HISTORIC PAULUS HOOK ASSOCIATION v. THE ZONING BOARD OF ADJUSTMENT FOR THE CITY OF JERSEY CITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4001-08T24001-08T2

HISTORIC PAULUS HOOK

ASSOCIATION,

Plaintiff-Respondent,

v.

THE ZONING BOARD OF ADJUSTMENT

FOR THE CITY OF JERSEY CITY,

Defendant,

and

ABDEL H. AMIN AND BADRIA

M. ELATAR,

Defendants-Appellants.

 
 

Argued January 13, 2010 - Decided

Before Judges Stern and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2274-08.

Lawrence H. Kleiner argued the cause for appellants.

John P. Michalski argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; John P. Beyel, of counsel; Mr. Michalski, on the brief).

PER CURIAM

This appeal pitting individual property owners against a resident historic preservation association presents a poignant example of the oft-recurring phenomena of neighbors clashing with neighbors because of construction activities that allegedly exceeded the bounds of a building permit. At issue is whether the rebuilding of a carriage house located within Jersey City's historic Paulus Hook neighborhood was properly authorized by the City's Zoning Officer and whether a challenge to the Zoning Officer's approval was timely filed with the local Board of Adjustment.

The Law Division judge, in an action in lieu of prerogative writs, determined that plaintiff Historic Paulus Hook Association (Association) had timely filed an appeal challenging the Zoning Officer's permitting actions pursuant to N.J.S.A. 40:55D-72. This finding reversed the Board of Adjustment's contrary conclusion, but did not result in the matter being remanded to the Board of Adjustment to determine the substantive merits of plaintiff's claims. Instead, going beyond the strict contours of the pleadings in the action in lieu of prerogative writs, the judge ultimately held that "the Zoning Officer's actions in this matter are found to be void ab initio and of no legal effect." While we disagree with the Law Division's determination concerning the timeliness of plaintiff's appeal to the Board of Adjustment, we nevertheless conclude that the judge's overall conclusion regarding the Zoning Officer's actions was substantially correct. Accordingly, we affirm.

I.

Defendants Abdel Amin and Badria Elatar (collectively, the owners), are the title-holders of property that includes a carriage house, located on Greene and Sussex Streets in Jersey City. The property is located within the Paulus Hook Historic District, a designated zoning district delineated in the Code of Jersey City, New Jersey 345-58 (the Code).

Starting in December 2005, the owners began discussions with Daniel Wrieden, Jersey City's Historic Preservation Officer (HPO), concerning their desire to rehabilitate the carriage house. After several revisions of the architectural plans, the owners applied for a permit to allow them to commence the contemplated renovations. Because of its location, any construction connected to the carriage house was subject to the oversight of Jersey City's Historic Preservation Commission (Commission) pursuant to Code 345-9 and -30. The Commission was created pursuant to N.J.S.A. 40:55D-107, and enjoys an expansive role in Jersey City's multi-layered system of land use controls, which includes the following:

1. To identify, record and maintain a system for survey an inventory of all buildings, sites, places, structures, objects or landscape features of significant historical or architectural value based standards of the United States Department of the Interior and to aid the public in understanding their worth, methods of preservation, techniques of documentation and related matters. The Commission shall be guided by the standards of the United States Department of the Interior.

2. To undertake to maximize the entire City's knowledge and enjoyment of these historic resources and, as appropriate, promote this asset beyond the boundaries of the City.

3. To advise the City Council and Planning Board of the relative merits of proposals involving public funds to restore, preserve and protect landmark buildings, places and structures, sites, objects and landscape features including the preparation of a long-range plan therefore, securing state, federal and other grants and aid to assist therein and monitoring such projects once underway.

4. To advise and assist City officers, employees, boards and other bodies, including those at County, regional, State and Federal levels, on all matters which have potential impact on the landmark buildings, sites, structures, object or landscape features in the City or on the ambience of a historic district.

5. To recommend to the Planning Board and the City Council the establishment and boundaries of additional historic districts where appropriate.

6. To recommend to the Zoning Board of Adjustment and the Planning Board the grant or denial of development applications where such are deemed to be within the intent and purposes of this Article.

