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Whala v. Town of Kearny

A-3841-04T5 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; EQUITABLE ESTOPPEL—Where a subcode official acts in good faith and a property owner relies on the subcode official’s decision, the doctrine of equitable estoppel may bar issuance of an injunction sought by a neighbor to stop construction work.

A property owner obtained a building permit and redesigned the interior of its building. One of the tenants in this building operated a pizzeria. Another pizzeria on the same street filed an order to show cause to enjoin the municipality from issuing a certificate of occupancy to the first pizzeria, alleging that the building permit was improperly obtained because the property owner never got site plan approval. The lower court denied the request for an injunction and granted the property owner’s motion for summary judgment. The second pizzeria appealed the denial of its injunction, and the property owner appealed the denial of its request for attorneys fees.

The second pizzeria claimed the lower court prematurely granted summary judgment and claimed that the alleged violation of the municipal land use ordinance was sufficient to defeat the property owner’s motion for summary judgment. The municipality’s subcode official certified that site plan approval was not required because the size of the building was not changed, the interior changes were only reconfigurations of partitions, and the footprint of the building had not been changed. The municipality’s ordinance provided an exemption from site plan approval for minor repairs to the interior of a building not involving structural changes or enlargement of the building’s footprint. The lower court found the subcode official acted in good faith and that the property owner relied on the subcode official’s decision. According to the lower court, even if the subcode official misinterpreted the ordinance, the doctrine of equitable estoppel would bar the injunction sought. The Appellate Division affirmed the lower court’s denial of the pizzeria’s request for an injunction.


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