Daily Development for Tuesday, July 10, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
dirt@umkc.edu

I’m posting this a bit early because I leave in the morning for Zuhai, supposedly a pleasant Chinese coastal city, and the next day will cross the bridge to Macau.  Internet access may be spotty.  Be sure to read at least the first one - it’s a honey!!


Here is one of those ever popular (and overlong) “theme” DD’s, where the editor has identified a number of recent cases all dealing with the same subject matter, albeit different legal issues.  Today class, kiddies, is on Garages: 


ZONING AND LAND USE; ZONING ESTOPPEL; VARIANCES: Landowner may invoke estoppel doctrine to obtain zoning benefits conferred in error where landowner has relied upon such benefits and where the error resulted from a plausible, albeit incorrect, reading of the zoning rules.


Hartung v. Baker, 2006 Westlaw 1063291, Docket No. BER-L-1499-05 (N.J. Super. L. 4/21/06) (unreported decision)

Although an unpublished opinion, this is a really superb example of a winner in the elusive chase to invoke zoning estoppel, and is worth a read for anyone with a problem in this area. 


In 1997 Hartungs purchased a home with a detached garage.  The garage was five feet five inches from their neighbor’s boundary - within the five foot sideyard setback requirement. 


By 2004, the home was too cramped, and Hartungs elected to undertake a major remodel.  The remodel would add a half story to the house and a wing that would extend to and incorporate the garage into the structure of the house.  They submitted an informal inquiry to the city building department, with a chart indicating setback dimensions for their project.  A diagram clearly indicated that the addition would result in the garage, now incorporated into the house, being five feet, five inches from the boundary, and the chart indicated that this satisfied the five foot sideyard setback.  Hartungs did not take into account the fact that the zoning code had a ten foot sideyard setback for residences.  The five foot setback was only for free standing ancillary structures. 


The building department inspector also missed the significance of connecting the house to the garage, and certified the rough plans as approved.  Hartungs then retained an architect and undertook a more formal design which they submitted to the same inspector for a building permit, and he again approved the plans and issued the permit.  The appeals court noted that the inspector signed the architectural plans as “approved” less than six inches from the point on the plans that showed the five foot five inch side yard setback.  Hartungs then set out to construct their project, and four months of construction commenced, during which the foundation works clearly showed that the completed project would be within five feet, five inches of the boundary.


Ultimately, a neighbor complained to the City and the building department issued a “stop work” order.  In the dispute the affected neighbors filed a tax appeal, alleging that the proximity of the Hartungs’ new residence to their property diminished the value of their property, entitled them to an adjustment in their appraised value.  The city cited this tax appeal as evidence that it would be inequitable to permit Hartungs to continue on their unlawful course of construction, due to an error that the city characterized as “self created” by Hartungs.


The appeals court judge cited to Jantausch v. Borough of Verona, 41 N.J. Super. 89, 94 (Law Div. 1956), aff’d 24 N.J. 126 (1957), as the “polestar” decision in this area.  Jantausch took the position that for an estoppel claim to lie, 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 relied in good faith.    A subsequent New Jersey decision arguably amended the test by stating the approval agency’s original decision must be based upon “an issue of construction of the zoning ordinance or statute, 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.”

The court characterized a successful zoning estoppel case as a kind of “holy grail” that many seek  but few actual obtain.  It provided a chronological list of all important New Jersey appellate decisions on the subject to demonstrate that a successful outcome for the landowner in these cases is indeed elusive.  It then set forth nine factors that might be taken into account in the “totality of circumstances” analysis to establish whether estoppel is appropriate, assuming the preliminary requirement of Jantausch is satisfied:.


1.  What is the size or scope of the deviation from the zoning ordinance?
2.  What is the nature or quality of the deviation from the zoning ordinance?
3. What is the impact of the deviation from the zoning ordinance upon the immediate neighborhood?
4.What is the impact of the deviation from the zoning ordinance upon the overall zone plan and zoning ordinance?
5.  What is the respective culpability of the parties?
6.  What is the status of the party claiming the benefit of the equitable estoppel.
7.  Is there evidence of collusion or the potential for collusion?
8.  What is the harship to the party claiming the benefit of equitable estoppel?
9.  What is the detriment to the public interest if the estoppel is applied? 

Despite the city’s assertion that Hartungs misled the City building inspector, which led to the erroneous approval, the court held that the Jantausch test was satisfied here.  It characterized estoppel as the “proud champion of justice, morality, and common fairness.”  (Put that in your “useful quote” file.)


Comment: The case is a real “keeper,” but unfortunately states a relatively narrow basis for estoppel.  It is sensible, however.  If the city official’s error is patent, it is up to the landowner to identify the error and inappropriate to rely on it.  But it this the only situation in which other jurisdictions will grant an estoppel?


Compare: The following cases are all prior DD’s.