7. To assemble and arrange for the proper care, cataloging and availability of materials relevant to the City's history.

8. To maintain a system for the survey and inventory of historic resources that is compatible and coordinated with the statewide Inventory of the Office of New Jersey Heritage.

9. To cooperate with local, County, State or national societies, governmental bodies and organizations to maximize their contributions to the intent and purposes of this Article.

10. To recommend to applicable County, State and Federal agencies, where appropriate, recognition of historic districts and Landmark buildings, places and structures.

11. To request the City Council to seek, on its own motion or otherwise, injunctive relief of violations of this Article or other actions contrary to the intent and purpose of this Article.

12. To make recommendations to the Planning Board on the Historic Preservation Land Use and Community Facilities Plan elements of the Master Plan and on the implications for preservation of landmark, historic districts or any other Master Plan elements.

13. To advise the Planning Board on the inclusion of historic districts or landmarks in the recommended capital improvement program.

14. To provide the Administrative Officer with written reports on the application of the Zoning Ordinance provisions concerning historic preservation.

15. To carry out such other advisory, educational and informational functions as will promote historic preservation in the municipality.

16. To review all proposed National Register nominations in accordance with New Jersey's Certified Local Government Guidelines.

17. To issue Certificates of Appropriateness or Certificates of No Effect in accordance with the rules and standards set forth herein.

[Code 345-9(B)(1) to -9(B)(17).]

Pursuant to the local legislation, notwithstanding the fact that most of its powers and duties are only advisory in nature, the Commission was required to review the owners' application for a permit and grant approval for the rehabilitation before any work would be permitted on the property:

No permit shall be issued or amended nor shall any construction, alteration, minor alteration, ordinary maintenance and repair or demolition be started on a landmark building nor on any sign, building, structure, object, site or landscape feature within a designed historic district, whether or not a construction permit is required, prior to a filing of an application for review by the Historic Preservation

Commission or the issuance of either a Certificate of Appropriateness or a Certificate of No Effect.

[Code 345-30(A).]

Certain approvals were left to the sound discretion of the HPO:

Applications for minor alterations and ordinary maintenance and repair may be reviewed by the Historic Preservation Officer who, at his or her discretion may issue a Certificate of No Effect, may require additional submittal information and/or refer the application to the Commission upon being deemed complete. A Certificate of No Effect shall require the signature of the Director of City Planning.

[Code 345-30(A)(2)(a).]

In this case, after the HPO had consulted with the owners and their architect for several months, Wrieden issued a Certificate of No Effect (CoNE) on August 10, 2006. The CoNE was signed by Wrieden and by Jersey City's Director of the Division of City Planning, Robert D. Catter. It contained the following explicit conditions:

This approval is issued only for work at the existing facades and exterior walls on the primary (East) and secondary facades and includes only cleaning, repointing [and] repair of exterior walls and removal of cornice line stucco upon submission of contract/proposal for masonry work; the installation of new doors [and] windows in existing openings which copy [and] match the historic fabric remaining. No other work other than that which is covered in this application is permitted, except interior cleanout [and] rehabilitation. No approval for use other than storage is recommended at present time except return to historic use, i.e., garage/carriage house.

[(Emphasis in the original.)]

After the rehabilitation plans were approved by the HPO, the Zoning Officer completed his own review, a permit was issued, and work began immediately thereafter by the owners' contractors.

Several months later, in March 2007, the HPO realized that the work being done on the property exceeded the scope permitted by the CoNE. Eventually, Wrieden explained the relevant circumstances to the Board of Adjustment:

The interior was gutted, which is not an ideal situation in Historic Preservation terms, but, having been in the building, there was considerable decay to joists and beams. So, that has to be rectified.

The joists were removed at the very top of the building. Again, something that you would expect with a roof leak. They were all removed. And as they were removed, the joists on the south side rent the wall asunder, causing it to tear into the east and to fall into a neighbor's yard.

I was alerted. I met with the architect, the owner, and the contractors. A plan was devised to fix the damage, which required getting those bricks from the person's yard from inside of the owner's property, or the applicant's property, rebuilding the wall.

