Variance Conditions Upheld After 20 Years of Non-Enforcement

In 1994 the Borough of Haledon approved a variance for the operation of a car wash located on a gas station property.  The variance contained certain conditions that required certain aspects of the car wash business to be run out of the gas station.  Over the years, the car wash was sold separately from the gas station, which ended the common ownership of the two businesses.  The car wash was actually sold three different times, with each new owner receiving a certificate of occupancy from the Borough.  However, when the latest owner sought a certificate of compliance as part of the process to sell the business to a fourth owner, the Borough denied the application for failure to comply with the conditions of the 1994 variance.  The owner argued that the conditions could no longer be complied with due to the lack of common ownership of the car wash and gas station, and that the Borough never sought to enforce the twenty-year-old conditions.  However, the Borough disagreed as did the trial court.  In a recent unpublished decision, the two-judge panel affirmed the Borough's decision and held that despite the Borough's non-enforcement of the variance conditions for almost twenty years, and despite the fact that multiple prior certificates of occupancy had been issued to car wash owners during that time, the variance conditions were enforceable as such conditions run with the land as part of the variance and there was no action by the Borough amounting to a permanent waiver of enforcement.  (Belmont Car Wash LLC v. Planning and Zoning Board of the Borough of Haledon)