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Isko v. Board of Adjustment of the Borough of Mendham

A-3024-01T2 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; NON-CONFORMING USES; ESTOPPEL—Where a building permit is issued in error and an addition to a house built because that permit is nonconforming, a municipality can be estopped from holding the nonconformance against the owner in a later application for a variance.

One of the issues in a dispute over the grant of a variance was the status of a nine year old addition to an existing house. The original section of the house was constructed about sixty years earlier and, following the municipality’s adoption of a setback requirement, it became a non-conforming structure. Then, nine years before the variance issue arose, the owners of the property applied for and received a building permit. “While a variance was required [at that time], presumably because of the setback requirement, there [was] no record that one was ever considered or granted.” The lower court recognized that it was a mistake to allow the new section to be added without variances. On the other hand, it held that the house had “acquired the status of being a legal nonconforming use, although it [acquired] it in an unusual way.” A building permit was issued and the house was built. “Nobody objected. The zoning and construction officials did not object. ... None of the neighbors objected. No body objected.” As a result, the lower court believed that “under the principles of estoppel ... the municipality, and anybody else is estopped from [re]voking the permits, they’re estopped from knocking the house down, certainly.”

On appeal, an objecting neighbor argued that “estoppel was not raised in the Law Division and thus, was not properly before it.” The Appellate Division rejected that argument, pointing out that “Courts may sua sponte raise issues.” The neighbor also argued “that if estoppel [were] applicable, the trial judge erred in concluding that the [new] section became lawful by estoppel.” The Appellate Division disagreed, pointing out that the municipality and any other party “should be precluded from arguing against the lawfulness of the [new] section of the house because that would work an injustice to [its current owners] who relied on the lack of objections to the addition to the house nine years before they purchased it. The estoppel [arose] by silence as no one objected to the construction of the [new] section, which constituted acceptance of the addition.” Further, the Court believed that this was a “compelling circumstance in which equitable estoppel” was applicable in that it achieved the “objective of fairness to the public, who did not object to the construction of the addition and who was not effected [sic] by its existence… .”

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