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North Wildwood Homeowner Appeals Court’s Zoning Ruling – 5.24.2006

By C.M. Mattessich

NORTH WILDWOOD – This community’s Beach Creek Road seems more alley than road – the kind that arose spontaneously in shore communities up and down the coast for more than a century.  It’s the kind of area where, even as “newbies” were developing second homes on expansive oceanfront (and, more recently, bayside) lots elsewhere in town, many local residents were buying into denser configurations of small, squared-off cottages situate quite close to one another.
The kind of neighborhood where you might call a reminder out an open window to a neighbor’s child to put on shoes or a sweater, or you might run a few feet through rain on a Saturday afternoon to join neighbors for board games or cards.
Over time, of course, many of these cottages have become prized new purchases for upscale homebuyers.
Whether purchased recently or held for generations, the cottages frequently fall far short of dimensions required by current zoning.  And, sometimes, when owners try to renovate – say, to accommodate a larger family, to replace a rotting foundation, or simply to stay in tune with the rest of a community by upgrading – trouble begins.
In a recent decision that some experts read as a strong indication that the courts intend to put teeth into current zoning requirements, Superior Court Judge Valerie Armstrong has reversed the North Wildwood Zoning Board of Adjustment’s after-the-fact approval of certain Beach Creek Road renovations that do not meet current zoning requirements.
Roots of Controversy
The matter started amicably enough.
Situate along the intercoastal waterway, Beach Creek Road can be accessed at the west ends of 7th and 8th Avenues, about a block from the Marina Bay Towers project on New York Avenue.
John Strothers, a year-round resident at 713 Beach Creek Rd., wanted to expand the small one-story cottage he had purchased in 1996 for $71,600.  County tax records reflect that the original cottage was built in 1950, and that the assessed value of the property now has climbed to $829,600.
Strothers’ side yard borders the side yard of John and Sally Cortese at 709 Beach Creek Rd.  The term “side yards” seems overstatement, however, for the houses are only about three feet apart (pictured at page 73).
The Corteses purchased their rectangular two-story duplex in 1987.  County tax records indicate that the home was built in 1974 and is currently assessed at $626,500.  The land alone, consisting of a mere .05 acre, is valued at $500,000.
Judge Armstrong’s opinion traces how, in February 2001, Strothers sought a side yard setback variance to construct a partial second-floor addition with a deck.  Strothers had discussed the proposal with the Corteses, who, according to the opinion, were concerned with fire safety issues and the impact that the addition might have on their light, air, privacy and views.
Strothers agreed to construct his building in a manner that would minimize its impact on the Corteses, and the Corteses actually appeared in favor of the proposal at the February 2001 Zoning Board hearing.
The Board’s 2001 approval noted Strothers’ agreement to “place the deck beams more to the center of the deck so the neighbor’s view is not blocked.”
When Strothers built his addition, according to the court opinion, he added full second and third floors extending up from the footprint of the first floor, and also extending an additional foot and a half toward the water.  (It appears, but could not be confirmed by press time, that the original building’s eaves may have extended that additional distance.)
In 2002, North Wildwood’s Zoning Officer reportedly tried unsuccessfully to contact Strothers to discuss the building;  Strothers received two zoning citations for his failure to respond.
Last year, however, Strothers did appear before the board, in the court’s words, “to legitimize the improvements he had made.”
Initially at a January 2005 hearing, Strothers’ attorney, Louis Dwyer, argued that Strothers’ 2001 variance request had not even been necessary since Strothers was entitled to construct three floors along the original first floor footprint without seeking Zoning Board approval.
The Board disagreed with Dwyer’s interpretation and, failing in that first approach, Dwyer  argued that Strothers should receive a variance.
Dwyer did not respond to the Herald’s request for an interview.  The Corteses’ attorney, Christopher Baylinson of Perskie, Nehmad & Perillo, P.C., said that Strothers submitted “absolutely no evidence justifiying the Board to order a variance.”
“Strothers presented no witnesses, no planning professionals or engineering professionals, and he didn’t testify,” said Baylinson.
Sally Cortese did appear, testifying at length about how, in her view, the new building violated the agreement Strothers had struck with the Corteses and interfered with the Corteses’ enjoyment of their property.
By a four to three vote, the Board granted Strothers a side yard setback variance in April 2005.
The Corteses then filed an action in Superior Court seeking to have the variance overturned.
Court Reverses
Characterizing Strothers’ addition as “illegal,” Judge Armstrong found that the dilemma was created “by the deliberate actions of Strothers,” who “unilaterally constructed the addition to the property in blatant violation of the board approval granted in 2001.” 
Armstrong strongly criticized Strothers for not applying to the Zoning Board “prior to commencing construction” for a modification of the 2001 approval.
As for the Zoning Board, Armstrong found its 2005 after-the-fact blessing to be “arbitrary, capricious and unreasonable.”
Attorney Baylinson noted that the court did not specifically order a tear-town, but that it is within the town’s power to do so.
He has seen these situations before, he said, but is surprised every time.  “Typically, you’d like to think that people construct within the confines of the law,” he noted.
“If they’ve made a mistake they can go for new approvals, but a situation like this one is particularly egregious because they had come to an agreement with my clients to preserve  open space, they had submitted plans to the building department, and they had received approval for a building that had one-half of a second floor.  Then they went out and built a full two-story addition.”
Strothers Appeals
Last week, Strothers’ attorney filed an appeal of Judge Armstrong’s ruling, focusing on the argument that Strothers was free to construct vertically as long as he stayed within the original first floor’s footprint.
Judge Armstrong’s opinion itself “acknowledg[ed] the apparent split in authority as to whether a nonconforming structure can be expanded without the need for a variance if the nonconformity itself purportedly was not expanded.”
The appeal, which will be watched closely by land use pros, could take as much as a year.

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