I Am Building A House . . . Can I Be Stopped?

After saving for years, you go to build your dream home. You spend hours with your designers, shop for your contractor and choose your materials. You finally file for your zoning and building permits, get your approvals and build! Construction begins. Things appear to be moving along nicely, and then the project comes to a screeching halt. The Municipal Construction Officials have ordered you to stop work. During the building process, it is discovered that your project is too tall, too big or too close to a neighbor’s property. After investing hundreds of hours and thousands of dollars, you have learned that somewhere along the way, a mistake has been made and you cannot proceed further until you fix it. As horrid and inconceivable as this scenario appears, it can and does happen on rare occasions.
The question is: how could it happen? Whenever a building project occurs there are two separate and distinct types of municipal reviews: a review for a Zoning Permit and a review for Construction Permit. The Zoning Permit review is usually performed by the Municipal Zoning Officer and is to assure that the proposed project meets all local zoning requirements, both as to use and as to bulk” criteria. Each municipality and each zone within that municipality have their own set of standards which limit and define such things as the height of a home; front, side and rear yard setbacks; floor area ratios (the floor area of the home compared to the size of the lot); minimum greenery and the like. Conversely, the Building Permit review is more technical and related to assuring that the framing, electrical, plumbing and other building and life safety issues are addressed.

A Mistake

Say for example, a mistake is made on a plan and incorrectly calculates one of the bulk criteria such as the height. During construction, a neighbor or passerby complains that the house looks too tall. The Zoning Officer scrutinizes the plans once again and realizes there was a miscalculation. This is what happened in the case of Grasso v. Borough of Spring Lake Heights, decided by the Appellate Division on November 24, 2004. In Grasso the owner/builder received his permits and spent considerable sums on construction. While under construction, it was determined that the method the builder used to calculate the height was incorrect (in Spring Lake Heights, the height of a home is measured from the curb, not the foundation). The project was stopped and Grasso was required to apply to the local Board of Adjustment to seek a variance for the height of the home. The Board of Adjustment denied the variance request.

Grasso appealed to the Court. The Court upheld the denial in spite of Grasso’s legal argument that the municipality should be “estopped” (i.e. barred) from disallowing Grasso to build his project because
Grasso relied on the permits which were issued and invested substantial funds. The Court held:
“. . .a municipality may be estopped from enforcing its zoning ordinance if a landowner makes substantial expenditures in good faith reliance on a permit that was issued because of a municipal official’s erroneous, but at least debatable, interpretation of the Zoning Ordinance.”

“A building permit issued contrary to a Zoning Ordinance or building code cannot ground any rights in the applicant.”

As can be seen from the Grasso holding, a municipality will not be estopped from revoking a permit where a clear “undebatable” error has been made. Put in other terms, if there is no debate in the interpretation relating to the zoning error, the municipality can stop the project dead in its tracks. This is a painful outcome. Therefore, it is essential that you, as a homeowner or commercial owner have comfort before your project begins that your project meets local codes – both the building code and the zoning code. Rest assured that your design professionals are there to protect you to make sure mistakes like these do not occur. Also, when a mistake is revealed, Boards usually tend to be sympathetic to your plight. However, when in doubt, do not be afraid to ask the tough questions before construction start

James J. Delia is a Partner at Wells, Jaworski & Liebman who practices in the Land Use and Real Estate areas.

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