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Bray v. Cape May City Zoning Board of Adjustment

378 N.J. Super. 160, 875 A.2d 254 (App. Div. 2005)

ZONING; ESTOPPEL — Under the doctrine of judicial estoppel, a person cannot successfully obtain site plan approval for a specific use of a property, and later apply for a use variance based on another use.

A husband and wife owned property that contained an historic building. The couple applied to the municipal planning board for site plan approval to use the building as a guest house. The proposed guest home was to consist of twenty-three guestrooms, and part of the home would be used as the owner’s living quarters. Guest homes were permitted under the applicable zoning ordinance, but hotels were not. The couple repeatedly assured the board that the building would only be used as a guest home and not as a hotel, and based on this representation, the board granted the couple’s application. Shortly thereafter the couple applied to the municipal planning board for approval of revisions to their site plan. The couple sought to revise the plan in order to add a kitchen to the basement. The kitchen would be used by the couple to serve their guests breakfast and lunch. The planning board approved the revised site plan. The couple then wanted to open their dining facilities to the public as a restaurant. Instead of applying for a use variance, the couple requested that the municipal solicitor issue an opinion stating that a use variance was not required because the couple’s business was a hotel, and a restaurant is an accessory use to a hotel. The opinion request was referred to the municipal planning and zoning boards, both of whom rejected the couple’s assertion that the facility was a hotel. The municipal zoning officer advised the couple that they were required to obtain a use variance to operate a restaurant. The couple appealed the officer’s decision to the zoning board. The zoning board concluded that the couple could not operate a restaurant on the premises without obtaining a use variance, and the couple filed a complaint in lieu of prerogative writs challenging the board’s decision.

The Court affirmed the zoning board’s determination based on the doctrine of judicial estoppel. Judicial estoppel bars a party who has successfully asserted a position before a court or other tribunal from asserting an inconsistent position in the same or subsequent proceeding. The court held that although the doctrine is often applied in judicial proceedings, it is also applicable in administrative proceeding such as in the present case. It ruled that the couple was barred from asserting that their facility was a hotel for purposes of operating a restaurant because the they had already successfully asserted that it was a guest house to obtain site plan approval. It further ruled that the couple was estopped from contending that the building was a hotel because such use would be impermissible under the local zoning ordinance. As a result, the Court affirmed the zoning board’s decision that the facility was not a hotel which required the couple to apply for a use variance to operate a restaurant on the property.


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