Congregation Etz Chaim v. City of Los Angeles, 371 F. 3d 1122 (9th Cir. 2004) (City will be estopped from reneging on building permit after applicant has invested substantially in project, even when permit issued erroneously and in violation of settlement agreement that applicant previously had entered into with City) (the editor thought this case to be clearly wrong); Bonaventure International, Inc.  v.  Borough of Spring Lake, 350 N.J. Super. 420, 795 A.2d 895 (App. Div. 2002) (When a municipality is aware of long-established but unlawful use and implicitly approves it by referring to it as apparently lawful in public documents, the municipality is equitably estopped from challenging the expanded use as against a good faith purchaser of the property); Equicor Dev. v. Westfield-Washington Tp., 758 N.E.2d 34 (Ind. 2001) (Zoning commission  is subject to the doctrine of equitable estoppel when it fails to point out a formal deficiency in a plat and an applicant reasonably relies o

n the commission's silence);. Pingitore v. Town of Cave Creek, 981 P.2d 129 (Ariz. App. 1998). (Town government may be estopped from enforcing zoning ordinance that conflicted with construction plan where town officials had approved significant elements of proposed project based upon compliance with earlier ordinance.)  But see: Ogar v. City of Haines, 51 P.3d 333 (Alaska 2002)  Issuance of building permit for a part of landowner's project does not constitute an "assertion of a position" with respect to other aspects of the project sufficient to invoke equitable estoppel permitting the project to proceed.


ZONING AND LAND USE; VARIANCES; INTERPRETATION:. A variance for the construction of a garage extending beyond setback restrictions is limited to the contruction of a structure for storage only, and cannot be relied upon to construct a structure providing living space, even where the “footprint” might be the same. 


Lussier v. Zoning Board of Appeals of Peabody, 854 N.E.2d 1236 (Mass. 2006). 

Lussier purchased a home in 1996.  The seller had obtained a variance for the home in 1995 (the “1995 variance”) to construct a one-story, two-car garage that, though otherwise zoning compliant, maintained only a one foot setback rather than the required twenty feet. After purchasing the property, Lussier constructed the garage. 


In 2003, Lussier sought and received a building permit and began construction on a second story of the garage, that would exceed the footprint, to be used as living space. Sheehans own the abutting property burdened by the decreased setback.  Sheehans made a demand on the building inspector for an enforcement action, and when refused, appealed to the zoning board of appeals of Peabody.  The Board granted the Sheehan’s request on two grounds: (i) violation of the zoning ordinance’s setback requirement and (ii) violation of the 1995 variance. 


The Board found that the addition required a new variance or modification of the 1995 variance, and overturned the building inspector’s refusal for an enforcement action.  Lussier appealed.


The Superior Court entered summary judgment for Lussier with no explanation.  The Board and the Sheehans appealed. 

The Supreme Judicial Court, after transferring the case from the Appeals Court, found that variances, which are subject to limits of time, use and structure, are to be sparingly granted.  Therefore, the words of the variance are to be construed against the individual and in favor of a board. 


The Supreme Judicial Court looked to language of the variance, a garage with stated dimensions.  While the term “garage” is not defined in the zoning ordinance, it does have a common understanding and usage as being where motor vehicles and household items are stored..  Because the use of a garage is for such storage activities, it is significantly less disruptive and intrusive than living space.  Therefore, the court found that the word garage must be read from the variance to not include living space. 


Finally, there were plans filed with the initial variance application, but not incorporated into the variance decision.  Apparently these plans would have shown the full scope of the “garage” project, including the second story and the proposed dimensions.  The court explained that while plans would have been helpful in determining scope, they cannot be relied upon without such


SERVITUDES; RESTRICTIVE COVENANTS; BUILDING RESTRICTIONS:  GARAGES: Restriction permitting the construction of a dwelling unit and a “private garage for not more than three cars” restricts only the number of cars, and a lot owner under the restriction could build more than one garage, but only if all garages had collective capacity for not more than three cars. 


Johnson v. Dawson, 856 N.E.2d 769 (Ind. App. 2006), also discussed under the heading:  Servitudes; Restrictive Covenants; Enforcement; Waiver.”


Plaintiffs sought to enjoin the construction of a new detached  two car garage on a property within their subdivision.     The subdivision covenants specified that “[n]o structure shall be erected, altered, placed or permitted to remain on any residential building lot other than one detached single-family dwelling not to exceed two stories in height and a private garage for not more than three cars.”  Id. at 773. 


In addition to the proposed detached garage, Defendants’ lot already contained an attached two-car garage.  Plaintiffs argued that only one garage per lot was permitted under the Covenants.  Noting that covenants are a type of express contract, the Court found that they are to be strictly construed and that ambiguous provisions should be construed ion favor of the free use of land.


