                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0662-17T3

BELMONT CAR WASH, LLC,

          Plaintiff-Appellant,

v.

PLANNING AND ZONING
BOARD OF THE BOROUGH
OF HALEDON,

     Defendant-Respondent.
_____________________________

                    Submitted February 5, 2019 – Decided March 29, 2019

                    Before Judges Gilson and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Docket No. L-2247-16.

                    De Marco & De Marco, attorneys for appellant
                    (Michael P. De Marco, on the briefs).

                    Fontanella, Benevento, Galluccio & Smith, attorneys
                    for respondent (Anthony Benevento, on the brief).

PER CURIAM
      Plaintiff Belmont Car Wash, LLC (Belmont) appeals from an April 11,

2017 order entered after a bench trial denying the relief requested in its

complaint in lieu of prerogative writs. The complaint sought to overturn the

denial of its application to the Planning and Zoning Board of the Borough of

Haledon (the Board) for a certificate of compliance and occupancy to be given

to a new owner in connection with the sale of the business. Belmont argues that

its current owner and several previous owners were all granted certificates of

compliance and occupancy and, therefore, the Board is estopped from denying

the certificate to the proposed new owner. The trial court rejected that argument.

We agree with the trial court and affirm.

                                        I.

      Belmont is a car wash business located at 450 Belmont Avenue in

Haledon. Rajni Thiara currently owns Belmont. Belmont does not own the

actual property; rather, Joseph Killion owns the property.

      In February 1994, Pedro Lopez sought and obtained a resolution from the

Board allowing him to operate a car wash at the location. The 1994 resolution

granted Lopez use, bulk, and parking variances subject to certain conditions.

Lopez owned an Exxon station located approximately one block from the

proposed car wash and the conditions included the requirement that cars be


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                                        2
parked at the Exxon station and that all business transactions be conducted at

the Exxon station.

      In that regard, the 1994 resolution granted the variances subject to eleven

conditions, including:

      (a)   all work, including cleaning and detailing of cars, was to be done

inside the building;

      (b)   cars waiting to be cleaned were not to be parked on the street; rather,

they were to be parked at the Exxon station;

      (c)   all employee cars were also to be parked at the Exxon station; and

      (d)   all business transactions, except for the washing and detailing of

cars, were to be done at the Exxon station.

      In 2005, Lopez sold Belmont to Mark Walker. Walker only purchased the

car wash and not the Exxon station. At the time of the purchase, Walker applied

for and was granted a certificate of occupancy by the Borough's code

enforcement officer. Thereafter, Belmont was sold three times, including twice

in 2008 and once in 2011. Each time, the new owner applied for and was issued

a certificate of occupancy. The certificate of occupancy granted in 2011 was

given to Belmont's current owner.




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                                        3
      In 2015, Belmont made application for a certificate of compliance and

occupancy in connection with the proposed sale of the car wash business to a

third-party purchaser.   The Borough's zoning official and attorney advised

Belmont that a certificate of occupancy would not be granted unless the business

came into compliance with the 1994 variance.       Accordingly, Belmont was

directed to apply to the Board.

      Belmont made the application to the Board for a certificate of compliance

and occupancy. A public hearing concerning that application was held on April

7, 2016. At the hearing, Belmont, through its attorney, argued that the Board

was estopped from denying the certificate to the proposed new owner because

the Borough had not enforced the conditions of the 1994 variance for over

twenty years. The Board rejected that argument and, on May 5, 2016, the Board

adopted a resolution denying Belmont's application. The resolution noted that

Belmont had been advised in February 2015 that the 1994 variance was the only

authority giving Belmont the right to operate the car wash business and if

Belmont sought modifications from the conditions of the 1994 variance, it would

have to obtain those modifications from the Board. The Board then noted that

granting modifications from those conditions did not advance the purpose of the




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                                       4
Borough's land use laws and zoning ordinances. Therefore, the Board denied

the application.

      On June 20, 2016, Belmont filed a complaint against the Board asserting

two counts. First, it sought an action in lieu of prerogative writs to compel the

Board to grant the certificate. Second, it alleged that the Board had denied its

application in violation of the Open Public Meetings Act (OPMA), N.J.S.A.

10:4-6 to -21. The Board filed an answer and, thereafter, the parties agreed to

initially have the court address Belmont's claim for an action in lieu of

prerogative writs.

      The trial court received submissions and held a bench trial on that issue.

On April 11, 2017, the trial court found in favor of defendants and thereby

refused to overturn the Board's resolution denying Belmont's application. The

court explained its decision on the record and in a written opinion.

      Before the trial court, Belmont focused its arguments on the contention

that the Board was estopped from denying the certificate to a new owner. The

trial court determined that the Board was estopped from seeking to prevent the

current owner from operating the car wash business. The court also determined,

however, that the Board was not estopped from denying the application to issue

a certificate that would allow the car wash to be operated by a new owner.


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      In August 2017, the parties entered into a stipulation dismissing the

remaining count of Belmont's complaint, which had alleged a violation of

OPMA.1 Belmont now appeals the order issued on April 11, 2017, denying the

relief it sought in the count asserting a complaint in lieu of prerogative writs.

                                        II.

