8, 2005 "Variance Map" prepared after a survey ordered by the Woods revealed that the property was subject to a minimum side yard requirement of forty feet, which the proposed tennis court did not meet. The map's legend noted that a variance was required. Since the Woods had this map in their possession months before construction restarted in November 2005, they cannot claim that they relied exclusively and justifiably on the zoning officer's mistaken interpretation of the ordinance.

C.

Finally, the Woods contend that the O'Neills should be barred by laches from seeking removal of their tennis court because the O'Neills waited until after the court was constructed to bring an action against them.

The doctrine of laches "is invoked to deny a party enforcement of a known right when the party engages in an inexcusable and unexplained delay in exercising that right to the prejudice of the other party." Knorr v. Smeal, 178 N.J. 169, 180-81 (2003); In re Kietur, 332 N.J. Super. 18, 28 (App. Div. 2000). Laches may only be enforced when the delaying party had sufficient opportunity to assert the right in the proper forum and the prejudiced party acted in good faith believing that the right had been abandoned. Dorchester Manor v. Bor. of New Milford, 287 N.J. Super. 163, 172 (Law Div. 1994), aff'd, 287 N.J. Super. 114 (App. Div. 1996). "The key factors to be considered in deciding whether to apply the doctrine are the length of the delay, the reasons for the delay, and the 'changing conditions of either or both parties during the delay.'" Knorr, supra, 178 N.J. at 181 (quoting Lavin v. Bd. of Educ. of Hackensack, 90 N.J. 145, 152 (1982)).

In this case, the few days in November 2005 that the tennis court was under construction did not result in a delay of action attributable to the O'Neills such that the doctrine of laches should be applied. Upon his return from a business trip, Mr. O'Neill saw the resumption of work on the tennis court, after six months of no construction activity at the site, and he immediately contacted the zoning officer. He then repeatedly spoke to the zoning officer to urge that the setback ordinance be enforced as written. His attorney did the same. Subsequently, the O'Neills filed suit twice in early 2006 to attempt to correct the violation. The Woods did not have a "justifiable reason" to believe that the O'Neills had "abandoned" their objection to the tennis court because they did not file a lawsuit seeking an injunction immediately upon seeing the construction activity on November 11, 2005. See Dorchester Manor, supra, 287 N.J. Super. at 172.

We reject the Woods' argument that laches barred the O'Neills' prerogative writs actions aimed at removal of the tennis court.

IV.

 
The judgment of the Law Division is affirmed. As did the Law Division, we will stay the Law Division's order to remove the tennis court for forty-five days to permit the Woods to apply to the Board for a variance or to seek other relief. Any further request for a stay based on an application for a variance must be presented to the Law Division. We do not retain jurisdiction.

Affirmed.

Mr. O'Neill testified that although the location of the tennis court is approximately 400 feet from his home, he opposed its construction because it "diminishes the value of my property. It clearly diminishes the scenic vistas, which is why we've lived in the home. . . . to me it's an eyesore."

The Zoning Board of Adjustment was re-constituted as the Township of Tewksbury Land Use Board over the course of this litigation. Both will be referred to in this opinion as "the Board."

The Board's memorializing resolution stated that "Section 726 was adopted as a result of the Field of Dreams litigation which involved the construction of a baseball diamond, with a backstop and dugouts, bleachers and signs on a residential lot. [The] Zoning Officer . . . was involved in the litigation and was aware of the rationale behind the adoption of the ordinance."

(continued)

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A-3637-08T1

August 20, 2010