The wall started to inch up in March. By the 15th, or so, of, I want to say March, the wall had grown about [two] feet. Now, I found this kind of odd, because the building, as a carriage house and it was a secondary structure. And it was just made, you know, for horses and buggies and such. You had two stalls on the bottom level with a staircase. And then, up above, in a loft, there was a storage area, if you would, with a roof that sloped for water drainage from north down to the south. Typical roof for a utilitarian building.

This roof started to rise. Not just on the south side where the dip was lowest, or even on the west side, where the dip was pronounced, but the whole wall, all four walls around the building, which clearly contradicted the terms and conditions of the Certificate of No Effect.

Wrieden went to the site, and after a conference with the architect, the owners' representative, and the contractor, the wall was to be lowered, "and pretty much things continued at pace."

Then things became murky. In June 2007, the HPO was again alerted that the carriage house's wall framing had exceeded the previous height of the bricks. There was a dispute about the eight-foot height elevation contemplated by the plans. The HPO explained to the Zoning Officer, "I cannot approve this. This exceeds your approvals. And we're going to have to figure something out." According to Wrieden, a letter was subsequently sent to the owner's representative "stating, again, [y]ou've exceeded your bounds. You must speak to the Zoning Officer." Following that advice, the owners did speak to the Zoning Officer, which produced the friction point in this litigation.

A revised set of plans allowing the roof to be raised were submitted to Wrieden, but he refused to issue another Certificate of No Effect for the updated renovations as the work would be too extensive for a mere CoNE. Despite the failure to gain the necessary approval from either the Commission or the HPO for the new plans, the Zoning Officer signed off on them, permits were issued around August 6, 2007, and construction resumed immediately thereafter. A Construction Permit Notice was also issued, which required posting conspicuously on the premises, but the owners and their contractor failed to comply. Thus, the HPO was unaware that updated permits had issued on the revised plans, allegedly believing instead that the on-going work at the property was merely an effort to undo the previously completed unauthorized construction. At least one resident in the neighborhood thought so too, at least until the first week in September 2007.

On September 5, 2007, the HPO emailed Steven V. Sanders, Vice President of plaintiff Historic Paulus Hook Association (the Association), and a near-by resident of the property, indicating that permits had been issued to the property, writing:

I did not approve the height. I can't approve the height and I won't approve the height. It is only with the HPC's [Historic Preservation Commission's] capacity to grant a Certificate of Appropriateness for the height.

The Zoning Officer signed off on the new, revised, corrected [] plans showing the increased height; I refused, and as far as I am concerned there is no legitimate CoNE [Certificate of No Effect] at this point but I can't give them a violation because the Zoning Officer has signed off on the plans and he's the one who issues them.

The Association describes itself as "a 501(c)(3) organization, to promote the common good of area residents and to improve the quality of life in the Paulus Hook neighborhood of downtown Jersey City." Allegedly in furtherance of that purpose and apparently as a result of the communication from the HPO, on September 13, 2007, some thirty-eight days after the Zoning Officer approved the second set of plans and issued permits, the Association filed an appeal of the Zoning Officer's actions with the Board of Adjustment pursuant to N.J.S.A. 40:55D-70(a). While the appeal should have automatically stayed all further construction pursuant to N.J.S.A. 40:55D-75, a stop work order was not issued until November 2007, and therefore the owners' contractors continued with the construction during the interim. We were advised at oral argument that the rehabilitation was ninety percent complete when the work did finally cease.

The initial hearing on the Association's appeal came before the Board of Adjustment on January 17, 2008. At this hearing, Sanders testified that the Association's members became concerned with the carriage house's renovations when "we saw additional brickwork going up and the height of the building being raised." He further stated, "[i]n September [2007] we asked for that appeal [from the decision of the Zoning Officer] to be made."

Wrieden testified that while he approved the first set of plans submitted by defendants, the second set had been signed by the Zoning Officer without the necessary HPO approval. The HPO also alleged that he spoke with the Zoning Officer, informing him that Wrieden was without authority to validate the revised plans and that the defendants would instead have to go to the Commission and, perhaps, to the Board of Adjustment for approval if they wanted to continue construction.

