Skip to main content



Adams v. DelMonte

309 N.J. Super. 572, 707 A.2d 1061 (App. Div. 1998)

ZONING—A zoning board decision must be appealed within the prescribed time limitations even if the applicant must still go to the planning board to get a required variance. Nonetheless, for good cause, in the interest of justice, the time in which to appeal a zoning board decision may be extended. Ordinance interpretation is a judicial function; therefore, a zoning board’s conclusions are not entitled to special deference by a court.

A municipality’s zoning board determined that a septic tank cleaning business operated from a residence qualified as a “home operation” under the zoning ordinance. Eight months later, the municipality’s planning board granted a conditional use variance. Well after expiration of the 45 day period generally applicable to appeals from zoning board actions, neighbors challenged both the zoning board’s determination and the planning board’s grant, but the trial judge concluded that the challenge to the zoning board’s decision was not timely filed and that the planning board properly granted the conditional use variance.

On appeal, the neighbors argued that the zoning board’s decision could not have been appealed until the owner of the septic tank cleaning business had exhausted all of its administrative remedies, including obtaining a conditional use permit and receiving site plan approval. The Court disagreed, stating that the exhaustion rule was intended to: (1) ensure claims are heard by the proper authority; (2) allow for administrative remedy without the need to institute a lawsuit; and (3) create a factual record for meaningful appellate review. Furthermore, the Court held that these purposes were served once the zoning board found the business to be a “home operation.” The Court disagreed with the notion that decisions are not final until site plan approval has been obtained, arguing that such a delay would be unfair to an applicant. Accordingly, once a zoning board’s decision is final, it is appealable even though site plan or conditional use approval may still be required from a planning board. Nonetheless, the Appellate Division held that although the complaint was untimely, the trial judge should have allowed the appeal under the “interest of justice” exception because the facts indicated that the business was not really a “home occupation” under the municipality’s ordinance. Specifically, new information came out during the planning board hearing concerning the presence of septic waste on the premises. Other aspects of the business also did not become apparent until the planning board hearing because the zoning board refused to conduct a full hearing, stating that the neighbors’ concerns were more properly addressed by the planning board at the time application was made for conditional use approval. The Court found it reasonable to conclude that this was the reason the neighbors failed to timely appeal. Additionally, the home business operator was not prejudiced by the delay in filing nor did he change his situation in reliance on the neighbor’s failure to timely file a complaint. Consequently, the Court held that the unique facts required enlargement of the period for review of the zoning board’s ruling.

Although factual determinations by a zoning board are presumed valid, the Court stated that ordinance interpretation is a judicial function, and that the zoning board’s conclusions are not entitled to special deference. The ordinance defines a “home occupation” as one clearly and customarily incidental and subordinate to the principal use. Since the septic tank cleaning business, including the arrival and departure of 3,000 gallon trucks containing septic waste, bore no reasonable relationship to the principal use of a residence or the types of uses traditionally recognized as home occupations, the Appellate Division reversed the lower court decision. The Appellate Division never analyzed the planning board’s actions because this case was fully resolved once the Court concluded that the zoning board erred in finding the septic tank business to be a home occupation.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com