STONE HARBOR – Following a close to three-hour hearing on Monday, Aug. 5, the borough’s Zoning Board of Adjustment narrowly approved a settlement proposal to end litigation with the owners of 23 Stone Court.
In March 2023, Kara and Kyle Sweet, owners of the home on Stone Court, one of three narrow streets known as the Courts, applied for variances by the Zoning Board to expand to a 1,300-square-foot, two-story home on their small lot. The application was denied and the Sweets sued the borough and the Zoning Board on Oct. 27, 2023.
An attempt in June 2024 to reach agreement with the board failed on a unanimous vote against a proposed settlement despite the fact that the board’s attorney participated in the drafting of the agreement. The case moved back to Superior Court where Judge Michael Blee ordered mediation. On Aug. 5, a new settlement agreement was placed before the Zoning Board and a Whispering Woods hearing was held.
Whispering Woods at Bamm Harbor v. Middletown Planning Board (1987) is a case that mandates a public hearing anytime a planning or zoning board desires to settle litigation with a developer, in this case the Sweets.
The members of the public who spoke at the meeting were overwhelmingly against the settlement, which failed to gain approval on the evening’s first board vote. Only after Kara Street made a new concession on the proposed structure’s height did the vote turn from a 4-to-3 defeat into a 4-to-3 acceptance of the settlement memorandum.
Kara Sweet’s last minute concession was to reduce the proposed height of the structure from the 25 feet as it was in the settlement agreement to 22 feet, the proposed height limit in a 2021 ordinance put forth by the Planning Board and rejected by the Stone Harbor Borough Council.
The rejected ordinance had been the product of Planning Board deliberations that sought to provide some form of space “relief” to the owners of the tiny cottages on the courts. Since it was rejected, it has no legal standing but the document was often used as a benchmark or reference point during the Zoning Board hearings.
The settlement agreement as modified by the last-minute amendment allows for a second story with the maximum height of the home set at 22 feet from defined flood elevation level. The first floor will be no more than 42.2% of the lot size and the second floor has a maximum of 25% with open porches allowed. Final construction plans would still need review and signoff by the construction official.
The agreement contains a stipulation of dismissal with prejudice of claims against the borough.
One surprise in the hearing discussion was a statement by the board attorney Paul Baldini that the governing body had already accepted the terms of the mediation memorandum settlement. There has never been a public discussion or vote of the Stone Harbor Council on the matter. Baldini said he had no knowledge of how council solicitor Anthony Bocchi “went about determining that the council accepted the terms.” According to Baldini, Bocchi informed Judge Blee of the acceptance.
Strong opposition to the settlement centered on fire and public safety issues, an asserted canyon effect created by taller buildings on the narrow Courts, fear that settlement invites others to sue the borough, concern that agreement opens the door to occupancy and parking issues if other property owners follow and also litigate, and a strong sense that the Zoning Board is engaged in making zoning regulations, which is not their role.
The settlement removes the Zoning Board from the conflict but does not end it. At least two individuals spoke of potential new litigation to stop the proposed construction at 23 Stone Court.
Thomas Mutchler testified at the meeting in opposition to the settlement. Mutchler, who owns property on 110th Street, is a court-approved intervenor in the case. Mutchler argued that acceptance of the settlement by the board was tantamount to “rewriting the borough’s zoning code.”
Maryann Zwicker, also a property owner on 110th Street, indicated that she is part of a group of residents in the area who have petitioned the court to intervene in the case. Zwicker also challenged the board on a rule issue saying that she believed that board rules required that any decision to accept the settlement must be the product of a supermajority vote and could not be done by a simple majority. Baldini instructed the board that a simple majority was sufficient.
In the end a simple majority did accept the settlement terms with the reduced height maximum.
Contact the reporter, Vince Conti, at vconti@cmcherald.com.
