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Township of Mahwah v. Landscaping Technologies Inc.

Decided: January 20, 1989.

TOWNSHIP OF MAHWAH, PLAINTIFF-APPELLANT,
v.
LANDSCAPING TECHNOLOGIES, INC. D/B/A BIG "G" NURSERY, DEFENDANT-RESPONDENT



On appeal from Superior Court, Law Division, Bergen County.

Antell and Havey. The opinion of the court was delivered by Antell, P.J.A.D.

Antell

[230 NJSuper Page 107] Plaintiff appeals from a judgment denying its request for injunctive relief against defendant's commercial use of its property within an exclusively residential zone. The trial court found plaintiff was equitably estopped from enforcing the ordinance because it had issued, albeit mistakenly, a Certificate of Continued Occupancy reciting that the use which plaintiff seeks to enjoin was a valid nonconforming use. The certificate

was issued before defendant acquired the property and was allegedly relied upon by defendant in proceeding with the acquisition.

The property in question consists of a "front lot" and a "back lot." The front lot is located on Block 81 and the back lot on Block 82. Block 81 fronts on 800 Wyckoff Avenue and is separated from Block 82 by a right-of-way designated as Jefferson Street. Both lots were acquired by defendant in 1986, both are located in the R20, single-family residential zone and both are being used by defendant in the operation of a tree nursery business which it also purchased from the previous landowner in 1986. It is clear that the conduct of such a business is a valid nonconforming use only as to the front lot. The use is impermissible as to the rear lot, however, and it is as to this lot plaintiff seeks to have the use enjoined.

On February 19, 1986, after defendant contracted to purchase the property and business, defendant's attorney wrote to the Mahwah Planning Board, enclosing a Tenant Approval Application and requesting a Certificate of Occupancy for the property and business. The letter stated that defendant intended to continue the identical business conducted by the previous owner and specified that it would be carried on on both the front and rear lots. On February 21, 1986, the following reply was sent to defendant's attorney by Gary L. Montroy, who signed it as the township "construction official":

In reply to your letter dated 2/19/86 regarding the above referenced property, please be advised that the business is a legal non-conforming use and can be continued as is.

Attached, please find a Continued Certificate of Occupancy issued to Landscaping Technologies, Inc.

The enclosed Certificate of Continued Occupancy identifies the property as located at 800 Wyckoff Avenue and specifies that "the building is approved for continued occupancy," and reads that the purpose of the Tenant Application is to "Continue nonconforming use." Although designated in the letter as

the construction official, Montroy also served in the capacity of zoning officer.

On May 6, 1986, Montroy wrote to defendant, stating that it had just been "brought to [his] attention" that the nursery's nonconforming use had been expanded to the rear lot, and that the expansion could not be permitted "until application is made and approval received from the Board of Adjustment."

In entering judgment for defendant, the trial court concluded that the Certificate of Continued Occupancy was a "sufficient basis" upon which to allow the defendant to continue the use and placed reliance upon Jantausch v. Borough of Verona, 41 N.J. Super. 89 (Law Div.1956), aff'd 24 N.J. 326 (1957), and Hill v. Bd. Adjust., Bor. of Eatontown, 122 N.J. Super. 156 (App.Div.1972). Both cases deal with the rights of a landowner to proceed with construction on the strength of a building permit which was mistakenly issued. The case at hand involves the ...


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