Claire Davis, Supervising Planner of Jersey City's Planning Division, made unsworn comments during this first hearing. She stated that the Association had been consistently checking with the HPO as to the status of the permit approvals on the defendant's property, asking if additional permits had been issued, but failed to receive an affirmative answer. Wrieden, who was sworn in, testified that he did not know permits had been issued based on the new plans until the beginning of September 2007. Wrieden also testified that he had known for some time that additional construction was taking place on the property, but "could not connect all the dots," or understand how defendants possibly obtained approval "without any sort of recommendation from the Commission."

The second portion of the hearing before the Board of Adjustment was held on February 28, 2008. Davis was sworn in at this hearing, and ultimately opined after eventually having located the Construction Official's file on this project that there was "no way" the Association or its members could have known about the updated permits being authorized prior to September 5, 2007.

Also testifying at the second hearing was Mac Charles, the President of the general contractor on the property, who testified that he was essentially doing continuous work on the site since August 2006. Charles operated under the assumption that he did not need HPO or Commission approval to make the construction changes, alleging that the HPO told him to "you know, let the building department deal with it." Wrieden denied this conversation.

At the end of the hearings, a motion was made to uphold the Zoning Officer's action because the Association's appeal was not timely made. The motion passed by a vote of three in favor, with one opposed, and with one abstention.

A written resolution memorialized the Board of Adjustment's decision, which was adopted on March 20, 2008. In it, the Board of Adjustment determined that the Zoning Officer issued the revised permits "on or about August 6, 2007," and that the contractor "commenced construction pursuant to the August 6, 2007 construction permit immediately thereafter." Furthermore, it determined that the Association's appeal of the Zoning Officer's decision to issue the August 6, 2007 permits was filed on September 13, 2007. Finally, in express recognition of the twenty-day limitation of N.J.S.A. 40:55D-72, the resolution stated:

8. The appellant should have known of the Zoning Officer's decision when work on the roof recommenced in early August 2007 and should have filed an appeal within 20 days thereof.

9. As to the [appeal pursuant to] N.J.S.A. 40:55D-70(a), the appeal regarding the property was not timely filed.

On May 2, 2008, the Association filed its complaint in lieu of prerogative writs, which focused upon the Board of Adjustment's rejection of the Association's appeal as untimely. We have been advised that the Association later commenced a separate declaratory judgment action that sought a judgment declaring that the Zoning Officer's actions were ultra vires.

The trial limited to the record of the proceedings of the Board of Adjustment was conducted on November 5, 2008. The plaintiff and defendants argued their views on the timeliness of the Association's appeal. However, the Association's trial brief went beyond the limitation of actions issue and additionally urged the court to reverse the Board of Adjustment and "proceed to decide the underlying appeal of the Zoning Officer's actions on the merits." Specifically, the Association urged the court to find that "the permit itself was void ab initio" as a matter of law.

At the conclusion of the argument, because neither of the defendants had briefed or argued the substantive issue regarding the bona fides of the permits issued by the Zoning Officer in the absence of either Commission or HPO approval, the trial judge requested supplemental briefs from both parties regarding whether the issuance of the permits by the Zoning Officer was ultra vires and therefore void ab initio. The defendants did not object to this procedure, which effectively added some of the issues from the declaratory judgment action into the action in lieu of prerogative writs.

After receiving the additional briefs from the parties' attorneys, the trial court orally stated its decision on the record on March 6, 2009. In making its decision, the trial court considered both the sworn and unsworn testimony of Davis, took into consideration the fact that the construction permit notice was not posted on the property, and also carefully reviewed the relevant sections of the Code.

Three days later, the trial judge entered a written order (1) reversing the decision of the Board of Adjustment on the limitation of actions issue; (2) finding that the Zoning Officer could not lawfully issue permits without the Commission's or the HPO's appropriate approval; and (3) determining that the Zoning Officer's actions were ultra vires and therefore void ab initio. The order further stated:

Defendants Abdel H. Amin and Badria M. Elatar must therefore obtain the appropriate approvals from the Historic Preservation Commission prior to resuming work at the property at issue in this matter.

