The plaintiffs’ home is located in a residential area with small irregular lots containing small houses built close to one another. The plaintiff sought and obtained a permit to construct an addition for a second floor bedroom. After having the permit for a few weeks, a zoning officer issued a stop construction order alleging the construction violated setback and bulk requirements. Following a two day public hearing, the ZBA denied the requested variance on the grounds it would create “substantial detriment to the public good,” as it would interfere with light, air, open space, and would interfere with the privacy of other residents.
The NJ appeals court noted that under state law, for a variance to be granted, the petitioner must satisfy two criteria, that there is an undue hardship, and that the variance would not cause a substantial detriment to the public good. The court found that the plaintiff did not adequately show there was not a substantial detriment to the community.
Next, the court addressed the plaintiffs’ claim that the town should be estopped from issuing the stop construction order under the doctrine of equitable estoppel. They argued that they had obtained the permit in good faith, reasonably relied upon the permit, and spent $35,000 on the addition, which was substantially completed. The court explained that for an equitable estoppel claim to succeed in New Jersey, the plaintiff must show there was an ambiguous law and the zoning official’s interpretation was “debatable.” The court found the plaintiff did not satisfy this requirement as the ordinance was unambiguous and the interpretation was contrary to the language.
Fernandez v. Township of Bloomfield Zoning Board of Adjustment, 2010 WL 5428868 (N.J. Sup. Ct. App. Div., 12/31/2010)
The opinion can be accessed at: http://www.leagle.com/xmlResult.aspx?xmldoc=In%20NJCO%2020101116239.xml&docbase=CSLWAR3-2007-CURR
This would not have been the outcome under Vermont case law. The Vermont Supreme Court has held that, once a zoning permit has issued, if the permit is not appealed with the relevant statutory appeal period, the permit is final and cannot be collaterally attacked either by challenge to the permit itself, or by the filing of a complaint alleging that, notwithstanding the issuance of the permit, the use of the property does not comply with the zoning ordinance. The policy favoring the finality of unappealed permits was discussed by the Vermont Supreme Court in City of South Burlington v. Department of Corrections, 171 Vt. 587; 762 A.2d 1229 (2000).
By: Jay Kenlan on January 26, 2011
at 8:47 am