STONE HARBOR – A Superior Court judge has ordered mediation in the case of a Stone Court couple who have sued the Zoning Board over its rejection of their house expansion plans.

The order by Judge Michael Blee came one day after the board voted unanimously to reject a proposed settlement negotiated by its own attorney that would have ended the litigation.

Kara and Kyle Sweet, owners of the home on Stone Court, one of three narrow streets known as the Courts, applied last summer for variances by the Zoning Board to expand to a 1,300-square-foot, two-story home on their small lot, but were denied. They sued on Oct. 27.

They claimed the height restrictions imposed on Courts properties were illegal. They also argued that the restrictions preventing reasonable expansion of their home were “an improper attempt by the borough to create an historic preservation district.”

The Sweets are asking the court to set aside the Zoning Board’s denial of the variances they requested and order the board to approve the application. They also ask for attorney fees.

It was an attempt to settle this litigation that led to the rejection of the settlement agreement June 10 by the Zoning Board. Blee called the parties together and issued the order for mediation.

Blee’s order states that, to the extent possible, the court would like the mediation, to be presided over by attorney Debra Fascia, to be completed within 60 days.

History

The dispute has a long history and could be a prelude to litigation from other property owners with homes in the Courts.

Many of the homes date to an earlier era, when small bungalows were built on undersized lots. A 1980s-era ordinance limited the size of the homes that had not already been expanded to as little as 560 square feet and took away the ability of property owners to add a second story. Homeowners have advocated for greater flexibility to expand for years.

An ordinance change was adopted this year creating a Residential D zone, but it only applies to another previously restricted area of small homes on Linden Lane. The Courts were granted no new flexibility in that ordinance.

In July 2021 the Stone Harbor Borough Council introduced an ordinance that would have created a Residential D zoning district for the properties that have street frontage on Bower Court, Stone Court, Weber Court and Linden Lane. The ordinance allowed for “responsible development and improvement” of the properties, including the addition of a second story to space-limited homes on small lots.

Adding flexibility for more habitable space to Courts properties had been a subject of discussion and debate at the borough’s Planning Board. Despite the history of the Planning Board’s careful development of the ordinance, opposition arose immediately when it was introduced by the council.

Several residents, mostly from adjoining numbered streets, sought to stop the new ordinance by direct appeal to the governing body. Many of the opposition’s arguments focused on the fear of increased congestion and parking in their neighborhoods, as well as on a heightened security risk, especially from fire on the Courts’ narrow lanes. The ordinance failed when it came up for a vote to adopt.

A revised version was reintroduced in October. The previous ordinance from July failed by a vote of 4 to 2. In October the revised ordinance squeaked by when then-Councilman Ray Parzych changed his vote to affirmative, creating a 3-3 tie, which allowed Mayor Judith Davies-Dunhour to vote and break the tie in the affirmative. The ordinance was successfully reintroduced.

Along with congestion, parking and safety concerns, many of those opposed to the revised ordinance argued that its passage would be another blow to the preservation of “old Stone Harbor.” Parzych explained his vote change by speaking directly to the historic preservation argument when he said, “The old Stone Harbor is already gone.”

In a final vote on Dec. 7 the revised ordinance failed to be adopted. This time a new tactic by those opposed to its passage sealed its doom.

Making use of a little-known provision of state law, some of those opposed to the ordinance began a campaign to get property owners within 200 feet of the areas to be rezoned to formally petition against the ordinance. They gained a sufficient number of signatures to allow them to invoke a state law requirement that changed the necessary vote for passage of the ordinance from a simple majority to a supermajority of the six-member council. Passage now required four affirmative votes.

As the council prepared to consider the ordinance for adoption, one member, Reese Moore, recused himself from the discussion and vote because he and his wife own a property on 110th Street that backs onto a Court property. Moore had voted three previous times on the ordinance, seemingly unaware of his conflict until the December meeting. His earlier votes had been ‘no’ votes. He is no longer on the council, having been defeated in his bid for reelection in November 2023.

At the Dec. 7 meeting, council members Frank Dallahan and Robin Casper, both current members of the council, cast the two “no” votes that defeated the ordinance under the supermajority requirement.

One Courts homeowner said repeatedly that she was stunned by the outcome. Two “no” votes on the council defeated years of work with the Planning Board to get an ordinance to a vote.

The Settlement Rejection

The hearing before the Zoning Board with its conclusion in the vote to reject the proposed settlement is known as a Whispering Woods hearing. This is a duly noticed public hearing required by the courts consistent with the case of Whispering Woods at Bamm Harbor v. Middletown Planning Board (1987). In effect that case made a public hearing a requirement anytime a planning or zoning board desires to settle litigation with a developer, in this case the Sweets.

The arguments for and against the settlement during the public comment period were not new. Those opposed used the same arguments that doomed the earlier ordinances at the level of the Borough Council.

Those supporting the settlement criticized the motives of those who would deny Courts homeowners the right to reasonable living space while they did so from larger homes that dwarfed the space-restricted homes in the Courts.

Facts were disputed and emotions ran high; the issue of the Courts zoning has created some strong animosities in the community surrounding these streets. At one point Kara Sweet asked a resident from a neighboring numbered street, “Have you ever had a civil conversation with me?”

What was clear throughout the long hearing that culminated in the June 10 vote was that the Zoning Board members did not feel the decision to settle was a decision that they as a board of adjustment should be making.

Repeatedly during board discussion prior to the vote members expressed the view that the proposed settlement would set a precedent leading to effective rezoning in the Courts. Members argued they would be establishing new zoning and not just granting or rejecting a variance for a specific property, as is their normal function. They felt a decision on the settlement would open the door to suits by Courts property owners.

Paul Baldini, attorney to the board, said he had negotiated a settlement agreement with the Sweets that was as close as he could get to what the board had instructed him it could accept. “I did the best I could,” Baldini said, admitting that the compromises in the settlement agreement went beyond the desires set by the board as a framework for negotiations.

In the end it was not clear if the rejection was due to the terms of the settlement or the board’s strong sense that it was being asked to do something that it felt was outside of its function.

Contact the reporter, Vince Conti, at vconti@mcherald.com.