CHERYL D. MCGINLEY v. THE ZONING BOARD OF ADJUSTMENT OF THE CITY OF SEA ISLE CITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3532-09T4

CHERYL D. MCGINLEY,

Plaintiff-Appellant,

v.

THE ZONING BOARD OF ADJUSTMENT

OF THE CITY OF SEA ISLE CITY, THE

CITY OF SEA ISLE CITY, A Municipal

Corporation, CORNELIUS R. BYRNE,

Construction Official/Zoning Officer

of the City of Sea Isle City,

KENNETH MARTABANO and KAREN MARTABANO,

husband and wife, and VINCENT P.

DONAHUE, JR. and THERESE M. DONAHUE,

husband and wife,

Defendants-Respondents.

_________________________________________

April 26, 2011

Submitted December 6, 2010 - Decided

Before Judges Rodr guez, Grall and C.L. Miniman.

On appeal from Superior Court of New

Jersey, Law Division, Cape May County,

Docket No. L-133-09.

Ford, Flower & Hasbrouck, attorneys for

appellant (Willis F. Flower and David C.

Hasbrouck, on the brief).

James H. Pickering, Jr., attorney for

respondent Zoning Board of Adjustment of

the City of Sea Isle City.

Law Offices of Paul J. Baldini, P.A.,

attorneys for respondents City of Sea Isle City and Cornelius R. Byrne (Paul J. Baldini, on the brief).

Perskie Mairone Brog & Baylinson, P.C.,

attorneys for respondents Kenneth and

Karen Martabano and Vincent P. and Therese

M. Donahue (Christopher M. Baylinson,

on the brief).

PER CURIAM

Plaintiff Cheryl D. McGinley appeals from an order of the Law Division affirming resolutions of the Zoning Board of Adjustment of the City of Sea Isle City (Board) that granted variances to defendants Kenneth and Karen Martabano and Vincent P. and Therese M. Donahue (collectively owners). The variances we consider approve deviations from the front-yard, side-yard and sand-dune line setbacks. We reverse and remand to permit the Board to reconsider. On remand, the Board must make appropriate findings of fact as to the positive and negative criteria upon which it relied to grant these variances pursuant to subsections c(1)(c) and c(2) of N.J.S.A. 40:55D-70, a provision of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -136.

The Board granted the setback variances primarily on the ground that "the construction of th[is] building with permits, and with full knowledge of the construction official, [was] an extraordinary circumstance on the property." See N.J.S.A. 40:55D-70c(1)(c). But the Board failed to make findings relevant to the resulting "exceptional practical difficulties" or "undue hardship" that warrants relief under subsection c(1)(c) from strict application of the City's zoning law.

The Board also relied on subsection c(2) of N.J.S.A. 40:55D-70, which applies when a variance will provide a benefit that furthers the purposes of the MLUL and "substantially outweigh[s] any detriment." In that regard, the Board found two benefits one that is and one that is not supported by the record.

In addition to the setback variances, the Board granted a variance permitting a building thirty-two feet in height where thirty-one feet was the maximum permitted, and the Board granted a variance allowing the owners to exceed the maximum floor area ratio (FAR). These variances are moot, and for that reason we dismiss the appeal as to them. On October 26, 2010, the City Council of Sea Isle City increased the maximum permissible building height from thirty-one to thirty-three feet. Sea Isle Rev. Gen. Ordinances (hereinafter S.I.O.) 26-46.8 (as amended by Ordinance No. 1489 IX (2010)). By the same ordinance, the City Council also eliminated FAR restrictions. Id. at 26-54.11 and 26-55.10 (as amended by Ordinance No. 1489 XX and XXII (2010)). Because courts reviewing the actions of a zoning board apply the statute in effect at the time of the court's decision to effectuate the legislative body's current policy, the height and FAR variances are no longer necessary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 386 (1995); Kruvant v. Mayor and Council of the Twp. of Cedar Grove, 82 N.J. 435, 440 (1980); Lake Shore Estates, Inc. v. Denville Twp. Planning Bd., 255 N.J. Super. 580, 589 (App. Div. 1991), aff'd o.b., 127 N.J. 394 (1992); Crecca v. Nucera, 52 N.J. Super. 279, 284 (App. Div. 1958).

I

These facts are pertinent to the setback variances that we must address. The owners have a beachfront lot in Sea Isle City (Sea Isle) that is located in a R-2 "V" zone, which is a two-family residential in a flood area zone. Plaintiff owns the lot adjacent to and south of this lot.

