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Cole v. City of Pleasantville

A-3388-96T3 (N.J. Super. App. Div. 1998) (Unpublished)

ZONING; PERMITS—Even though a homeowner waited too long to challenge the issuance of permits, it may still seek relief founded on a claim that a neighbor’s conduct is not within the ambit of its permits or violates the zoning ordinance.

Residential property owned by a homeowner was located along the boundary of a single-family residential zone. A business located across the street from the homeowner’s property was operated within a commercial zone. The municipality’s zoning ordinances provided that there be a buffer area or transition area on land that separates commercial districts or uses from adjoining residential districts or uses. No driveways, parking, or other use of the land is permitted within such a buffer area.

Pursuant to certain municipal approvals, the business owner made repeated use of a driveway facing the residential district and failed to place required landscaping or other buffer amenities along the boundary line of the commercial property. When the homeowner appeared before the lower court, the judge held that she was barred from relief because she had waited too long to assert her cause of action against the municipality and the business owner. In the view of the lower court, the business owner had come reasonably to rely upon the validity of the municipal approvals which had issued.

The Appellate Division thought differently. While it agreed with the lower court that the homeowner had waited too long to complain about the issuance of municipal permits, the homeowner had raised a genuine issue of material fact as to whether some of the activities in which the business had engaged or which it continued to pursue were, in fact, unauthorized and were not permitted by the zoning ordinance. Consequently, to the extent that the business owner’s land use conduct was not fairly within the ambit of its permits or violated the zoning ordnance, the homeowner was entitled to an opportunity to demonstrate that the particular business activities could be enjoined because they were not permissible in the commercial zone, violated other provisions of the zoning ordinances, or constituted a nuisance. As a result, the matter was remanded to the lower court for resolution of the factual issues.


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