In response to this order, the instant appeal was filed by the defendant owners, arguing again that the Association's appeal to the Board of Adjustment was untimely, and that the alleged de novo review by the trial court was erroneous and improper. The Board of Adjustment did not appeal and it has not participated in the present appellate proceedings.

II.

We start with the timeliness issue, which started out as the primary focus of the action in lieu of prerogative writs. In issuing her decision, the trial judge silently relied upon N.J.S.A. 40:55D-72(a), which provides:

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. The officer from whom the appeal is taken shall immediately transmit to the board all the papers constituting the record upon which the action appealed from was taken.

The twenty-day time limit on such appeals "runs from the date an interested party knows or should know of the action of an administrative officer." Sitkowski v. Zoning Bd. of Adjustment, 238 N.J. Super. 255, 260 (App. Div. 1990) (citing Trenkamp v. Twp. of Burlington, 170 N.J. Super. 251, 269 n.1 (Law Div. 1979)). The purpose of this short time limit is to "insulate the recipient of a building permit or other favorable disposition from the threat of unrestrained future challenge. It was intended to provide a degree of assurance that the recipient could rely on the decision of the administrative officer." Ibid.

The Board of Adjustment made several critical findings of fact that were not expressly addressed by the trial judge. Specifically, the Board of Adjustment, which considered the exact universe of evidence that was available to the trial judge, determined that "[t]he appellant should have known of the Zoning Officer's decision when work on the roof recommenced in early August 2007 and should have filed an appeal within 20 days thereof." The trial judge ignored this finding of fact and instead substituted her own view, concluding that because there was nothing in Jersey City's files that would have made possible the Association's awareness of the approvals given by the Zoning Officer, the September appeal was therefore timely. This conclusion, while arguably supportable from the available record, was no more preordained than the contrary conclusion reached by the Board of Adjustment. The crucial question that plagued this matter (a question that is peculiarly fact-sensitive) was what did the Association know and when did it know it? The Board of Adjustment found that the recommencement of roof work in early August 2007 put the Association on notice of the likelihood of the issuance of new or renewed permits. This finding was entitled to deference.

This brings into play the appropriate scope of judicial review in an action in lieu of prerogative writs. We recently noted the following as our touchstone for review:

At the outset, we reiterate well-settled general principles of appellate review that guide our consideration of the issues before us in this land use case. Our task is to review the record to determine whether the land use board's factual findings are based on "substantial evidence" and whether its discretionary decisions are "arbitrary, capricious and unreasonable." Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296-97 (1965); see also Ferraro v. Zoning Bd. of Keansburg, 321 N.J. Super. 288 (App. Div. 1999). A reviewing court generally should defer to the judgment of the local boards because the members of such bodies "are thoroughly familiar with their community's characteristics and are the proper representatives of its people [and] are undoubtedly best equipped to pass initially on such applications." Lang v. Zoning Bd. of Adj. of North Caldwell, 160 N.J. 41, 58 (1999) (quoting Kramer, supra, 45 N.J. at 296). Local zoning boards "must be allowed wide latitude in the exercise of delegated discretion." Ibid. (citing Kramer, supra, 45 N.J. at 296-97.) Thus, "there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the pubic agencies involved." Kramer, supra, 45 N.J. at 297 (citing Ward v. Scott, 11 N.J. 117 (1952)); see also Simeone v. Zoning Bd. of Adj. of East Hanover, 377 N.J. Super. 417, 426 (App. Div. 2005).

[Darst v. Blairstown Twp. Zoning Bd. of Adjustment, 410 N.J. Super. 314, 325 (App. Div. 2009).]

Courts must tread very carefully in the realm of fact-finding when engaged in the oversight of local administrative agencies such as a Board of Adjustment. We are under an obligation to "stop, look, and listen" at every stage of the proceedings to ensure that we do not substitute our version of the facts for those found by the local land use agency.

The trial judge essentially exchanged her view of the circumstances that existed in Jersey City in August and September 2007 for that of the Board of Adjustment. The judge did not conclude that the Board of Adjustment's decision was arbitrary, capricious, or unreasonable. She did not find that its determination was lacking substantial credible evidence in the record. However, the trial judge did engage in a weighing process of the evidence that our jurisprudence has commended to the principled discretion of local land use agents, not the judiciary.

