March 12, 2009
S. DEVELOPMENT CO., INC., C/O FERNANDO SEMIAO, PLAINTIFF-APPELLANT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 hearing, the chairperson of the Board stated: "Condominiums have been ordinanced out in Lyndhurst."
SDC filed a complaint in lieu of prerogative writs in the Law Division on May 11, 2007. A hearing was held on the matter on October 26, 2007. The trial judge agreed with the Board and issued a written opinion finding in the Board's favor. The trial court found that the Board's conclusion and ultimate decision was not arbitrary, capricious or unreasonable. Notwithstanding Plaintiff's contention that Ordinance  § 19-2.10 is inapplicable, this Court finds that the Board reasonably interpreted the ordinance and advised Plaintiff that the subject approvals had expired. As Plaintiff neither applied for an extension of time to preserve the approvals nor presented any evidence that the township ordinance is inapplicable, this Court will not disturb the decision of the Zoning Board.
Final judgment was entered on January 9, 2008. This appeal followed.
We start with the standard of review. Our role in reviewing zoning decisions is ordinarily limited because "a Board of Adjustment's exercise of its discretionary authority based on its factual determinations will not be overturned unless arbitrary, capricious or unreasonable." Wilson v. Brick Twp. Zoning Bd. of Adjustment, ___ N.J. Super. ___, ___ (App. Div. 2009) (slip op. at 8) (citing Wyzykowski v. Rizas, 132 N.J. 509, 518-520 (1993)). However, "legal determinations are not entitled to a presumption of validity and are subject to de novo review." Ibid.
A board of adjustment's interpretation of a zoning ordinance is primarily a question of law. Wyzykowski, supra, 132 N.J. at 518. "Although a municipality's informal interpretation of an ordinance is entitled to deference, that deference is not limitless. As with other legislative provisions, the meaning of an ordinance's language is a question of law that we review de novo." Bubis v. Kassin, 184 N.J. 612, 627 (2005) (citations omitted).
Ordinance § 19-2.10 provides that a variance will generally expire in one year unless such permitted use has actually been commenced within one year from the date of entry of the judgment or determination of the board of adjustment; except, however, in the case of a use variance which also involves a subdivision or site plan approval of the variance shall extend for the full period of preliminary approval, i.e. three years; and except however, that the running of the period of limitation herein provided shall be tolled from the date of filing an appeal from the decision of the board of adjustment to the governing body, or to a court of competent jurisdiction until the termination in any manner of such appeal or proceeding.
The three-year period is applicable in this case.
Such a limitation on the validity of a variance is permissible. D.L. Real Estate Holdings, L.L.C. v. Point Pleasant Beach Planning Bd., 176 N.J. 126, 133 (2003) ("Ordinances that impose a time limit on the validity of a variance also have been upheld notwithstanding that the [Municipal Land Use Law] does not grant expressly that authority."). Although SDC argues that the ordinance is invalid because it provides no mechanism for an extension of the time limit, it cites no cases that support its argument.
SDC argues that the time period set forth in Ordinance § 19-2.10 was tolled pursuant to N.J.S.A. 40:55D-21 because of DPED's letter to Lyndhurst requesting that no building permit be issued and the provisions of N.J.S.A. 40:27-6.7, which require deferral of the issuance of a building permit pending county review of a project. We disagree.
N.J.S.A. 40:55D-21 provides, in pertinent part, as follows:
In the event that, during the period of approval heretofore or hereafter granted to an application for development, the developer is barred or prevented, directly or indirectly, from proceeding with the development otherwise permitted under such approval by . . . a directive or order issued by any State agency, political subdivision or court of competent jurisdiction to protect the public health or welfare and the developer is otherwise ready, willing and able to proceed with said development, the running of the period of approval under this act or under any act repealed by this act, as the case may be, shall be suspended for the period of time said legal action is pending or such directive or order is in effect.
That provision, however, is not applicable here. In Jordan Developers, Inc. v. Planning Board of City of Brigantine, 256 N.J. Super. 676, 680-81 (App. Div. 1992), we held:
The provision is not designed to deal with situations that are common in land planning contexts in which a single development is subject to approval processes in different agencies, such as a local board, a county planning board, and [the Department of Environmental Protection], and cannot proceed until all approvals are granted. Thus, if an application for development must pass review by those three agencies, the tolling provisions of N.J.S.A. 40:55D-21 do not apply to suspend the running of the protected period following the local board's approval while the developer pursues the approvals of other agencies. There must be a "legal action instituted" or a "directive or order issued by a state agency, political subdivision or court." A general regulatory prohibition against development, applicable to all properties, without required permits is not a legal action or a directive or an order for the purposes of this statute.
N.J.S.A. 40:27-6.7 does, as SDC argues, require the deferral of a building permit pending county review. However, it provides that the county must complete its review within thirty days unless the time is extended for an additional thirty days with the consent of the municipality. The Supreme Court held in Amerada Hess Corp. v. Burlington County Planning Board, 195 N.J. 616, 640 (2008), that:
The County Board was entitled to seek information and revisions from [the applicant] after the application was deemed complete, but was still required to act within the statutory timetable. If the materials were not forthcoming, the application could have been granted without them or denied for lack of them. What was not an option was doing nothing. That is what occurred here.
DPED made its initial contact with SDC in May 2001, requesting revisions to their application and additional information. While the first communication was within the statutorily allowed timeframe, a subsequent report on SDC's application to DPED was not issued until September 2005. Once the time limit of N.J.S.A. 40:27-6.7 had been exceeded, SDC should have sought a declaration that the application was deemed approved. See Amerada, supra, 195 N.J. at 637 ("Where a board fails to act within the statutory limits, even for what it considers 'good' reasons, the statute is violated and automatic approval comes into play. Only where the board establishes that its delay was inadvertent or unintentional can its conduct be excused."). However, SDC failed to avail itself of that remedy.
We acknowledge that SDC acquired the subject property and took action to procure DPED approval in reliance on the variances and approvals granted by the Board in March 2001. However, it does not point to any act by Lyndhurst during the three-year period following the grant of the approvals that would support an equitable estoppel. See Middletown Twp. Policeman's Benevolent Ass'n Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 367-68 (2000). SDC knew, or should have known, that the approvals would expire after three years and that it had the right to seek an automatic approval with respect to its DPED application sixty days after its application was completed. Although the Legislature has enacted certain tolling provisions, such as N.J.S.A. 40:55D-21 discussed above, they do not provide for tolling in the situation before us, as we held in Jordan Developers.*fn2 Consequently, there is no legal or equitable basis to compel the Board to extend the variances.
Consequently, we conclude that the Board correctly found that the variances and other approvals granted to SDC in 2001 had expired by the time SDC sought building permits in 2006, over five years later.