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Irwin v. Township of Neptune

A-3034-96T1 (N.J. Super. App. Div. 1997) (Unpublished)

MUNICIPALITIES; ZONING; BUILDING PERMITS—Even though a construction permit was issued and the developer commenced conversion of an abandoned hotel into an apartment building, it could be retracted when the initial grant of the construction permit was without legal authority.

A developer wanted to turn an abandoned hotel into an apartment building. Although the property was located in a historic-commercial district, the use of the property as a hotel was authorized by the Township as a legal, non-conforming conditional use in that zone. The planner for the Township of Neptune determined that the apartment building qualified as a continuation of that use. However, some months later the Township sought to withdraw the construction permit and issued a stop work order until the developer applied for a new permit and a use variance. The developer filed suit. The Law Division vacated the stop work order issued by the Township on estoppel grounds, finding that the owner had been granted all necessary approvals for construction by the Township. The Appellate Division reversed.

The Appellate Division stated that estoppel cannot be the basis for relief when municipal action is taken without legal authority. In this case, there was no legal authority because an apartment building was not permitted in the historic commercial district. The Supreme Court of New Jersey has ruled that continuance of a non-conforming use is permitted only if it is substantially the same kind of use that is being continued. The Appellate Court refused to believe it was realistically possible for the developer to meet the statutory definition of “hotel,” and therefore found that the use of the property as an apartment building could not be deemed a continuation of the hotel’s non-conforming use. As further support for its holding, the Court cited a provision of the Township code which states that once physical operation of a non-conforming use ceases for more than 6 months, that use cannot be reestablished without a new application for a use variance and that the hotel had been abandoned for more than that time.


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