Palatine I v. Planning Board of the Township of Montville

STEIN, J.,

dissenting.

On first reading, the rough justice that the majority’s disposition inflicts on the developer in this case may be viewed as balanced under the circumstances. The Court holds that Palatine I (Palatine), a developer who stopped construction for about two years after completing half of a 60,000 square-foot office building, must comply with recent amendments to the municipal zoning ordinance in order to obtain permission to complete construction of the building. Compliance with those amendments requires that the building’s size be reduced by approximately 15,000 square feet.

Under closer scrutiny, however, the Court’s approach to this unique set of facts is as one-sided as the developer’s. Palatine’s position in the lower courts and before us was that the issuance of a building permit combined with substantial construction on the project estopped the municipality in perpetuity from applying zoning-ordinance amendments to the unfinished portion of the building, no matter how long the building’s completion was de*567layed. The Planning Board viewed the estoppel issue as irrelevant to its obligation to deny final site-plan approval because the plans no longer conformed to the zoning ordinance, suggesting that resolution of the estoppel issue would require joinder of the municipality. The Court’s disposition apparently precludes an estoppel against Montville, no matter how compelling the evidence of reliance and prejudice, on the ground that expiration of the building permit and of the statutory protection incidental to preliminary site-plan approval automatically reinstates Montville’s power to subject the project to zoning-ordinance amendments. Ante at 563, 628 A.2d at 330.

In my view, neither Palatine’s nor the Court’s position is consistent with established principles of equitable estoppel. A disposition faithful to those principles would be based on evidence of reliance and prejudice sufficient to permit a court to apply the estoppel doctrine in order fairly to balance the competing interests of the parties. Although the parties did not adduce estoppel-type evidence before the trial court, incorrectly assuming that their respective arguments would prevail as a matter of law, the preferred disposition would be to remand the matter for the development of such a record, particularly in view of the uniqueness of the issue presented.

I

Some of the critical aspects of the case, either overlooked or underemphasized by the Court, are the following:

1. The factual context is virtually without precedent. As the Law Division judge observed, “I don’t think we really have any fully controlling eases because the factual situation here is so unusual. I’ve never seen anything like it. Or close to it.” No reported New Jersey decision has upheld the application of a mid-construction zoning amendment to the uncompleted portion of a structure on which construction substantially had been undertaken before the amendment was adopted. No published opinion has ever decided whether, and under what circumstances, delay in *568construction of a partially-completed building can subject the unfinished portion to more-restrictive zoning-ordinance amendments. The absence of such decisional authority testifies persuasively to the generalized acceptance and stability of the basic principle that projects substantially under construction are insulated against subsequent zoning changes, both by statute and under principles of estoppel.

2. Although the Montville Planning Board’s final site-plan resolution recites the Board’s finding that “the application should be bifurcated and approval given only to the first building,” the resolution’s implication that the’ project involved two buildings is inconsistent with the stipulated facts. The parties have stipulated “[tjhat what was approved by the Planning Board constituted one office building having two wings each [sic] approximating 30,000 square feet in size, connected by a central core.” (Emphasis added)..

3. Although the majority acknowledges the possible invalidity of the Montville ordinance provision that authorized issuance of a building permit to Palatine before final site-plan approval had been obtained, the majority dismissively concludes that that invalidity is irrelevant to the Court’s disposition. Ante at 556, 628 A2d at 326. Not so. Had the Montville ordinance — the invalidity of which was conceded by the Planning Board in its Appellate Division brief — required final site-plan approval before issuance of a building permit, Palatine would have known in advance the extent of the statutory protection against zoning changes acquired as an attribute of final site-plan approval. See N.J.S.A. 40:55D-52a. Because Montville improperly issued Palatine a building permit before final site-plan approval, Palatine lost the benefit of the protection against future zoning changes incidental to final approval. Thus, Montville bears some — but not all — of the responsibility for this zoning debacle.

4. The majority accurately observes that “the record does not provide any showing of Palatine’s expenditures made solely for Section II or an analysis of the economic loss Palatine might *569sustain from building a smaller Section II.” Ante at 563, 628 A2d at 330. That omission from the record, the majority apparently concludes, obviates any consideration of whether equitable estoppel should be invoked against Montville. What the majority has overlooked, however, is that neither the parties, nor the trial court for that matter, perceived the need for the introduction of estoppel-type evidence demonstrating the consequences of applying the zoning amendments to this project. As noted, Palatine’s contention was that issuance of the building permit and substantial construction on the project permanently estopped the municipality from applying zoning-ordinance amendments to its building, which it could complete whenever it deemed economic conditions to be suitable; the Planning Board considered the estoppel issue to be between Palatine and the municipality, conceiving its duty to be discharged by denying final site-plan approval to a project that did not comply with recent zoning-ordinance amendments.

