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966 Video, Inc. v. Mayor and Tp. Committee of Hazlet Tp.

September 27, 1995

966 VIDEO, INC., PLAINTIFF,
v.
MAYOR AND TOWNSHIP COMMITTEE OF HAZLET TOWNSHIP, ZONING OFFICER AND CONSTRUCTION CODE OFFICIAL OF HAZLET TOWNSHIP, DEFENDANTS.



Hayser, J.t.c., temporarily assigned.

The opinion of the court was delivered by: Hayser

OPINION

HAYSER, J.T.C., temporarily assigned.

Plaintiff is the leasee of certain property denoted as Block 68.1, Lot 27 of the Township of Hazlet Tax Map, also known as 966-972 Highway 36, Hazlet Township. The subject property is located in the B-H (Business Highway) Zoning District.

In October, 1993, an application for a certificate of continued occupancy to operate a video and bookstore on the subject property was denied by defendant construction code official due to the failure to obtain a zoning permit from defendant zoning officer. *fn1 Apparently, no appeals as to these denials were brought until on or about March 8, 1994, when plaintiff inexplicably sought permission of the defendant zoning officer to appeal, however untimely, the denial of the zoning permit to the Township's zoning board of adjustment. See N.J.S.A. 40:55D-72a.

That permission, though originally denied, was finally granted on or about March 17, 1994. No further action was apparently taken before the zoning board and apparently plaintiff sought no judicial relief. Moreover, N.J.S.A. 40:55D-73b was apparently never invoked, assuming an application was before the board of adjustment with an appeal having been taken.

On March 1, 1994, defendant Township Committee finally adopted Township Ordinance No. 940-94. Among other things, this ordinance provided for a new zoning district, i.e., the BP-3 (Business Professional) District, whose permitted uses included "sexually oriented businesses," which in turn was defined to include an adult bookstore or video store. Moreover, the ordinance prohibited such a business within 1500 feet of a place of worship, 500 feet of a school or 1000 feet of any public park or playground. Finally, the ordinance prohibited the location of any "sexually oriented business" in any zoning district except the BP-3 Zoning District. Plaintiff's property was not located in this new zoning district.

On March 15, 1994, defendant Township Committee finally adopted Township Ordinance NO. 944-94, amending the earlier ordinance to provide for "sexually oriented businesses" to be located in the newly created I-A-1 (Industrial Assembly) District and added to the permitted uses in the I-M (Industrial Marine) District. Again, plaintiff's property was not included in these zoning districts or added to the BP-3 Zoning District, the only zones where "sexually oriented businesses" were permitted to be located.

In July, 1994, plaintiff, again submitted an application for a certification of continued occupancy. In August, 1994, defendant zoning officer requested further information as to "the specific nature of videos/books/magazines that are proposed to be offered for sale or rental," in order that a zoning determination could be made as to whether the proposed use was permitted in the B-H Zoning District which did not permit "sexually oriented businesses." On September 3, 1994, plaintiff's counsel made further inquiry as to defendant zoning officer's earlier letter. On September 13, 1994, defendant zoning officer reiterated his earlier request for information.

When no further information was provided, the application for a certificate of continued occupancy was denied on or about October 13, 1994. Apparently no appeals as to these denials, i.e. zoning permit and/or certificate of continued occupancy, were ever brought until now. *fn2 Finally, on or about December 23, 1994, defendant Zoning Officer advised plaintiff that if a use was to commence prior to the issuance of a certificate of continued occupancy, prosecution for an ordinance violation would follow.

On March 6, 1995, plaintiff filed a complaint in lieu of prerogative writs against defendants Mayor and Township Committee, zoning officer and construction code official. *fn3 In its complaint, plaintiff sought various relief against these defendants:

1. An order requiring the defendant zoning officer and construction code official to timely issue any required zoning permit and certification of continued occupancy.

2. A determination of the constitutional and statutory validity of Township Ordinance No. 944-94.

3. Damage claims under 42 U.S.C. § 1983 against (a) the defendant zoning officer and construction code official for their actions before and after the adoption of the ordinance in question claimed in violation of the First, Fifth, and Fourteenth Amendments to the United States and New Jersey Constitutions, and (b) all defendants for a claimed conspiracy to violate plaintiff's rights under the Fifth and Fourteenth Amendments to the United States Constitution.

The issues to be resolved by the court at this time as framed by the pleadings and pre trial order of June 12, 1995, are as follows:

1. Is the challenge to the validity of Township Ordinance No. 944-94 time barred under R.4:69-6?

2. Are plaintiff's claims barred under the doctrines of waiver, estoppel and/or laches?

3. Has plaintiff failed to exhaust its administrative remedies, and, if so, what are the consequences?

4. Are plaintiff's damage claims barred under the immunities claimed by defendants?

Discussion

A. Time Bar Rule

Plaintiff argues that Township Ordinance No. 944-90 "was specifically adopted to thwart plaintiffs (sic) attempt to open its proposed business in the premises described above." (Paragraph 10, Second Count, Verified Complaint) *fn4

In its challenge to the ordinance, defendants argue that plaintiff is belatedly seeking to avoid the consequences of R.4:69-6(a) by attempting to cloak its claims, now, in part at ...


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