- On November 12, 2018
Zoning Permits And An Applicants Right To Relief
In most New Jersey municipalities a zoning permit is required before a building permit may issue. It is the responsibility of our zoning officers to determine if the proposed construction conforms to the zoning ordinance. If it does, a permit is issued and the applicant proceeds to the building department. If the zoning officer determines that a variance is necessary the applicant has three alternatives. First, the applicant could submit a variance application. N.J.S.A. 40:55D-70(c) Second the Applicant could file an appeal of the zoning officer’s denial. N.J.S.A. 40:55D-70(a) Finally, the applicant could request an interpretation of the ordinance.N.J.S.A. 40:55D-70(b) Occasionally applicants seek more than one of these choices simultaneously.
The applicant can file for a variance or interpretation at any time; but only has 20 days to file an appeal of the zoning officer’s decision in accordance with N.J.S.A. 40:55D-72.
Neighbors Right To Relief When A Permit Is Issued
If a zoning officer receives a request for a permit and grants it normally the first notice a next–door neighbor receives will be when construction begins. If the neighbor is away from home it might not be discovered until after it is constructed. But in most instances a neighbor should be able to intervene.
For years it was speculated that the same 20–day time period to appeal the zoning officer’s decision applied to non-applicants in accordance with N.J.S.A. 40:55D-72 and that the time period ran from the time of discovery.
In Harz v. Borough of Spring Lake, 234 N.J. 317 (2018) the New Jersey Supreme Court recently confirmed this view, ruling that an interested party (which includes a neighbor) has 20 days from the time they discover the issuance of the permit. Quite often this will occur when the building, fence or structure is erected. But it could take longer, say for instance the neighbor is away on business or a vacation. The court commented: “courts have taken the sensible position that ‘the time for appeal begins to run from the date an interested person knew or should have known of the permit’s issuance’” Id. at 321 In other areas of law this is often referred to as the “time of Discovery Rule.”
The important thing to keep in mind is that you can’t sleep on your rights. If you find that a permit has been issued that needed variance relief you have just 20 days to file an appeal of the zoning officer’s decision. If you go beyond 20 days you will have to explain what caused your delay. If you have a good reason you should be OK. Remember the law always favors the vigilant.
Dennis M. Galvin is a partner in the firm’s Municipal and Real Estate and Land Use Departments. A recognized leader in the fields of land use and local government law, he served as Chair of the Local Government Section of the New Jersey State Bar Association during 2011 and 2012, and served as First Vice Chair during 2009 and 2010. Currently, he serves as an Assistant Counsel to the New Jersey Planning Officials.