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O’Hara v. Bernich

A-2916-07T2 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; APPEALS — A zoning board has no jurisdiction over a dispute where an appeal of an action by an administrative officer is brought more than twenty days after the date an interested party knows or should have known of the action.

A limited liability company subdivided its property into three lots. Its subcontractor applied for, and received, a zoning permit to allow construction of a single-family home on one of the lots. A neighbor inquired of the municipality’s zoning officer as to whether the front yard setback was correct. When the zoning officer affirmed that the front yard setback was correct, she appealed the determination to the zoning board. The zoning board would not hear the appeal because it was filed beyond the twenty day period permitted by statute. The neighbor appealed to the courts. In response, the property owner and zoning officer moved for dismissal.

The Law Division granted summary judgment, dismissing the neighbor’s complaint with prejudice. It ruled that the twenty day time limit for such appeals runs from the date an interested party knows or should have known of the action of an administrative officer. The purpose of the time limit is to provide a degree of assurance for reliance on the decision of the administrative officer. The lower court concluded that because more than twenty days had passed since the date that the neighbor first knew that the permits were issued, her appeal was untimely. It also found that it lacked jurisdiction to hear the matter due to the neighbor’s failure to appear before the zoning board to create a record that could be reviewed. The neighbor appealed, claiming that the court should have reviewed the matter on a de novo basis. She contended that the lower court had sufficient evidence to correctly determine the meaning and intent of the front yard setback ordinance and apply it to the current situation.

The Appellate Division affirmed, citing a prior Appellate Division decision where it had ruled that a zoning board has no jurisdiction over a dispute where the appeal is brought after the twenty day period, even if construction was in violation of the local zoning ordinance. It ruled that to permit otherwise would render nugatory the time constraint under the statute. It did agree, however, that there were earlier decisions allowing for exceptions to the strict application of the twenty-day requirement, but found that this case did not fall within any of them. In addition, there was no genuine factual issue in dispute here. According to the Court, nothing learned in discovery could alter that reality. Further, even where a permit is “utterly void,” an attack in the Law Division must be made within the forty-five-day limit set forth in the statute. Since the neighbor failed to file her action within the forty-five-day limit, the action was time barred under that statutory provision as well. It held that while the period may be extended where the interests of justice so require, applying that exception was not warranted in this case.

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