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Kopczynski v. River Lookout Associates, LLC

BER-L-5289-08 (N.J. Super. Law Div. 2009) (Unpublished)

ZONING; OBJECTIONS — The twenty day time limit within which a person may object to the issuance of building permits on the grounds that a property requires land use approval is measured from the time when the objector knew, or should have known, of the issuance of the building permit, not merely from the time that the permit was issued.

A property owner was constructing a restaurant on a bluff overlooking a waterfront but was fined for beginning the project without permits. The property owner paid the fine, obtained the necessary permits, and continued with the construction. An objector contacted the municipal board of adjustment, asserting that restaurants were a nonconforming use in the zone and that neither a variance nor a site plan approval had been obtained. At a hearing on the matter, the board dismissed the objector’s challenge of its decision to allow construction of the restaurant, it ruled the challenge was untimely since it was filed four days after the twenty-day limit measured from the time the permit for construction was issued.

On appeal, the Appellate Division pointed out that since the board did not address the objector’s substantive claims, the only matter to be determined was the timeliness of the objector’s complaint. It also pointed out that the standard for an appeal of a municipal board’s decision is measured from the time a party knew, or should have known, of the issuance of a disputed permit. Here, the Court found that the board failed to inform the objector before the hearing that his challenge to the issuance of a construction permit was untimely and that informing him at the hearing after previous communications between the parties amounted to unfair surprise and was arbitrary, capricious, and unreasonable. Thus, the Court reversed the board’s decision to dismiss the objector’s challenge to the issuance of the permits and remanded the matter to the board for a determination as to when the objector knew, or should have known, of the issuance of the permits after which point, the objector’s substantive claims were to be heard if found to be timely.

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