Even if we were juristically inclined to make independent findings concerning what the Association knew or should have known within the twenty days following August 6, 2007, that avenue is foreclosed by our allegiance to the aforementioned principles of administrative deference. We initially presume that the local land use agency properly followed the law, investing its decision with an imprimatur of validity, Toll Bros., Inc. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 256 (2008), and will overturn its findings only in the clearest of cases. Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005). This case is not such a case. The Law Division erred when it concluded that the Board of Adjustment was mistaken and that the Association's appeal was timely. Rather, the decision of the Board of Adjustment on the issue was entirely sustainable and should have been affirmed.

If the timeliness issue were the only dispute in the case, our immediate finding would end the matter. However, the parties impliedly consented to allow the trial court to explore and then decide the underlying substantive question of whether the Zoning Officer had the legal right to issue permits in the absence of the Commission's or the HPO's authorization. A strict reading of the complaint submitted for the action in lieu of prerogative writs presumably would reveal that it did not seek such a broad declaration, because the Association filed a separate declaratory judgment action where that issue was poised for resolution. However, we find no fault in the trial court's expansion of the issues effectively amending the complaint pursuant to Rule 4:9-2 where the defendants did not object and where they had a full opportunity to address the legal issues presented.

The question of the Zoning Officer's authority to issue the permits without the prior authorization of the Commission or the HPO is a question of law, which was appropriately and correctly decided by the trial judge. Although the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, provides that disputes over the interpretation of zoning ordinances may be decided by a Board of Adjustment pursuant to N.J.S.A. 40:55D-70(b), these are purely legal determinations not entitled to a presumption of validity, and conclusions of law are subject to de novo review by this court. See Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993); Mt. Hill L.L.C. v. Zoning Bd. of Middletown, 403 N.J. Super. 210, 234-35 (App. Div. 2008).

While defendant is correct in noting that the Commission serves largely in an advisory role regarding historic preservation issues, the Code expressly requires Commission or HPO review before any work on a historic property is permitted:

No permit shall be issued or amended nor shall any construction, alteration, minor alteration, ordinary maintenance and repair or demolition be started on a landmark building nor on any sign, building, structure, object, site or landscape feature within a designed historic district, whether or not a construction permit is required, prior to a filing of an application for review by the Historic Preservation Commission or the issuance of either a Certificate of Appropriateness or a Certificate of No Effect.

[Code 345-30(A).]

In this case, when the HPO refused to authorize the plans submitted to him in July 2007, the property owners' next step should not have been to extract permits from the Zoning Officer, even though the HPO suggested a discussion with that official prior to further construction. Rather, the owners could have proceeded before the Commission pursuant to Code 345-30(A)(2)(a) ("Applications for minor alterations and ordinary maintenance and repair may be reviewed by the Historic Preservation Officer who, at his or her discretion may issue a Certificate of No Effect, may require additional submittal information and/or refer the application to the Commission upon being deemed complete). In any event, it was the Zoning Officer who should have applied the brakes to the process in the obvious absence of either the Commission's or the HPO's approval.

The very reason a Historic Preservation Commission was first established was to assist various other City agencies in specific areas of which the Commission has expertise. Part of the Commission's purpose is to "aid the public in understanding [the historical sites'] worth, methods of preservation, [and] techniques of documentation and related matters." Code 345-9(B)(1). While the Code indicates that Jersey City's Zoning Officer "shall act as the Administrative Officer with respect to administering the historic preservation provisions" of the Code, it is clear that the Zoning Officer cannot act without the Commission's or its staff's input in matters relating to such historical sites. Code 345-9(C).

Moreover, there is an appeals process in place if an applicant is not satisfied with the Commission's decision regarding an application. The Code provides:

An applicant dissatisfied with the action of the Commission resulting in the denial of a Certificate of Appropriateness shall have the right to appeal to the Board of Adjustment within twenty (20) days after receipt of notification of such action. The applicant shall be advised by the Secretary to the Board of Adjustment of the time and place of the hearing at which the appeal will be considered and shall have all rights defined under N.J.S.A 40:55D-70, Subsection a. If the Board of Adjustment affirms the Commission's denial, the applicant may seek legal remedies as cited in N.J.S.A 40:55D-17.

