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KLD Properties, LLC v. Abballe

BER-L-13591-04 (N.J. Super. Law Div. 2005) (Unpublished)

ZONING; USE VARIANCES—A municipal zoning board of adjustment has no greater power than that set forth by state and local statute.

A company owned property zoned for commercial use. It applied to the municipal zoning board of adjustment for a use variance to construct three residential apartments. The company also applied for dimensional variances for a deficient front yard setback and for undersized parking spaces. The board conducted several public meetings at which no objection was made to the company’s applications. The board of adjustment granted the variances, which by local ordinance were only effective for one year. The company then applied to the county planning board for site plan approval. In the meantime, one year after the variances were granted, the company applied to the zoning board for several extensions of its variance approvals. The board granted each extension. Almost two years after the initial variances were issued, the company received site plan approval from the county planning board. The company submitted its plans to the municipality’s zoning officer for a building permit. The zoning officer refused to issue the permit on grounds that the variances were ineffective because they expired one year after they were issued. The company appealed the officer’s decision to the board of adjustment challenging the officer’s inaction. The board ruled in favor of the company and directed the zoning officer to issue the building permit. The zoning officer once again refused to issue the permit and the company filed a complaint in lieu of prerogative writs against the zoning officer. The company argued that the board of adjustment had the authority to extend its variance approvals and that the zoning officer was required to follow the orders of the board.

The Court ruled in favor of the zoning officer. In reaching its decision, the Court examined the statutory duties of a municipal board of adjustment. It ruled that the actions of a board of adjustment are limited to the express powers granted to the board by statute. It held that neither the New Jersey Municipal Land Use Law nor the municipal zoning ordinance expressly granted the board the power to extend its variance approvals. In the absence of express authority, the power to extend variance approvals would have to be implied from statute in order for the board’s actions to be effective. The Court held that the power to extend variance approvals could not be implied from the state or local statute and therefore, the board’s variance extensions were ineffective. It further ruled that the zoning officer was not obligated to follow the orders of the board because the board exceeded its authority in granting the variance extensions.

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