T.K. ASSOCIATES v. TOWNSHIP OF FRANKLIN, et al.

 

FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3534-05T53534-05T5

T.K. ASSOCIATES,

Plaintiff-Appellant,

v.

TOWNSHIP OF FRANKLIN and SOMERSET

COUNTY CONSTRUCTION BOARD OF APPEALS,

Defendants-Respondents.

______________________________________

 

Submitted December 4, 2006 - Decided December 29, 2006

Before Judges Lintner and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Somerset County, L-1433-04.

Sam Khoudary, appellant pro se.

DeCotiis, Fitzpatrick, Cole & Wisler, attorneys for respondent Township of Franklin (Daniel J. Fitzpatrick, of counsel; Jason D. Attwood, on the brief).

No brief was filed on behalf of respondent Somerset County Construction Board of Appeals.

PER CURIAM

Plaintiff, T.K. Associates, appeals from a judgment dismissing its complaint in lieu of prerogative writs against defendants, Township of Franklin (the Township) and the Somerset County Construction Board of Appeals (the Board). Plaintiff's complaint sought a determination that the Township's refusal to issue plaintiff a building permit to renovate a garage to include a residence on the second floor was improper. It also sought to reverse the decision by the Board upholding a Stop Construction Order finding that plaintiff never obtained building permits for the structure it was actually building. We now affirm the judgment dismissing plaintiff's complaint.

In August 2002, plaintiff submitted a set of plans to the Township Zoning and Building Department calling for a new roof and alterations for a one-car garage located on its premises at 473 Lewis Street, Franklin Township. The plans depicted a single-story garage structure, twenty feet long by fourteen feet four inches wide with a new roof and modest alterations. On September 9, 2002, Construction Permit No. 01-01194 was issued for "2nd FLOOR RECONSTRUCTION REVISED ROOF CONSTRUCTION." Plaintiff commenced construction.

Substantially different plans dated June 25, 2002, were prepared for plaintiff, showing a two-story garage structure, twenty-eight feet eight inches long by twenty-six feet wide with steps leading to the second floor which was designated as a "STORAGE" area. On March 17, 2003, a zoning permit application was submitted by plaintiff describing the structure as a garage and seeking a permit to be updated to include drawings submitted as revised on March 17, 2003, for "Garage Only." The second set of plans was stamped for approval for release by the Zoning Officer on September 11, 2003. The plans, however, were not approved by the Construction Official and a construction permit was never issued as required by N.J.A.C. 5:23-2.14.

A third set of plans, also dated June 25, 2002, were prepared for plaintiff, depicting a significantly taller structure occupying the same footprint as the structure depicted in the second set of plans. The third set of plans showed a two-bedroom residence with the kitchen and living room on the first floor, along with the one-car garage, and three bedrooms and a bathroom on the second floor. The third set of plans were neither approved by the Construction Official nor stamped approved for release by the Zoning Officer.

On October 22, 2003, the Township Construction Official visited the site after receiving a complaint from plaintiff's neighbor regarding the construction activity on plaintiff's property. On the same day, a Notice and Order of Penalty, also described as a Construction Stop Order, was issued, finding that plaintiff had not obtained a permit and ordering it to pay $400 plus $200 each week the violation remained outstanding. The stop order advised that plaintiff could seek a hearing before the County Construction Board of Appeals pursuant to N.J.A.C. 5:23A-2.1. At the hearing, plaintiff's architect testified that the plans showing what was described as a carriage house were not approved by the building department. He conceded that separate sets of plans must be submitted and approved by the building department as well as the zoning department. On August 24, 2004, the Board determined that the stop order was properly issued because the plans had not been approved by the Construction Official.

Dismissing plaintiff's complaint, the judge found, in part, that no permission was issued to build the residential structure that plaintiff had under construction. The judge also found that plaintiff could not rely on the zoning permit for the second plans because the zoning ordinance did not permit a second residential structure.

On appeal, plaintiff asserts that defendants are estopped from issuing the stop order on the residential structure because the Zoning Officer approved the second set of plans. Plaintiff's arguments are legally and factually unsupported and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). Plaintiff failed to obtain a construction permit as required by N.J.A.C. 5:23-2.14. Contrary to plaintiff's contention, the circumstances here are devoid of any evidence establishing conduct on the part of the Township Zoning Officer that could have reasonably misled plaintiff and caused plaintiff to construct, to his detriment, the building in question. See Dambro v. Union County Park Comm'n, 130 N.J. Super. 450, 457 (Law Div. 1974). The decision of the Board was not arbitrary, unreasonable, or capricious.

 
Affirmed.

The terms "building department" and "official" and the terms "construction department" and "officer" were interchanged and have the same meaning.

(continued)

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A-3534-05T5

December 29, 2006