Here the Court found the covenant to be clear as to the number of cars for which a garage could be constructed but ambiguous as to the number of garages allowed.  In rejecting Plaintiffs’ argument that the covenant allowed for the construction of only one garage per lot, the Court noted the contrast between the language allowing for “one detached single-family dwelling” and the relatively ambiguous provision as to “a garage.”  Concluding that the description of the garage in the singular was not indicative of the parties’ intent to restrict the number of garages, the Court agreed with the trial court that the intention of the covenants was to limit the number of cars for which garages may be erected and not the number of garages.  Accordingly, while the erection of a second garage on Defendants’ property was not a per se violation of the Covenants, erection of the garage such that total garage capacity on the lot exceeded three cars did violate the Covenants. 


Comment: Although the court found for the plaintiffs here, this almost became a very anti-covenant decision.  The editor does not agree that the probable intent of the parties was to permit more than one garage, but rather to restrict the size of the single permitted garage to three car capacity.  He feels that the presumption against ambiguous covenants was almost taken too far here. 


ZONING AND LAND USE; PROCEDURE; STANDING:. The Massachusetts statute barring unregistered foreign limited liability companies transacting business in the Commonwealth (“LLC”s) from bringing suit in state courts does not apply to administrative proceedings. 

Cottone v. Cedar Lake, LLC, 854 N.E.2d 456 (Mass.App.Ct. 2006). 

Cottones obtained a building permit to erect a garage and attached deck on their property.  After the improvements had been erected, Cedar Lake, LLC (“Cedar Lake”), the owner of an abutting lot, hired a surveyor, who determined that the Cottone’s garage was located about four feet from the property line and that the deck encroached on Cedar Lake’s property.  Cedar Lake then filed a complaint with the building inspector, requesting enforcement of the fifteen-foot set-back mandated by the applicable zoning by-law. 


The building inspector denied Cedar Lake’s request for relief, and Cedar Lake filed an appeal to the seven-member zoning board of appeals (the “Board”) which granted Cedar Lake’s request for relief by a vote of five to two. 


Cottones then brought an action in the trial court, challenging Cedar Lake’s standing before the Board as well as the authority of the Board to grant Cedar Lake’s request.  The trial court granted Cedar Lake’s motion to dismiss, and Cottones appealed.  The Court of Appeals affirmed.  As Cottones had removed the deck in question prior to commencement of the action, the issues before the Court pertained only to the set-back requirement with respect to the garage. 


The first matter at issue was Cedar Lake’s standing to appeal the decision of the building inspector to the Board.  Cedar Lake was a Connecticut LLC which had failed to comply with the Massachusetts statutory requirement that foreign LLCs transacting business in the Commonwealth register with the Secretary of State.  In arguing that Cedar Lake lacked standing before the Board, Cottones cited M.G.L. c. 156C, 54, under which an unregistered foreign LLC transacting business in the Commonwealth is barred from bringing an action or seeking recovery in the state’s courts.


The Court rejected the argument that this statute barred Cedar Lake’s appeal to the Board, finding no support in the unambiguous language of that statue for Cottones’ contention that it applies to administrative proceedings as well as judicial proceedings. 


Cottones then argued that Cedar Lake did not qualify as a “person aggrieved” within the meaning of M.G.L. c. 40A, 8, the statutory provision governing Cedar Lake’s appeal to the Board.  In support of this argument, Cottone cited Save the Bay, Inc. v. Department of Pub. Util, 366 Mass. 667 (1975), which it read to mean that standing under the M.G.L. c. 40A 8 extends only to those who would have standing in a court of law.  The Court rejected this broad reading of Save the Bay, concluding that “standing at the zoning board of appeals level is limited solely to an analysis of whether the party has a specific and substantial interest, such that they are a ‘person aggrieved.’”  Cottone at 459.  Having asserted “a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest,” Cedar Lake satisfied the requirements for standing before the Board.  Id. at 854, (quoting Harvard Square Defense Fund, Inc. v. Planning Bd. Of Cambridge,

27 Mass.App.Ct. at 492-493, 540 N.E. 2d 182). 

The Court declined to decide whether Cedar Lake would have had standing to appeal an adverse ruling by the Board, noting however that it was not barred from defending itself in the present action brought by Cottones. 


Finally, the court rejected the argument that the Board acted outside the scope of its authority by mandating that Cottones take one of several specified actions within sixty days of its decision, finding that Cottones were required only to submit a plan for compliance by the specified date and further that any requirement to demolish non-compliant structure would been within the Board’s authority anyway.  On the above grounds, the court affirmed.


reference in the decision.

Comment: Note that although the issue of the increased footprint might have decided the case, the court elected to reach further and to define variances including “garages” and to limit such variances to structures that fit that use. 

In light of the many and varied uses of garages in modern times, it is interesting that the court felt it necessary to make such a leap.  It is not uncommon, for instance, for hobbyists to use garages as workshops.  They might use electric saws or other equipment that would cause considerably greater impact on neighbors than residential uses.  Is such use somehow precluded by the terms of a variance?  What about the general zoning law permitting, for instance, free standing “garages?”  The editor sees the beginnings of a slippery slope here. 


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