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Kalnas v. Township of Franklin Zoning Board of Adjustment

August 13, 2008

PETER P. KALNAS, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF FRANKLIN ZONING BOARD OF ADJUSTMENT AND TOWNSHIP OF FRANKLIN, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, L-1280-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 29, 2008

Before Judges S.L. Reisner and LeWinn.

Plaintiff Peter P. Kalnas appeals from a November 2, 2007 order of the trial court dismissing his complaint as untimely. We affirm.

I.

These are the most pertinent facts. Plaintiff, together with Bruce and Anna Thorn, with whom he had an oral agreement to sell the property, applied to the Franklin Township Zoning Board of Adjustment (Board) for variances to build a single-family house on plaintiff's isolated undersized lot in Franklin Township, Gloucester County.*fn1 Plaintiff's property is located in an R-A Residential Agricultural zoning district, in which single family homes and a variety of non-residential uses are permitted. The variance application sought approval to build a house on .76 acres as opposed to the 1.5 acres required by the zoning ordinance, as well as frontage of sixty feet where the ordinance requires 150 feet.

On the first day of the variance hearing, on March 6, 2007, plaintiff's neighbors objected to the variance, but neighbor David Hill expressed an interest in meeting with plaintiff to discuss purchasing the property from plaintiff "at fair market value." During the hearing, the Board Chairman Harold Atkinson stated that the property owner should "do [an] appraisal for fair market value" and meet with "Mr. Hill and other neighbor[s] to see if there is interest to purchase." If there was no agreement of sale, the Board would consider the matter again "next month."

At the next hearing on April 3, 2007, Hill testified that he had spoken with plaintiff in an effort to discuss buying the property but that plaintiff "stated he promised [the property] to Thorn and he did not do fair market value [obtain an appraisal] as it would cost $300.00 to do that." Plaintiff did not deny that he had failed to obtain an appraisal as to the fair market value of the property. Instead, he responded that "Mr. Hill did not make an offer at all, if he was interested he would have come with check in hand." Hill replied that "the number was $100,000," but it is not clear from the record whether this was his offer or plaintiff's demand.

The Board denied the variance in a May 1, 2007 resolution which was published on May 10, 2007. The Board found that plaintiff had sent letters to the neighbors offering to purchase additional land sufficient to make his lot a conforming size, or offering to sell the property for fair market value. The Board found there was conflicting testimony as to whether plaintiff had actually made a good faith attempt to sell the property to adjoining owners. However, the Board did not resolve this conflicting testimony. Instead, the Board determined that plaintiff's lot was so small (about half the size required under the ordinance and with less than half the required frontage) that plaintiff could not satisfy the negative criteria in order to qualify for a variance. Hence, the Board declined to grant a variance conditioned on plaintiff giving the neighbors an opportunity to buy the property. See Nash v. Morris Twp. Bd. of Adjustment, 96 N.J. 97, 105-07 (1984); Harrington Glen, Inc. v. Municipal Bd. of Adjustment, 52 N.J. 22, 29-31 (1968).

Ninety-four days later, on August 13, 2007, plaintiff filed a two-count complaint seeking in lieu of prerogative writs review of the Board's decision pursuant to Rule 4:69-6(b)(3) and -6(c), and suing the Township for inverse condemnation contending that "[t]he denial of the variances by the Board deprives plaintiff of all reasonable use of the property and amounts to a compensable taking."

In an oral opinion issued on November 2, 2007, the trial judge granted summary judgment dismissing the complaint. She first concluded that plaintiff had not shown that the interests of justice required that the court extend plaintiff's time to file the prerogative writs action. She then concluded that the decision of the inverse condemnation case depended on the court's evaluation of the Board's action in denying the variances, and plaintiff therefore needed to file a timely challenge to the Board's decision in order to perfect the inverse condemnation claim. Since plaintiff failed to do so, the judge dismissed the inverse condemnation action.

II.

On this appeal, plaintiff contends in the alternative that the trial court should have enlarged the period of time to file the complaint in the interests of justice, and that the inverse condemnation claim was subject to a six-year limitations period and was therefore timely. Our review of a trial court's grant of summary judgment is de novo, employing the same Brill standard used by the trial judge. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, ...


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