Dimitrov v. Carlson

• Citation: 350 A.2d 246,138 N.J.Super. 52
• Parties: Kiril DIMITROV, Individually, and Dimitrov Real Estate Corporation, a New Jersey corporation, Plaintiffs-Respondents, v. Peter H. CARLSON et al., Defendants-Appellants.
• Decision Date: 22 December 1975
• Court: New Jersey Superior Court – Appellate Division

Page 52

138 N.J.Super. 52

350 A.2d 246

Kiril DIMITROV, Individually, and Dimitrov Real Estate

Corporation, a New Jersey corporation, Plaintiffs-Respondents, v. Peter H. CARLSON et al., Defendants-Appellants.

Superior Court of New Jersey,

Appellate Division.

Submitted June 10, 1975.

Decided Dec. 22, 1975.

Charles F. Holder, Jr., Farmingdale, for defendants-appellants.

Silverman & Silverman, Lakewood, for plaintiffs-respondents (Ruben D. Silverman, Lakewood, of counsel and on the brief).

Before Judges HALPERN, CRAHAY and ACKERMAN.

PER CURIAM.

The planning board of Jackson Township appeals from the decision of the trial judge in a prerogative writ action instituted by respondents which reversed the action of the board in denying site plan approval.

The pertinent facts are as follows. In 1964 a use variance pursuant to N.J.S.A. 40:55--39(d) was granted to respondents to build 196 garden apartment units on the site in question. The variance itself provided no time limitation for exercise, nor was there any ordinance so providing. The variance imposed a number of conditions, including the requirement that the units be hooked up to sewerage facilities and not use septic tanks or cesspools. At the time garden apartments were a permitted use in certain zones of Jackson Township. In 1966 the zoning ordinance was amended so that thereafter garden apartments were not permitted in any zone. In 1967 an ordinance requiring site plan approval by the planning board was enacted which, among other things, provided that site plans shall be 'in accord with the standards of the zoning ordinance.' For a number of reasons, including lack of bank financing for the project and lack of sewerage facilities, construction had not been commenced prior to 1970. At that time the respondents first submitted application for site plan approval under the 1967 ordinance. On March 28, 1973 the planning board by formal resolution denied site plan approval on the ground that the proposed use for garden apartments was not in conformity with the township zoning regulations. The position taken by the planning board was that the variance was, in effect, withdrawn by the passage of the 1966 zoning amendment and by abandonment because of the long delay in construction.

The trial judge held that the variance was still valid and that site plan approval was not properly denied on the ground stated by the planning board. As we understand his opinion, he did so on two grounds: (1) that the variance gave respondents a vested right which could not be rescinded and could not be affected by later amending the zoning ordinance to bar the use for which the variance was originally granted, and (2) respondents had spent sufficient money and the parties had taken such action that the planning board was estopped to deny approval of the site plan because of the change in the zoning ordinance.

We do not agree with the trial judge's apparent holding that the variance vested in respondents a right which could be exercised at any time in the future and could not be affected in any way by a later zoning change adopted before the use for which the variance was granted was fully exercised. For this reason and because matters of public interest of some novelty are involved, we have spelled out the grounds for our disagreement with the trial judge.

At the outset we note the Township of Jackson is not a formal party to this litigation and normally we would remand for compliance with the rule that administrative remedies must be exhausted before resort is had to the courts. The respondents had a right of appeal to the governing body of the township. N.J.S.A. 40:55--1.19; Matawan v. Monmouth Cty. Tax Bd., 51 N.J. 291, 240 A.2d 8 (1968). Here, however, it appears that the respondents applied for a hearing before the township committee, which was denied on the ground that the committee 'did not have jurisdiction.' Moreover, the participation of the township committee and its attorney in the events prior to the denial of site approval by the planning board was such that we are satisfied that an appeal to the township committee would have been futile and illusory. In all the circumstances, we are satisfied that the interests of justice require that the normal rule of exhaustion of remedies not be applied here. See Kotlarich v. Ramsey Mayor and Council, 51 N.J.Super. 520, 539--540, 144 A.2d 279 (App.Div.1958).

