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Independent Realty Company v. Township of North Bergen

376 N.J. Super. 295, 870 A.2d 637 (App. Div. 2005)

ZONING; DECLARATORY JUDGMENT —Under the New Jersey Declaratory Act , a court cannot issue a zoning ruling without the applicant first experiencing an adverse ruling from a land use board.

A developer owned raw property on which it sought to build a residential building. It applied to the municipality’s board of adjustment for site plan approval and variances, which were granted. In order to begin construction, the developer was required to apply to the municipal construction official for a construction permit. It never applied and never commenced any action to develop the property. Ten years later, the area in which the property was located was rezoned. The new zone permitted the same residential uses as the prior zone, and therefore did not effect the developer’s use of the property. It filed a declaratory action seeking a determination that the prior site plan and variance approvals remained in effect in light of the area being rezoned. The lower court dismissed the action on the basis that the developer had failed to present a justiciable controversy or exhaust its administrative remedies. The developer appealed.

The Appellate Division affirmed the lower court’s ruling. It discussed the New Jersey Declaratory Judgment Act which grants courts the power to issue declaratory judgments under certain circumstances. Under the Act, a court may not issue a declaratory judgment in the absence of an actual controversy. The Court found that there was no justiciable controversy in the matter because the municipality had not disputed the site plan and variance approvals previously issued. It also pointed out that the developer had not yet attempted to develop the property or apply for a construction permit. The Court ruled that the developer was first required to exhaust its administrative remedies and upheld the dismissal of the action.

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