The Martabano/Donohue lot was established by a subdivision in 1981. It is a 5158.17 square-foot, irregular, flag-shaped lot. The irregularity is due to a boundary line on the beachfront, or east side, of the property that angles toward the west from south to north; that east-side property line follows the "paper street" it abuts, Marine Place. Entrance to the property is from Pleasure Avenue through the staff portion of the flag-shaped lot.

Because the property extends through from Pleasure Avenue to Marine Place, a fifteen-foot minimum front-yard setback must be observed on both sides. S.I.O. 26-27.3, 26-46.4. In the east front yard, the property is also subject to a ten-foot setback from the dune line. S.I.O. 26-35.1. The required side-yard setback is a minimum of five feet on each side with an aggregate of fifteen feet of side-yard setback required. S.I.O. 26-46.5. "[O]rnamental or canopy overhangs" extending two feet into a side-yard setback that is seven feet or greater are excluded when calculating setbacks. S.I.O. 26-27.6, 26-28.

In fall 2007, the owners hired a builder, Joseph Freda, to upgrade the duplex erected at the time of the subdivision. Freda, who had done about 2000 projects in Sea Isle, consulted with Robert A. Bowman, a Sea Isle employee for more than eighteen years and serves as Sea Isle's construction official, zoning inspector and officer and code enforcement officer.

Bowman advised Freda that he could not build a new duplex in the same location as the existing structure because the decks fronting on the paper street were only 13.4 feet from the property line and because the property had a non-conforming setback on the south side yard, 2.5 feet rather than five. Bowman, however, told Freda that he could renovate the duplex in the same footprint if he kept "three walls remaining." Based on past practices approved in Sea Isle, Bowman and Freda both believed three walls could be removed, stored on or off the premises and reused without converting the project from a renovation into a reconstruction of the duplex.

Freda had Carmen LaRosa prepare plans and Clarence DeVaul, now deceased, prepare a survey. DeVaul's survey included a note indicating that three of the existing walls the north, south and west would be incorporated in the construction work. LaRosa did plans for a reconstruction. They did not address removal and restoration of the walls but include a note, standard in "rehabilitation" projects, calling for exposure and inspection of existing systems that will be reused.1 The plan called for an extension of the side walls towards the east into an area that had been the first-floor deck, with a compensating reduction in the depth of the deck. DeVaul's survey showing the proposed building does not reflect that change.

LaRosa had done plans for projects in Sea Isle at a rate of fifty to sixty projects per year for about thirty years. His past plans included multiple two-foot bump outs. According to Bowman, Freda and La Rosa, Bowman had interpreted the ordinance to exclude such "ornamental" protrusions into a side yard when calculating setbacks so long as they were at least five feet from the property line. According to Freda, these bump outs for window seats add architectural detail that gives aesthetic "curb appeal" to the building.

After Bowman issued the permit, Freda questioned the adequacy of the existing pilings. He contacted Bowman, who inspected and agreed that they should be replaced. Because of the need to replace the pilings, Bowman took it upon himself to direct Freda to reset the structure 2.5 feet to the north and thereby reduce a non-conforming side-yard setback on the south. Consequently, the structure was taken down; three of the walls were dismantled and the wood was placed in storage. Later the wood was used to build three new walls. According to Freda, the studs from the old walls were used in the new walls. The shift of the property to the north, where the distance from east to west was shorter due to the angle of the east boundary line, had the effect of decreasing the setback between the deck and the property boundary and dune lines to the east. After construction commenced, plaintiff's husband told Mr. Martabano he opposed the project.

In January 2008, the McGinleys commenced an action in the Chancery Division to restrain further construction. The court denied the restraints but advised the owners that they proceeded at their own risk.

In February 2008, the owners applied for variances. Five hearings on the application were conducted between May 20 and September 8, 2008. The McGinleys and another neighbor participated as objectors and were represented by an attorney.

By the time the hearings commenced, the duplex was built. The Board, implicitly rejecting Bowman's three-wall theory, evaluated the variances as if the structure were newly built on a vacant lot but took prior conditions on the lot into consideration.

The owners and the objectors both presented surveys of the structure as built by Freda. The parties' surveys varied, but the Board determined that the inconsistencies, with the exception of two-foot bump outs in the exterior wall that the owners' survey did not count when measuring setbacks or lot coverage, were "a matter of inches." Joseph M. Dolan prepared the objectors' survey. According to Dolan, inconsistencies in surveys are not uncommon, and he had no reason to believe any inconsistency between them was intentional.

