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Lang v. Delaware Township

A-6820-99T1 (N.J. Super. App. Div. 2001) (Unpublished)

ZONING; RES JUDICATA—Because one cannot assume that there has been no change in circumstances affecting a property over the intervening years, an applicant for a hardship variance cannot rely on the doctrine of res judicata based upon an earlier grant of a similar hardship variance many, many years earlier.

An individual contracted to purchase an undersized lot. It also had less frontage than the existing zoning law required for development. Almost twenty years earlier, the then-owner of the lot applied for a variance to build a single-family home. The minimum lot width requirement was the same, but the minimum lot area requirement was less than the current law. At that time, the zoning board “found that the applicant planned to building a home in keeping with the neighborhood, and that relief could be granted to him without substantial detriment to the public good and without substantially impairing the intent or purpose of the zoning plan and zoning ordinance.” The then-owner never acted upon the variance and never built a house on the property. Subsequently, the municipality adopted an ordinance which provided that “any variance that has not been exercised expires after five years.” Clearly, the prior variance expired before the current contract purchaser made his variance application. The board denied the new variance application. The lower court reversed the board’s decision, essentially on the basis that the applicant was entitled to a variance on the same conditions as granted to the previous owner. The lower court apparently thought that once a prior zoning board had determined that the lot and/or its owner qualified for a hardship variance, subsequent owners of the lot would also necessarily qualify. The Appellate Division disagreed. It held that the lower court “erred in applying principles of res judicata to hold that the Board was bound by its prior finding of hardship.” Ordinarily, a variance becomes attached to the land and, “[a]bsent an express provision in the zoning ordinance or a time limitation set forth in the resolution granting the variance, it is not lost and does not expire merely because the property remains undeveloped, is placed on the market, or used more restrictively.” However, a municipality may fix a reasonable period of time within which construction must start. It may also require a new application if that time limit has expired. “While res judicata can apply to decisions of a zoning board, ..., the doctrine does not apply here to compel a hardship variance. ... [The original] hardship determination cannot fairly be said to constitute a binding determination that circumstances seventeen years later constitute undue hardship. The passage of time [suggested to the Court] that circumstances have changed.” The Appellate Division remanded the matter to the zoning board to reconsider the hardship application utilizing the factors outlined in Dallmeyer v. Lacey T.P. Bd. of Adjustment, 219 N.J. Super. 134 (Law Div. 1987).

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