It is undeniable that the general rule applicable in this State, consistent with that in other neighboring jurisdictions, is that a use variance does not expire and is not lost simply by reason of the passage of time and non-exercise, absent an express time limitation set forth in the variance itself or in the zoning ordinance. Fort Lee Bd. of Ed. v. Fort Lee Mayor, etc., 31 N.J.Super. 22, 29, 105 A.2d 899 (App.Div.1954); Ramsey Associates, Inc. v. Bernardsville Bd. of Adjust., 119 N.J.Super. 131, 290 A.2d 448 (App.Div.1972); cf. North Plainfield v. Perone, 54 N.J.Super. 1, 12--13, 148 A.2d 50 (App.Div.1959), cert. den. 29 N.J. 507, 150 A.2d 292 (1959); see Grimley v. Ridgewood, 45 N.J.Super. 574, 580, 133 A.2d 649 (App.Div.1957), cert. den. 25 N.J. 102, 135 A.2d 59 (1957). The general rationale for such rule is that set forth in 2 Rathkopf, The Law of Zoning and Planning, 46--1 to 4 (1956), which points out that when a variance is granted the use permitted thereby becomes a conforming use and is in the nature of a vested right. The author states:

A use variance when granted is permanent under the law and conveys use rights which enure to the benefit of the property involved. When a variance or special exception is granted the use permitted thereby becomes a conforming use and such use is not lost through non-exercise, in the absence of a time limitation set forth in the variance itself or in the zoning ordinance. (at 46--1, 2)

With respect to the absence of an imposed time limitation, this court dealt with the matter in Fort Lee Bd. of Ed. v. Fort Lee Mayor, etc., supra. There, after referring to the provision in N.J.S.A. 40:55--39(d) that once a use variance is approved the administrative officer in charge of granting permits shall 'forthwith issue a permit for such structure or use,' we ruled:

Under this language it would appear that application for and issuance of the building permit should be expeditiously undertaken; that it is doubtful whether a delay of several years in the application for and issuance of the permit was intended. However, we find no legislative or judicial expression limiting the time within which a building permit may be issued following the grant of a variance and we deem that matter is one to be settled by the Legislature rather than the Judiciary. (31 N.J.Super. at 29, 105 A.2d at 903)

In Ramsey Assoc. v. Bernardsville Bd. of Adjust., supra, we upheld the validity of an ordinance imposing a time limitation within which construction authorized by a variance must commence. In so doing we carefully reaffirmed the ruling in the Fort Lee case, saying:

Board of Education, Fort Lee v. Mayor, etc., Fort Lee, 31 N.J.Super. 22, 29, 105 A.2d 899, 903 (App.Div.1954), on which plaintiff relies, is not to be contrary. In Fort Lee, supra, the ordinance did not contain a limitation of time 'within which a building permit may be issued following the grant of a variance.' The decision in that case was but an application of the rule stated in 2 Rathkopf, Zoning and Planning (3 ed. 1966), c. 46 at 46--1 Et seq:

When a variance or special exception is granted the use permitted thereby becomes a conforming use and such use is not lost through non-exercise, In the absence of a time limitation set forth in the variance itself or in the zoning ordinance. (119 N.J.Super. at 133, 290 A.2d at 449; emphasis added).

In Industrial Lessors, Inc. v. Garfield, 119 N.J.Super. 181, 290 A.2d 737 (App.Div.1972), cert. den. 61 N.J. 160, 293 A.2d 290 (1972), we held that a use pursuant to a variance granted under our statutory scheme is far different from a nonconforming use and that, although an ordinance could properly provide that a building permit should not issue to rebuild a nonconforming building destroyed by fire, such ordinance could not similarly forbid rebuilding a building which was a permitted use by virtue of variance. We said:

A variance, however, is an official quasi-legislative, quasi-judicial determination that the use or structure allowed is not offensive to the ordinance in the broad context of the particular circumstances which, under the statutory criteria specified by N.J.S.A. 40:55--39, have authorized the grant. In essence, the use or structure allowed becomes a conforming use. 2 Rathkopf, The Law of Planning and Zoning (3d ed. 1972), 46--1. Although a variance can perhaps be lost by abandonment, see North Plainfield v. Perone, 54 N.J.Super. 1, 12--13, 148 A.2d 50 (App.Div.1959) cert. den. 29 N.J. 507, 150 A.2d 292 (1959) it otherwise partakes to a large degree of the characteristics of a vested right running with the land. 2 Rathkopf, op. cit.

Since the foregoing characteristics of a variance structure or use flow from the intention implicit in the statutory scheme, any impairment thereof by municipal ordinance is invalid as conflicting with the statute. (119 N.J.Super. at 183, 290 A.2d at 738)

See also, Walle v. So. Brunswick Tp. Bd. of Adj., 124 N.J.Super. 244 (App.Div.1973).

It is also well settled that normally a governing body may not reopen a variance, once granted, and rescind the same. See Morton v. Clark Tp. Mayor and Council, 102 N.J.Super. 84, 245 A.2d 377 (Law Div.1968), aff'd 108 N.J.Super....