Exclusive of the two-foot bump outs on the western wall and including the deck, the variations relevant to lot coverage, stated as a percentage of a foot, were .31 along the north side, .61 along the south side and .26 along the length of the first-floor deck fronting on Marine Place and the wall fronting on Pleasure Avenue. With respect to any deviation from plans submitted prior to construction, DeVaul's pre-construction proposal and the post-construction surveys showed the same lot coverage 1794 feet, forty-six feet by thirty-nine feet including the first-floor deck but excluding the bump outs. Unlike the survey showing the proposed structure, DeVaul's as-built survey showed the bump outs and the six-foot extension of the structure to the east that occupies six of the ten feet that was the first-floor deck of the prior structure.

Although the Board assessed the application using DeVaul's as-built survey, the members included the bump outs when addressing the setback variances. In so doing, the Board rejected Bowman's characterization of those structural features as "ornamental."

Despite its rejection of Bowman's three-wall renovation rule and bump out interpretation, the Board found that the building was constructed with Bowman's knowledge and approval in accordance with LaRosa's plans and Bowman's subsequent direction to move the structure to the north. In addition, the Board found that it was built with permits and "with the good faith of" Freda, LaRosa, DeVaul and the owners. For those reasons, the Board concluded that "the construction of the building with permits, and with full knowledge of the construction official, [was] an extraordinary and exceptional circumstance on the property, which justifie[d] the C-type variances" it was granting to permit the building to remain as built.

The Board approved these bulk variances pursuant to subsection c of N.J.S.A. 40:55D-70. Relying on subsections c(1)(c) and c(2), the Board approved a 1.65-foot deviation variance from the fifteen-foot front-yard setback requirement on the eastern side and a .65 foot-variance from the dune-line requirement. The Board found the variances minimal, needed only for the northern corner of the ocean-front deck and largely necessary only because of Bowman's decision to move the structure to the north and into the narrower area of this front yard.

The Board also granted, pursuant to subsection c(2), a two-foot variance from the aggregate fifteen-foot side-yard setback and a two-foot variance from the fifteen-foot front-yard setback on the western side of the property was granted pursuant to subsection c(1). With respect to those variances, the Board noted that they were required because of the bump outs that Bowman approved and that those bump outs had arguable aesthetic value when compared with a "flat" exterior wall. The Board also referred to hardship attributable to the flag portion of the lot.

In each instance, the Board found that the reasons for granting the variance outweighed any detriment to neighbors and did not result in a substantial impairment of the zoning plan or ordinance.

The Board also denied two variances. They were a variance from the restriction on a total impervious surface and a variance for parking.

II

Like the trial court, we must review a municipal board's action by giving deference to its decision and affirming it unless it is arbitrary, capricious or unreasonable. Cohen v. Bd. of Adj., Borough of Rumson, 396 N.J. Super. 608, 614-15 (App. Div. 2007). The question is whether "'the board could reasonably have reached its decision on the record.'" Id. at 615 (quoting Jock v. Zoning Bd. of Adj., Twp. of Wall, 184 N.J. 562, 597 (2005)). "We do not substitute our judgment for that of the municipal board." Ibid.

The statute that controls these setback variances is N.J.S.A. 40:55D-70c(1). In pertinent part it provides:

c. (1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to [N.J.S.A. 40:55D-62 to -68.6] would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, [the board of adjustment shall have the power to] grant, upon an application or an appeal relating

to such property, a variance from such strict application of such regulation so

as to relieve such difficulties or

hardship . . . .

[Ibid. (emphasis added).]

To receive these variances, then, the owners had to "demonstrate (1) that [they] 'will suffer exceptional or undue hardship if the variance is not granted the so-called positive criteria; and (2) that the variance will not result in a substantial detriment to the public good or the zoning plan the so-called negative criteria.'" Cohen, supra, 396 N.J. Super. at 615 (quoting Nash v. Bd. of Adj., Twp. of Morris, 96 N.J. 97, 102 (1984)).

The Board's decision that Bowman's involvement in this project qualified as an "exceptional" situation "affecting . . . specific . . . structures" on this property is well-supported by the evidence upon which the Board relied. Bowman's three-wall rule, his interpretation of the significance of the proposed bump outs, and his unilateral and unauthorized decision to have the owners reposition the structure played a significant role in the owners' and their professionals' conclusion that the setback variances were not required before construction began.

