Bray v. CAPE MAY CITY ZONING BD.

875 A.2d 254, 378 N.J. Super. 160
CourtNew Jersey Superior Court Appellate Division
DecidedJune 14, 2005
StatusPublished
Cited by3 cases

This text of 875 A.2d 254 (Bray v. CAPE MAY CITY ZONING BD.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bray v. CAPE MAY CITY ZONING BD., 875 A.2d 254, 378 N.J. Super. 160 (N.J. Ct. App. 2005).

Opinion

875 A.2d 254 (2005)
378 N.J. Super. 160

J. Beyer BRAY and Mary Bray, Plaintiffs-Appellants,
v.
CAPE MAY CITY ZONING BOARD OF ADJUSTMENT, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued April 19, 2005.
Decided June 14, 2005.

*255 Gerard W. Quinn, Atlantic City, argued the cause for appellants (Cooper, Levenson, April, Niedelman & Wagenheim, attorneys; Mr. Quinn, on the brief).

James H. Pickering, Jr., argued the cause for respondent.

Before Judges SKILLMAN, GRALL and GILROY.

The opinion of the court was delivered by

SKILLMAN, P.J.A.D.

Plaintiffs obtained site plan approval from the Cape May City Planning Board for development of a "tourist/guest house," which is a permitted use in the zone in which their property is located. Seven years later, they applied to the Board of Adjustment for an opinion that the facility constructed pursuant to this site plan approval is actually a hotel, which is not a permitted use in the zone, and that plaintiffs are entitled to operate a public restaurant in that facility as an accessory use. The Board of Adjustment rejected this claim, and the trial court affirmed the Board's decision. We hold that the doctrine of judicial estoppel bars plaintiffs from claiming that the facility for which they obtained site plan approval as a "tourist/guest house" is actually a "hotel" in which they may operate a restaurant as an accessory use.

On October 24, 1994, plaintiffs applied to the Cape May City Planning Board for site plan approval for a proposed development that they described as a "Guest House." Plaintiffs' application stated that the present use of the structure on the property, a historic building called the "George Allen House," was an "Inactive Guest House," and that their proposed development would consist of twenty-three guestrooms and owner's quarters. The development was planned to be completed in two phases. In the first phase, the existing building would be restored for fourteen guestrooms, and in the second phase, an addition would be constructed to accommodate nine more guestrooms, the owner's quarters and a small conference facility. Plaintiffs also applied for a number of bulk variances.

When plaintiffs applied for approval of their proposed site plan, "tourist/guest houses" were a permitted use in the zone where the property is located, but "hotels" were not a permitted use. This zoning remains in effect at the present time.

During the hearing on plaintiffs' application, some members of the Planning Board expressed concern that plaintiffs' proposed development would be a hotel, but plaintiffs reassured the Board that their business would be simply a bed and breakfast that would fall within the zoning ordinance's definition of a "tourist/guest house." At one point during the hearing, a Board member had the following colloquy with plaintiffs' counsel:

[Board member]: ... I just wondered what your definition of a hotel versus a —
*256 [Plaintiffs' counsel]: We don't ... intend to — this is designed to be a bed and breakfast inn, and it's recognized under your ordinances historically and as spelled out. You know, is it a hotel under some definitions? Absolutely.
[Board member]: Well, ... I could buy ... the bed and breakfast with the original building, but with this addition going on, you know, ... I think we're cutting a real fine line here, and I understand it is your latitude to call it a bed and breakfast, but it —
[Plaintiffs' counsel]: To me it's a bed and breakfast.
[Board member]: — [T]o me it's a hotel. So that's all.
[Plaintiffs' counsel]: You can call it whatever you — you can call it whatever you like, but ... it meets both definitions.
....
[Plaintiffs' counsel]: ... [T]here's no attempt to play with any definitions here. This is absolutely, without question, designed to be a large bed and breakfast inn, period, end of story.

On February 15, 1995, the Planning Board granted plaintiffs' application for approval of its site plan and the associated bulk variances, which was memorialized by a resolution adopted on April 5, 1995.

Shortly after obtaining these approvals, plaintiffs applied for approval of revisions to their site plan, including the proposed addition of a kitchen in the basement, and additional bulk variances. At the hearing on this application, plaintiffs indicated that the kitchen would be used to provide breakfasts for guests at the bed and breakfast facility and also enable plaintiffs to make lunches available for guests. When Board members expressed concern that plaintiffs might later attempt to convert their premises to other uses, plaintiffs' counsel responded:

[W]e didn't come in here and say, "Hey, guys, we want to build a couple different buildings on this property, we want to open up stores, we want to open up restaurants." We didn't do any of that. We said, "This is a bed and breakfast...."

This response was echoed by Richard Wilde, who was one of the facility's owners at the time:

It's not a restaurant.... It's a kitchen in our house so that we can cater to our guests.

Plaintiffs' counsel also noted that restaurants are not a permitted use in the zone and therefore a use variance would be required to utilize the property for this purpose:

[T]here seemed to be a question whether we had a hidden agenda to create a restaurant at this juncture, and that's not the intention. We recognize that would take a use variance. We're not asking for a use variance. This Board couldn't give one, anyway. They're not authorized to. We're not here for that, nor is that our plan.

On November 29, 1995, the Planning Board granted plaintiffs' application for approval of the revisions to their site plan, which was memorialized by a resolution adopted on February 7, 1996.

On April 3, 1996, the Board adopted another resolution granting plaintiffs final site plan approval. This resolution stated: "The final plan shall have a note stating the applicants understand and agree that the service of meals shall be limited to ninety-six (96) registered guests in accordance with subsection 19-38.2 of the Cape May City Zoning Ordinance." The only permitted accessory use for tourist/guest houses under this subsection of the zoning *257 ordinance is "service of meals, limited to registered guests."

On January 14, 1998, plaintiffs applied to the Planning Board for approval of additional revisions to their site plan to allow construction of a swimming pool and pool house. This application stated that the use of the facility as a "tourist/guest house" would remain the same. In his comments regarding this application, the zoning officer indicated that a function had been conducted at plaintiffs' facility, which apparently involved service of food to persons other than registered guests, and that "[i]n order to operate a restaurant at this site the applicants must apply to the Zoning Board of adjustment for a use variance and site plan approval."

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875 A.2d 254, 378 N.J. Super. 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bray-v-cape-may-city-zoning-bd-njsuperctappdiv-2005.