GUISEPPE MORDINI v. HAWORTH ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2321-17T4

GUISEPPE MORDINI,

          Plaintiff-Appellant,

v.

HAWORTH ZONING BOARD
OF ADJUSTMENT,

     Defendant-Respondent.
_____________________________

                    Argued January 7, 2019 – Decided January 28, 2019

                    Before Judges Messano and Fasciale.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Docket No. L-8748-15.

                    Justin D. Santagata argued the cause for appellant
                    (Kaufman Semeraro & Leibman, LLP, attorneys; Justin
                    D. Santagata, on the briefs).

                    Alexander T. West, Jr. argued the cause for respondent.

PER CURIAM
      Plaintiff Guiseppe Mordini owns a single-family home in the Borough of

Haworth. The house sits on a "through lot," defined by Haworth's zoning

regulations as "a lot fronting on two (2) streets that do not intersect each other

at the boundaries of the lot." Borough of Haworth, N.J. Ordinance § 26-301.

The regulations further provide that "[a] through lot shall have two (2) side yards

and two (2) front yards[,] but shall have no rear yard." Id. at § 26-502.8(g)(3).

      Plaintiff's home faces Pine Street; the rear of the house faces

Schraalenburgh Road. At the time plaintiff purchased the property, there was a

four-foot high split rail fence along Schraalenburgh Road, which had been on

the property since at least 1977. Plaintiff applied to the Building Department

for a permit to construct a new six-foot high fence.

      The construction official denied the permit, citing § 26-902.1(c)(1) of the

zoning regulations, which provides: "No fence serving a residential use shall be

permitted in front of any residence . . . ." Plaintiff filed an application with the

Haworth Zoning Board of Adjustment (the Board) seeking an interpretation of

the ordinance. See  N.J.S.A. 40:55D-70(b). Alternatively, plaintiff sought a

variance pursuant to  N.J.S.A. 40:55D-70(c)(1) (permitting variance relief under

some circumstances when strict application of the regulations "would result in




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peculiar and exceptional practical difficulties to, or exceptional and undue

hardship upon" the developer of the property).

      The Board conducted two hearings, at which plaintiff and his wife

testified. During the hearings, plaintiff amended his application, proposing to

construct instead a four-foot high split rail fence atop a two-foot landscaped

berm along Schraalenburgh Road. By a vote of four to three, the Board denied

plaintiff's application. The Board's memorializing resolution reflects its finding

that the fence "would be in the property's front yard, that being the portion of

the property that faces Schraalenburgh Road."          The Board construed the

ordinance to "prohibit[] a fence in the front of any residence[,]" and the "fence[]

would be located in a front yard of the premises, as defined by the . . .

[o]rdinance." 1

      Plaintiff filed a complaint in lieu of prerogative writs seeking reversal of

the Board's interpretation of the ordinance. The Law Division judge reasoned

"the Board's interpretation that the subject [p]roperty maintains two front yards

. . . was appropriate and reasonable based upon the clear language of the [z]oning



1
  The Board also denied the variance. In a comprehensive written decision, the
Law Division judge determined the denial was not arbitrary, capricious or
unreasonable, since plaintiff failed to carry his burden of proof. Plaintiff does
not appeal the denial of the variance.
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[o]rdinance." He entered an order dismissing plaintiff's complaint, and this

appeal followed.

      Before us, plaintiff contends the Board's interpretation of the ordinance is

"clearly wrong" and requires reversal. We agree and reverse.

      "[Z]oning boards, 'because of their peculiar knowledge of local

conditions[,] must be allowed wide latitude in the exercise of delegated

discretion.'" Price v. Himeji, LLC,  214 N.J. 263, 284 (2013) (second alteration

in original) (quoting Kramer v. Bd. of Adjustment,  45 N.J. 268, 296 (1965)).

"Although a municipality's informal interpretation of an ordinance is entitled to

deference, that deference is not limitless." Bubis v. Kassin,  184 N.J. 612, 627

(2005) (citing Fallone Props., LLC v. Bethlehem Twp. Planning Bd.,  369 N.J.

Super. 552, 561 (App. Div. 2004)). "[T]he meaning of an ordinance's language

is a question of law that we review de novo." Ibid.; see also Wyzykowski v.

Rizas,  132 N.J. 509, 518 (1993).

