Labrecque, Kolovsky and Allcorn.
Defendants appeal from a Law Division judgment which (1) reversed the board of adjustment's denial of a variance sought by plaintiff under N.J.S.A. 40:55-39(c) to permit the construction of a residence on an "undersized" lot; (2) granted plaintiff the requested variance, and (3) ordered the building inspector to issue a building permit authorizing the construction of the residence.
Plaintiff cross-appeals from an interlocutory order which adjudged that it was not entitled to the benefit of a variance which had been granted to a predecessor in title some 5 1/2 years before plaintiff purchased the property. The court ruled that the variance had expired by virtue of section 1709 of the borough zoning ordinance which provides that a variance or exception granted by the board "shall expire if no construction, alteration or conversion has been commenced within one year from the date of granting such variance or exception." The court rejected plaintiff's contention that the ordinance limitation is invalid.
The cross-appeal lacks merit. It has long been settled that a municipality may by ordinance limit the time within which work must start under a building permit. Sun Oil Co. v. Bradley Beach , 136 N.J.L. 307 (Sup. Ct. 1947),
aff'd o.b. 137 N.J.L. 658 (E. & A. 1948); 9 McQuillin, Municipal Corporations (3 rev. ed. 1964), § 26.219 at 566,
In Sun Oil Co. v. Bradley Beach the court said:
We cannot say that placing a time limit for the commencement of work under a building permit is unreasonable. It does not seem desirable that a permit holder should indefinitely delay the commencement of work. It is not unreasonable that there be a time limit when work must start under a building permit. [136 N.J.L. at 309]
The same considerations are applicable to and support the validity of an ordinance provision such as section 1709 fixing a reasonable period within which construction authorized by the grant of a variance must commence. It is not unreasonable or improper to require a new application for a building permit or a variance to be filed if construction pursuant to the permit or variance theretofore granted is not begun within the time limited by the ordinance.
Board of Education, Fort Lee v. Mayor, etc., Fort Lee , 31 N.J. Super. 22, 29 (App. Div. 1954), on which plaintiff relies, is not to the contrary. In Fort Lee, supra , the ordinance did not contain a limitation of time "within which a building permit may be issued following the grant of a variance." The decision in that case was but an application of the rule stated in 2 Rathkopf, Zoning and Planning (3 ed. 1966), c. 46 at 46-1 et seq:
When a variance or special exception is granted the use permitted thereby becomes a conforming use and such use is not lost through non-exercise, in the absence of a time limitation set forth in the variance itself or in the zoning ordinance. [Emphasis added]
We turn next to defendants' appeal. Plaintiff, on March 31, 1967, had purchased property designated as lots 9 and 10 in Block 49 on the Bernardsville tax map. Under zoning ordinance 230, adopted January 22, 1959, the lots are in an R-5 Residential zone in which each building lot is required to have a frontage ...