Agenda - Planning Commission - 11/01/2018

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September 10, 2018 I Volume 12 I Issue 17 Zoning Bulletin are appropriate when a use does not conform to the zoning ordinance and the property owner establishes all of the following: (1) a long period of municipal failure to enforce the law, when the municipality knew or should have known of the violation, in conjunction with some form of active acquiescence in the illegal use; (2) the landowner acted in good faith and relied innocently upon the validity of the use throughout the proceeding; (3) the landowner has made substantial expenditures in reliance upon his belief that his use was permitted; and (4) denial of the variance would impose an unnecessary hardship on the applicant." Here, the court acknowledged that the Township issued the use and oc- cupancy permit to the DiPaolos despite the fact that the inspector had observed that the deck violated the Township's floodplain regulations. However, the court noted that, on its face, the use and occupancy permit was issued for the "single family dwelling" at the Property only, and upon the inspector's 2005 inspection, the DiPaolos were notified that the deck required a permit or variance. Moreover, the court found the evidence showed that the sheds, the paved/stoned areas and the gazebo were not on the Property in 2005 when the use and occupancy permit was issued. Thus, the court concluded that the issu- ance of that permit was not an affirmative action by the Township that created vested rights for the DiPaolos. With regard to the DiPaolos claim that the Enforcement Notices were barred based on laches, estoppel or justifiable reliance because the Township failed to enforce the Code and the Zoning Ordinance, when it should have known of the violation, the Court acknowledged that the Township did not enforce the DiPaolos' deck violation for nearly 10 years. The court further acknowledged that the Township "may have allowed significant time to pass before issuing the Enforcement Notices." However, the court found that the DiPaolos failed to offer any basis for the court to rule "that ten years was an inordinate delay, or that they were prejudiced thereby." Moreover, the court stated that the "mere knowledge of a violation of a zoning ordinance does not in and of itself prove that a municipality actively acquiesced in the use of the property." Fur- ther, the court noted that the law (of estoppel) required passage of time "in conjunction with some fouu of active acquiescence in the illegal use [,]" which the DiPaolos did not prove in this case. Additionally, the court concluded that there was "no justifiable reliance" by the DiPaolos under the circumstances. The court found that "the DiPaolos clearly did not act in good faith when they purchased the Property that was lo- cated in the floodplain and, for those same ten years, . . . disregarded the Township's notice about the deck violation and continued to add unpermitted sheds, paved/stoned areas and a gazebo to the Property in open disregard to the floodplain regulations." Moreover, the court found no evidence to support the DiPaolos' claim "that they made large expenditures or were otherwise prejudiced due to their reliance on the Township's purported acquiescence." Nor, found the court "did they prove that they would suffer any hardship, let alone unnecessary hardship, if the variance [was] denied." In summary, the court found that the DiPaolos were essentially "asking that they be permitted to continue their zoning violations regardless of the public safety concerns related to the floodplain and floodway," and without their 10 ©2018 Thomson Reuters