      "The established rules of statutory construction govern the interpretation

of a municipal ordinance." Twp. of Pennsauken v. Schad,  160 N.J. 156, 170

(1999) (citing AMN, Inc. of N.J. v. Twp. of S. Brunswick Rent Leveling Bd.,

 93 N.J. 518, 524-25 (1983)). "[W]e focus on the plain language of the statute

and use common sense 'to effectuate the legislative purpose[.]'" Dunbar Homes,


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Inc. v. Zoning Bd. of Adjustment of Twp. of Franklin,  448 N.J. Super. 583, 598

(App. Div. 2017) (quoting Morristown Assocs. v. Grant Oil Co.,  220 N.J. 360,

380 (2015)).

      "Zoning ordinances generally are 'liberally construed in favor of the

municipality.'" Schad,  160 N.J. at 171 (quoting Place v. Bd. of Adjustment of

Borough of Saddle River,  42 N.J. 324, 328 (1964)).            "However, '[z]oning

regulations are restrictive of property rights and ought not to be too broadly

interpreted against the possessor thereof.'" Mountain Hill, LLC v. Zoning Bd.

of Adjustment of Twp. of Middletown,  403 N.J. Super. 210, 236 (App. Div.

2008) (alteration in original) (quoting Skinner v. Zoning Bd. of Adjustment of

Twp. of Cherry Hill,  80 N.J. Super. 380, 388 (App. Div. 1963)).              "Thus,

'[r]estrictions in zoning ordinances must be clearly expressed and doubts are

resolved in favor of the property owner.'" Ibid. (alteration in original) (quoting

Graves v. Bloomfield Planning Bd.,  97 N.J. Super. 306, 312 (Law Div. 1967)).

      Here, the Board applied the definition of a "through lot," as having two

"front yards," Ordinance § 26-502.8(g)(3), to that section of the regulations that

prohibited all fences "in front of any residence." Id. at § 26-902.1(c)(1).

However, the regulations define a front yard as "the area lying between the front

lot line and the setback line and extending from the side lot line to side lot line."


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Id. at § 26-301. In other words, a front yard was defined by lot lines, without

reference to whether it was "in front" of the residence.

      In addition, in the same comprehensive scheme of regulations that

addressed fencing in the municipality, Haworth adopted a differently worded

restriction in nonresidential districts. Unlike § 26-902.1(c)(1), which prohibits

any fences "in front of any residence," subsection (c)(3) provides: "Fences in

any nonresidential district shall not exceed six (6) feet in height and shall not be

located in a front yard." (Emphasis added). A tenet of statutory construction is

that "[d]ifferent words used in the same . . . statute are assigned different

meanings whenever possible." In re Expungement Petition of J.S.,  223 N.J. 54,

74 n.5 (2015) (quoting Norman J. Singer & J.D. Shambie Singer, 2A Sutherland

on Statutory Construction, § 46:6 at 261-63 (7th ed. 2007)).

      The regulations do not define the "front" of a residence, or the meaning of

"in front" of a residence. Ordinance § 26-902.1(c)(1). However, the definitional

section of the regulations, § 26-301, states in relevant part: "Any word or term

not defined herein shall be used with a meaning as defined in Webster's Third

New International Dictionary of the English Language, unabridged, or latest

edition thereof." That dictionary defines "front" as "a face of a building[,]

especially [] the face that contains the principal entrance . . . ." It is undisputed


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that plaintiff's "principal entrance" faces Pine Street, not Schraalenburgh Road.

We must assume the governing body "was 'thoroughly conversant' and familiar

with its own statutory definitions."   Edgewater Inv. Assocs. v. Borough of

Edgewater,  201 N.J. Super. 267, 285 (App. Div. 1985) (quoting Barringer v.

Miele,  6 N.J. 139, 144 (1951)).

      For these reasons, we conclude the Board's interpretation of Ordinance §

26-902.1(c)(1), was erroneous, based both upon the plain language of the

ordinance and its context within the zoning regulations. We therefore revers e

the Law Division's order as to count one of plaintiff's complaint and enter

judgment in his favor.

      We remand the matter to the Board only for the following reasons.

Plaintiff's fence plan was amended during the hearings, and we have no idea

whether the Building Department would have approved the amended plan under

the regulations without the need to refer the permit application to the Board.

Nor do we know whether plaintiff intends to construct a fence using the same

plan and design.

      In short, the plan as submitted and amended was denied for more than one

reason. We trust the Board will only exercise its jurisdiction as appropriate and

if necessary.


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Reversed and remanded. We do not retain jurisdiction.




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