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Amato v. Borough of Avon Planning Board

A-3882-02T2 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; APPEALS—A letter from a zoning official stating that an application is “denied at this time” is only a conditional denial and the twenty day period for appealing denials does not begin to run based on such a letter.

A property owner applied for a “zoning approval and building permit” to build a single family home on his property. The municipality’s building and code official told the owner that, upon the advice of the local planning board, the application was “denied at [that] time” because the planning board would have to see if a designated ten-foot driveway would provide adequate access to the property. The owner found no provision in the zoning ordinance that regulated the driveway access, and requested the board to reconsider because no variances were required and there was no problem accessing the property.

The owner met with the building and code official numerous additional times, and each time the owner was informed that his application was “still being looked into.” Finally, after pressing for a final decision, the official responded that he would not grant the permit and that “it was not his call.” In response, the owner filed an appeal.

N.J.S.A. 40:55D-72a provides that appeals must be filed within twenty days. This led to a question as to whether the original denial by the official triggered the start of the twenty-day period. The lower court ruled that the time to appeal had expired because the twenty days did, in fact, start to run after the first denial. The Appellate Court disagreed because the earlier denial was simply an interim response to the owner’s request for a building permit. Specifically, the response promised further consideration. The Court noted that the phrase “denied at this time” stated only a conditional denial, implying further consideration of the driveway access. Accordingly, the permit was officially denied at the final meeting between the owner and the official.

The Appellate Division felt that the lower court had placed too much emphasis on the word “denied” in the first letter from the building and code official. Had the sentence in the letter with “denied” been removed, only the sentence requiring additional information would have remained, and there would have been no question that the twenty day time for an appeal did not start to run. According to the Court, the lower court should not have elevated form above substance.

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