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Kalnas v. Township of Franklin Zoning Board of Adjustment

A-1690-07T2 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; APPEALS — To get a court to relax the 45 day deadline for an appeal of a zoning decision, a party must show a special equitable or public interest basis for an extension because a municipality and a successful party in a land use board proceeding are entitled to repose.

A landowner applied to the zoning board for variances to build a single-family house on an isolated undersized lot, where the frontage would be half of what was required by ordinance. When neighbors objected to the application, the zoning board suggested that the applicant obtain an appraisal of the land and see if there was any purchase interest in the property. At the next meeting, the board denied the variances, stating that there was no clear evidence the landowner made a good faith attempt to sell the property to adjoining owners. The board rested its decision, however, on the undersized nature of the lot not being able to satisfy the negative criteria in order to qualify for a variance. Ninety-four days later, the landowner sued, seeking review of the board’s denial. The lower court dismissed the complaint as out of time, and found no evidence that the interests of justice required a relaxation of the rule. The landowner appealed.

The Appellate Division affirmed, finding the lower court did not abuse its discretion in declining to extend the time to file the action. It found that the action was filed two months out of time, and the case presented no special equitable or public interest basis for an extension. The Court held that both the municipality and the objecting neighbors were entitled to the repose intended by the forty-five day appeal rule. It noted the landowner’s undisputed failure to obtain an appraisal so as to give neighbors a fair basis by which to negotiate purchase of the property. The Court emphasized, however, that the landowner was not precluded from filing a variance application in the future seeking to develop the land, either for residential use or one of other uses permitted by the applicable zoning ordinance.

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