      On appeal, Belmont makes one argument: the Board was estopped from

refusing to issue a certificate of compliance and occupancy to the purchaser of

its business. Specifically, Belmont contends that by issuing certificates to its

current owner and three prior owners without enforcing the conditions of the

1994 variance, equity compels the Board to issue a certificate to the new

purchaser of Belmont. We disagree.

      A zoning "board's decisions enjoy a presumption of validity, and a court

may not substitute its judgment for that of the board unless there has been a clear

abuse of discretion." Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (citing

Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002)).

Accordingly, "courts ordinarily should not disturb the discretionary decisions of

local boards that are supported by substantial evidence in the record and reflect


1
   The stipulation actually refers to count one of the complaint being dismissed.
Nevertheless, both parties acknowledged that count one was dismissed by the
trial court and count two of the complaint was dismissed by stipulation.
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                                         6
a correct application of the relevant principles of land use law." Lang v. Zoning

Bd. of Adjustment, 160 N.J. 41, 58-59 (1999).

      Under the doctrine of estoppel, an entity "may, by voluntary conduct, be

precluded from taking a course of action that would work injustice and wrong

to one who with good reason and in good faith has relied upon such conduct."

Welsh v. Bd. of Trs., Police & Firemen's Ret. Sys., 443 N.J. Super. 367, 376

(App. Div. 2016) (quoting Middletown Twp. Policemen's Benevolent Ass'n

Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 367 (2000)). Estoppel,

however, is invoked against municipalities sparingly, and only in compelling

circumstances, "where the interests of justice, morality and common fairness

clearly dictate that course." Motley v. Borough of Seaside Park Zoning Bd. of

Adjustment, 430 N.J. Super. 132, 152 (App. Div. 2013) (quoting Gruber v.

Mayor of Raritan, 39 N.J. 1, 13 (1962)).

      Here, Belmont argues that its current owner relied on the fact that he and

several other prior owners were granted certificates of occupancy to operate the

car wash without complying with the conditions of the 1994 variance. Thus, he

contends that the refusal to issue a certificate to the new purchaser would

effectively result in compelling him to continue to operate the business without

the prospect of being able to sell it. Moreover, he asserts that this inequity is


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                                       7
exacerbated because the car wash business and the Exxon station are no longer

under common ownership and, therefore, he cannot comply with the conditions

of the 1994 variance.

      The trial court reasoned that although the Board and Borough had not

enforced the conditions for over twenty years, the lack of enforcement did not

act as a permanent estoppel. In support of that position, the trial court noted that

the Borough had submitted evidence that representatives of the Borough had

written to prior owners of Belmont, and to its current owner, pointing out that

the car wash was not in compliance with the conditions of the 1994 variance.

While there is nothing in the record to indicate that the Board or Borough took

any enforcement actions, that correspondence indicated that the Board and

Borough were not waiving compliance with the conditions of the 1994 variance.

      Moreover, there is nothing in the certificates granted to the current owner

or any of the three prior owners of Belmont stating that the Board was waiving

the conditions of the 1994 variance. In that regard, all four of the certificates of

occupancy issued in 2005, 2008, and 2011 simply give the owner of Belmont

the right to operate a car wash.       None of those certificates state that the

conditions of the 1994 variance were being waived. Accordingly, we agree with




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                                         8
the trial court that the doctrine of estoppel does not apply to compel the B oard

to issue a new certificate of occupancy to a new owner.

      We note that this case does not involve the Board or a zoning

representative acting without authority. Belmont and the Board did not contend

that the Board did not originally have the proper authority to grant the 1994

variance with conditions. The Board also does not argue that the certificates of

occupancy issued in 2005, 2008, and 2011 were improperly granted. Instead,

this is a situation where variances were granted on conditions, and both the

variances and conditions were then memorialized. The conditions, however,

have not been complied with. Consequently, even if the variance runs with the

land, it only does so based on the conditions attached to that variance. See

Aldrich v. Schwartz, 258 N.J. Super. 300, 308-09 (App. Div. 1992) ("If

subsequent owners are entitled to the benefits of [a] variance and the value it

adds to the property, . . . they should enjoy those benefits limited by any

restrictions which were lawfully attached as conditions, subject to current

zoning agency relief."). In short, neither the Board nor the Borough took action

that could be deemed to be a permanent waiver of the right to enforce the

conditions of the 1994 variance.




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                                       9
      In support of its argument for equitable estoppel, Belmont cites and relies

on our decision in Hill v. Bd. of Adjustment, 122 N.J. Super. 156 (App. Div.

1972). Our decision in Hill, however, is distinguishable. In Hill, the question

before the court was whether or not a variance granted by a board of adjustment

from a seven-foot side yard requirement should be affirmed. See id. at 158. In

affirming, the court took into consideration that the building inspector had

mistakenly issued the building permit for the construction of a garage, which

would violate the side yard requirement, but the construction was almost entirely

completed in reliance on the permit. Id. at 159. Accordingly, we held that the

permit was not void and the board could be estopped because the property owner

operated in good faith reliance on the building permit. Id. at 162. Here, as we

have already noted, neither the current owner nor any prior owners applied for

modifications of the conditions of the 1994 variance.

      Finally, as previously noted, the trial court held that the doctrine of

estoppel does prevent the Board and Borough from enforcing the conditions of

the 1994 variance against Belmont's current owner. We do not address that issue

since only Belmont appealed the trial court's decision.

      Affirmed.




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