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Bialkowski v. Borough of Ridgefield

A-6062-00T1 (N.J. Super. App. Div. 2002) (Unpublished)

BUILDING PERMITS; APPEALS— Under equitable estoppel principles, absent fraud, where a building permit is regularly issued in accordance with an ordinance, neither a municipality nor a court should revoke it upon a neighbor’s protest, so long as the decision to issue it was at least reasonably debatable, even if erroneous.

A neighbor contested the issuance of a building permit to a woman who had begun “to construct a handicap ramp and deck on her property for her mother.” Construction began without a building permit and the local official ordered that it be stopped until one was issued. Detailed plans were submitted and a permit was issued. “As constructed, the handicap deck was eighteen and three-quarter inches from the side yard property line in violation of the Borough’s side-yard setback requirements under its zoning ordinance.” However, the permit was issued because there had been a preexisting concrete platform and steps already extended to the side-yard boundary. That condition predated the relevant ordinance. The construction official relied on a part of the zoning law that permitted such construction if it did not enlarge or increase a non-conforming use or if the construction would not occupy a greater area of land than was occupied before the ordinance was passed. Another provision of the relevant ordinance permitted an existing building line to be extended if the extension did not violate any “existing front and/or rear yard depth requirements” and would not be in violation of a “four-foot side yard width restriction… .” The complaining neighbor lived around the corner and first noticed the construction about forty-five days after it had been completed. She then confronted the construction official who asserted that the construction was permissible “because the ramp and deck were for handicap access purposes.” The neighbor then complained to the Mayor and Borough Council at its regular meeting and also at a second meeting when he was told that he would receive notice from the Board of Adjustment so that he could appear and enter his objection to the construction. He did not receive such a notice and when he appeared about three months later at another Council meeting, he was told that the permit had been validly issued. Under New Jersey law, an interested party has only twenty days within which to challenge the issuance of a construction permit from the date that party becomes aware of the construction. Further, the lower court ruled that the neighbor was required to exhaust his administrative remedies. Importantly, however, the lower court held that neither the statutory time bar nor the administrative remedy bar precluded the neighbor from seeking injunctive relief. Unfortunately for the complaining neighbor, the lower court then rejected the neighbor’s injunctive claim “based on equitable estoppel, concluding that [the construction official] had acted in good faith and had issued the building permit based on an erroneous, although arguably correct, interpretation of the Borough’s zoning ordinance.” The Appellate Division upheld the lower court, first pointing out that the twenty-day limit was intended to insulate “the recipient of the building permit or other favorable disposition from the threat of unrestrained future challenge.” The neighbor’s choice to complain about the issue to the Borough Council on three different occasions did not toll the running of the twenty-day time period. Further, the neighbor was, in fact, the municipality’s former zoning official and should have known of the jurisdictional requirement. Even if the complaining neighbor was not aware of the administrative appeal process, it proved to be no excuse. According to the Court, “planning by individuals and businesses alike would be frustrated if courts failed to give predictable effect to the plain language of statutes, simply because of an error or ignorance of the law.” Lastly, the Appellate Division agreed that demands for equitable relief were not subject to either the statute of limitations time bar or the administrative relief time bar, but such an injunction could be issued where a complaining party has “sustained a special damage over and above the public injury.” Here, however, the Court believed that the complaining neighbor sustained no such special damages. His house did not adjoin or abut the property where the ramp was built. Consequently, even though abutting property owners might have sustained “special damage” as a result of the side yard setback violation, he did not. Further, according to the Court, even if the neighbor could have pursued injunctive relief, the lower court was correct when it said that “[w]here a permit is regularly issued in accordance with an ordinance, absent fraud, a municipality will be estopped from revoking it after reliance.” Here, both the Appellate Division and the lower court understood that the municipality’s ordinance was not very clear about whether the ramp qualified under the exception for side yard violations. Whatever be the case, the Appellate Division endorsed the lower court’s finding that it did not “have to decide that authoritatively because it seems to me that this presents a debatable and reasonable, albeit erroneous, if it be erroneous, interpretation.”

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