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S. Development Co., Inc. v. Township of Lyndhurst Zoning Board of Adjustment

March 12, 2009

S. DEVELOPMENT CO., INC., C/O FERNANDO SEMIAO, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF LYNDHURST ZONING BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3534-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 4, 2009

Before Judges Rodríguez and Waugh.

Plaintiff S. Development Co., Inc. (SDC) appeals from the dismissal of its action in lieu of prerogative writs challenging the decision of defendant Township of Lyndhurst Zoning Board of Adjustment (Board) that a use variance with accepted site plan detail previously issued by the Board had expired. We affirm.

I.

SDC, acting through its authorized representative Fernando Semiao, contracted to purchase property located on Riverside Avenue in the Township of Lyndhurst, Bergen County. SDC proposed to tear down the structures presently located on the property and construct an eleven-unit condominium complex. The property is located in a business district and the zoning ordinances at the time prohibited the construction of residential buildings in the district.

The Board granted SDC bulk and use variances in February 2001. The Board memorialized its decision in a written resolution dated March 28, 2001. The Board found that the proposed complex was the "best use of the subject premises given its close proximit[y] to the County park. In addition, the proposed improvements [would] significantly enhance the aesthetic quality of the surrounding area." The Board resolution contained the requirement that the plaintiff comply with "all other local, county and state laws, regulations and codes," which included SDC receiving approval from the Bergen County Department of Planning and Economic Development (DPED).

SDC submitted its proposal to DPED. On May 3, 2001, DPED sent a letter to the Lyndhurst construction official requesting that he withhold the issuance of any building permits to the plaintiffs. Citing N.J.S.A. 40:27-6.7, DPED informed the construction official that he could not issue any building permits until DPED had approved the project.

On May 17, 2001, a letter was sent by DPED to SDC outlining the deficiencies in SDC's application that needed to be corrected prior to DPED reviewing the proposal. Between July 2001 and June 2003, Semiao visited DPED's office three times to ask about the pending application. He was told "the County was very busy, and you're on the agenda, and you'll soon be heard."

On June 25, 2003, SDC completed the purchase of the subject property.

On September 30, 2005, DPED issued a report on the status of SDC's application. It listed several additional requirements that needed to be met by SDC before the application would be approved. In November 2006, DPED informed SDC's counsel via letter that it had received all the necessary items for SDC's application. DPED stated "[t]he County has no objection to the issuance of permits at this time."*fn1

On November 20, 2006, SDC's application for a building permit was denied. The zoning officer took the position that SDC's variances, approved in March 2001, had expired, citing Township of Lyndhurst Ordinance § 19-2.10. That ordinance provides that a variance shall expire within one year of its issuance "unless such construction or alteration shall have been actually commenced on each and every structure permitted by the variance." The ordinance allows for a three-year expiration period if the use variance also requires a subdivision or site plan approval.

At the February 28, 2007, hearing of the Board, the zoning officer's denial of SDC's building permits was affirmed, based solely on the expiration of the variances. According to the transcript of the hearing, between the Board's approval of SDC's variances and SDC's request for permits, Lyndhurst had taken action to bar the construction of condominiums. During the ...


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