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Independent Realty Co. v. Township of North Bergen

April 8, 2005


Before Judges Parrillo, Grall and Riva.

The opinion of the court was delivered by: Parrillo, J.A.D.


Argued March 1, 2005

Plaintiff, Independent Realty Company (Independent), appeals from the order of the Law Division dismissing its declaratory judgment action. In its lawsuit, plaintiff sought a determination both that a change in the township's zoning ordinance did not vitiate prior site plan and variance approvals, and that plaintiff was entitled to the issuance of building permits consistent with those approvals. The trial judge found no justiciable controversy ripe for adjudication or any exhaustion of administrative remedies and, therefore, declined to render a purely advisory opinion. We affirm.

The facts may be briefly stated. Plaintiff is the owner of undeveloped property at 60th Street and Granton Avenue in the Township of North Bergen (township). In 1987, plaintiff filed an application with the township's Zoning Board of Adjustment for site plan approval and for various use and bulk variances to construct a 27-story residential building, consisting of twenty floors of residential living space and seven floors of parking. The residential living space would contain approximately 310 dwelling units. The Board of Adjustment granted site plan approval with variances and issued a corresponding resolution on May 4, 1988, memorializing its decision.

Since obtaining these approvals, plaintiff has never sought to develop or construct on the site. In fact, plaintiff has never filed to renew its approval nor even applied to the township construction official for the requisite permits to begin construction on the property. In this regard, prior to applying for a construction permit, an applicant must submit to the township construction official the following material: a) approval from the Municipal Utilities Authority (MUA) representing that the applicant has applied for and received a sewer connection permit; b) the pre-requisite for an MUA approval, which is a Treatment Works Approval (TWA) from the New Jersey Department of Environmental Protection (DEP); c) proof of payment of 50% of the sewage connection fee to the MUA, N.J.S.A. 40:14A-8; and d) a certification from the Hudson, Essex, & Passaic Soil Conservation District (HEPSCD) that states that the proposed construction meets all applicable soil and sediment control standards, N.J.S.A. 4:24-39 to -55. As noted, plaintiff has never applied for a construction permit, nor taken any steps to obtain the necessary approvals or certifications from the MUA, the DEP or the HEPSCD, nor submitted proof of payment of the sewer connection fee to the MUA.

When plaintiff's application was approved in 1988, its property was situated in a zone designated as R-2, which allowed for multi-family high rise dwellings in accordance with the zoning ordinance then in effect. However, the township zoning ordinance was amended in June, 1999, adding an R-3 zone and changing the zone in which plaintiff's property is located from R-2 to R-3. The 1999 ordinance revision was adopted after the township's Master Plan was updated by the Municipal Planning Board in April, 1994. The plan provided in relevant part:

The proposed R-3 zone is simply a redesignated R2 zone permitting all the housing types now permitted in the R2 zone (i.e. a proposed change on the map from R2 to R3 is a change in designation only; it represents no change in housing density). Thus, the general intent of the 1999 revision was articulated in Article 1, Section 2 of the amended ordinance wherein it provided that the regulations were: based on the land use plan element of the master plan as adopted and subsequently amended by the North Bergen Planning Board and designed to be substantially consistent therewith with respect to, among other factors, the character of each district and its peculiar suitability for certain uses with a view to encouraging the most appropriate uses of land throughout the Township of North Bergen. The amended ordinance further said that:

[t]his ordinance is not intended to abrogate or annul any building permit, certificate of occupancy, variance or other lawful permit issued and in full force and effect on the effective date of this ordinance.

Another amendment to the zoning ordinance, adopted in October, 1999, applied prospectively to variances granted"hereafter", and provided for the expiration of the variance if construction on the property were not commenced within one year of the date of the grant.

Despite no adverse ruling by the township Planning Board, Board of Adjustment, or construction officials, and without any demonstration that the site plan will not remain viable in light of the zoning revisions, plaintiff instituted this declaratory judgment action seeking a determination that prior approvals remain in full force and effect and that it is entitled to the issuance of building permits consistent with these approvals. On cross-motions for summary judgment, the trial court dismissed plaintiff's action, finding plaintiff had failed either to present a justiciable controversy or exhaust its administrative remedies. In declining to render an advisory opinion, the judge reasoned:

There is no judicial controversy before the Court. The plaintiff has not taken any steps to obtain approvals from the New Jersey Department of Environmental Protection, the MUA or the Hudson EsseX Passaic Soil Conservation District. The plaintiff has also not attempted to obtain a construction permit.

The plaintiff, therefore, has not and cannot present any showing that it would be prevented from moving forward with its construction plans. Rather, the plaintiff is asking the Court to make a determination as to a possible conflict that may arise in futuro. It is not within this Court's purview to render such an advisory opinion.....

There is neither a question of law nor a question of fact before this Court. The interests of justice do not require this Court to render what would amount to an advisory opinion where the parties have not been able ...

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