[Code 345-30(B)(1).]

We find that there is clearly no indication that a dissatisfied applicant can simply go to the Zoning Officer for approval, skirting the appeals process entirely. The Zoning Officer cannot act without the owners following proper channels and process required by the Code, that is, a review of the HPO's decision by the Commission, and then if still aggrieved, the Commission's decision by the Board of Adjustment, and thereafter by the courts, if necessary. If the Zoning Officer had the power to overrule any permit determination by the Commission, there would be no need for an appeals process, or for the expert advisory role of the Commission in general. By approving the August 2007 permits, the Zoning Officer effectively usurped the authority of the HPO, the Commission, and potentially the Board of Adjustment; those permits were appropriately determined by the trial judge to be ineffective. The direction to seek "the appropriate approvals from the Historic Preservation Commission prior to resuming work at the property at issue in this matter" was entirely proper.

Affirmed.

 

Although the Board of Adjustment was a party to the underlying action in lieu of prerogative writs, it did not participate in this appeal, leaving the locals to do battle between themselves.

See http://library.municode.com/index.aspx?clientId=16093&

stateId=30&stateName=New%20Jersey (last accessed on Jan. 26, 2010).

The Commission is a party neither in the underlying litigation nor in this present appeal, yet still plays a large role in the context of this case.

Although the CoNE makes no mention of repairs to the roof, the HPO testified at the Board of Adjustment that the "[r]oof had to be repaired, pointing had to be repaired, doors had to be replaced, windows had to be replaced. And there was work that had to be done inside, as well."

Sanders testified that he resided "three doors west" of the carriage house.

See http://www.paulushook.net/about (last accessed on Jan. 26, 2010).

Davis posed the question and the answer this way, "The question is: Whether the people who are appealing this, the neighbors who were watching the construction, knew that this signature had taken place? And they did not."

Inexplicably, neither the appellant nor the respondent included this complaint in their appendices, contrary to Rule 2:6-1, which requires the inclusion of "the pleadings" in civil actions.

We have likewise not been provided with a copy of the pleadings in the separate declaratory judgment action. However, in a case management order entered in the action in lieu of prerogative writs, the trial court mentioned plaintiff's "intent to file a declaratory relief action as to the substantive aspect of this matter." We do not know, for example, whether plaintiff sought injunctive relief of the sort exemplified in Garrou v. Teaneck Tryon Co., 11 N.J. 294 (1953)(discussing the right of an interested party to compel enforcement of an ordinance).

We acknowledge that the defendant owners' ability to raise the issue of equitable estoppel against the City, a non-party (and the Zoning Officer's employer), was thwarted by this process. Nevertheless, even after our determination on this appeal, we preserve the owners' right to sue the City for such relief, recognizing that in order for equitable estoppel to be applied against the City, its administrative officials must have made an "erroneous and debatable interpretation of the ordinance" in "good faith and within the ambit of [their] duty" upon which the owner of the property relies in good faith. Jantausch v. Borough of Verona, 41 N.J. Super. 89, 94 (Law Div. 1956), aff'd, 24 N.J. 326 (1957). However, "good faith" on the part of a governmental actor is satisfied only by demonstrating the existence of "an issue of construction of the zoning ordinance, which, although ultimately not too debatable, yet was, when the permit was issued, sufficiently substantial to render doubtful a charge that the administrative official acted without any reasonable basis or that the owner proceeded without good faith. Jesse A. Howland & Sons, Inc. v. Borough of Freehold, 143 N.J. Super. 484, 489 (App. Div.), certif. denied, 72 N.J. 466 (1976).

It is for this reason we address the issues beyond timeliness of the appeal to the Board of Adjustment. Stated differently, if the matter were remanded to the Board of Adjustment because the appeal to it was timely, the Board of Adjustment would have to await consideration of the HPO or Commission.

(continued)

(continued)

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A-4001-08T2

February 16, 2010