The Board's conclusion that the shared mistakes are relevant to subsection c(1)(c) is supported by the decisions of this court cited in the Board's resolution. This court has recognized that permits issued due to mistakes in a permit application submitted by owners and mistakes made by officials issuing permits despite apparent violations of the zoning ordinance are relevant to hardship and provide an appropriate ground for considering the hardship of removing the non-conformity. Cohen, supra, 396 N.J. Super. at 617-21; Hill v. Bd. of Adj., Borough of Eatontown, 122 N.J. Super. 156, 160-65 (App. Div. 1972) (applying estoppel and the equitable doctrine of relative hardship prior to the adoption of subsection c(1)(c)). In this context, we have determined that the fact that the structure requires a variance does not mean the structure is not "lawfully" on the property within the meaning of N.J.S.A. 40:55D-70c(1)(c), and we have held that a Board may consider the financial hardship involved in remedying the condition that requires the variance. Cohen, supra, 396 N.J. Super. at 619-20; Hawrylo v. Bd. of Adj., Harding Twp., 249 N.J. Super. 568, 579-85 (App. Div. 1991) (discussing subsection c(1)(c), which was added to N.J.S.A. 40:55D-70 by L. 1984, c. 20, 12).

An owner's role in creating a hardship of this sort is pertinent, and the Board's resolution also addresses that point. The Board found that the owners and their professionals acted in good faith and in reliance on the approval and direction given by Bowman. That finding distinguishes this case from others involving owners who create their own hardship by changing plans after obtaining a permit or proceeding without one. Place v. Bd. of Adj., Borough of Saddle River, 42 N.J. 324, 331-32 (1964); Deer-Glen Estates v. Bd. of Adj. & Appeal, Borough of Fort Lee, 39 N.J. Super. 380, 385 (App. Div. 1956).

The difficulty in this case is the Board's failure to find facts and explain why, in the face of the "exceptional" circumstances related to Bowman's role in the project, "strict application" of the setback requirements "would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon" the owners. Such difficulty or hardship provides the special reason, or positive criteria, that would warrant a grant of a variance pursuant to subsection c(1). Assuming that our decision in Hill has continuing relevance beyond subsection c(1)(c), principles of estoppel and relative hardship, like subsection c(1)(c), require an analysis of the burden the property would have to shoulder to correct the official's mistake. Hill, supra, 122 N.J. Super. at 164. Because the Board's resolution is silent on these critical questions, we must remand to permit the Board to reconsider and make all findings required by subsection c(1)(c).2

We recognize that the Board has made findings and offered reasons relevant to the grant of a variance pursuant to c(2). Bowman's role is irrelevant here because c(2) variances are not granted based on hardship to the property owner. In fact, "no c(2) variance should be granted when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property." Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 563 (1988). The question as to whether a structure at issue presents a better zoning alternative is informed by the "specific purposes of zoning set forth in the MLUL." Ibid. Moreover, even when the purposes of the zoning law are advanced, a c(2) variance cannot be granted unless "the benefits of the deviation . . . would substantially outweigh any detriment." N.J.S.A. 40:55D-70c(2).

The Board relied on two of the MLUL's purposes to establish a special reason provision of "adequate light, air and open space" and promotion of "a desirable visual environment." N.J.S.A. 40:55D-2c, i. The Board found a benefit to light and air related to the deck, but that finding has no support in the record because the non-conforming deck is not replacing a non-conforming closed structure. In this respect, the most that can be said about the deck is that it does not have a negative impact on light and air. The Board's finding that the bump outs and deck as built promote a desirable visual environment are supported by the record, but it is not clear to us that the Board did or would conclude that the visual benefit alone substantially outweighs the detriments of the bump outs and deck. Accordingly, if the Board relies on c(2) on remand, it should reassess the balance of benefit and detriments.

The decision of the Law Division affirming the Board's approvals of the setback variances is reversed and the matter is remanded so the Board may reconsider and provide additional findings and conclusions relevant to N.J.S.A. 40:55D-70c(1)(c) and c(2).

Dismissed in part; reversed in part; and remanded. We do not retain jurisdiction.

1 The appendix includes only the cover sheet to LaRosa's plans, but LaRosa testified about the full plans before the Board.

2 To the extent that the Board relied on hardship created by the shape of this flag lot, it erred. That hardship was created by the owner's predecessor and the size of the structure; as such, it is deemed self-created. See Egeland v. Zoning Bd. of Adj., Twp. of Colts Neck, 405 N.J. Super. 329, 333 (App. Div.), certif. denied, 199 N.J. 134 (2009).