The majority correctly notes that the effect of the zoning amendments is to reduce the size of the uncompleted wing of the building by fifty percent, from 30,000 square feet to 15,000 square feet. Ante at 323-324, 628 A.2d at 550-551. As the municipal engineer’s notes make clear, that reduction in the size of the unfinished wing of the building would be required by virtue of Montville’s ordinance amendment restricting impervious coverage of the site to fifty-five percent of its area, no such restriction on impervious coverage having been imposed by the ordinance in effect when preliminary site-plan approval was obtained; construction of the proposed 60,000 square-foot building would have resulted in impervious coverage of approximately sixty-three percent of the site. Had the need for estoppel-type evidence been anticipated by the parties, the record presumably would have included testimony concerning the prejudicial effect of the ordinance amendments on the project, such as:

1. aggregate cost of the project, including land acquisition, design and approval costs, and construction costs;
*5702. architectural and related costs of redesigning project to comply with ordi-' nance amendments;
3. construction costs required and incurred based on 60,000 square-foot plans that would be unnecessary for 45,000-square-foot building;
4. reduction in aggregate construction cost and aggregate rent roll resulting from 15,000-square-foot reduction in size of building;
5. effect of downsizing building on financing arrangements and on developer’s anticipated return on investment;
6. effect of 15,000-square-foot downsizing on appearance and value of building;
7. negative impact on municipality and on adjacent properties if zoning-ordinance amendments relating to impervious coverage and floor-area ratio were not applied to Palatine’s project.

The foregoing constitute examples of the type of testimony that should have been adduced at trial, to inform an evaluation of the competing equities essential to a proper application of the estoppel doctrine. In that connection, the Township of Montville is a necessary party to any adjudication that might implicate the enforceability of provisions of its zoning ordinance. See Rule 4:28-l(a).

II

An examination of two interrelated legal issues is essential to a fair disposition of this appeal. The first concerns the invalidity of the provision of the Montville ordinance authorizing issuance of a building permit prior to final site-plan approval. The second concerns the proper application of the equitable-estoppel doctrine.

A. The Montville Ordinance.

In accordance with N.J.S.A. 40:55D-49,. Palatine obtained preliminary approval of its site plan in February 1982, affording it protection from zoning changes unrelated to public health and safety for a period of three years. As authorized by the statute, Palatine’s protection was extended for two additional one-year periods. See N.J.S.A. 40:55D-49c. In April 1986, during the last one-year extension of the protection from zoning changes afforded by its preliminary site-plan approval, Palatine applied to the Township of Montville for a building permit without applying for final site-plan approval, relying on the provision of the Montville *571Township ordinance that states: “A construction permit in connection with a site plan may be issued following preliminary approval and prior to final approval * * Montville Code, Land Use Regs., § 150-78(B). Although the majority acknowledges that “the better practice” may be for a municipality “to require final site plan approval before issuing a site plan,” the majority concludes that “it is not clear that the Municipal Land Use Law (MLUL) mandates that practice.” Ante at 554, 628 A. 2d at 326. I have no doubt that the Municipal Land Use Law (MLUL) contemplates that final approval of a site plan is a prerequisite to the issuance of the building permit and that the Montville ordinance is inconsistent with the MLUL.

The relevant statutes provide as follows:

The governing body may by ordinance require approval of * * * site plans by resolution of the planning board as a condition for the issuance of a permit for any development * * *.

[N.J.S.A. 40:55D-37.]

Preliminary approval of * 4 * a site plan pursuant to [N.J.S.A. 40:55D~46] shall * * 4 confer upon the applicant the following rights for a 3-year period from the date on which the resolution of preliminary approval is adopted:
a. That the general terms and conditions on which preliminary approval was granted shall not be changed, including but not limited to use requirements; layout and design standards for streets, curbs and sidewalks; lot size; yard dimensions and off-tract improvements; and, in the case of a site plan, any requirements peculiar to site plan approval pursuant to [N.J.S.A. 40:55D^41]; except that nothing herein shall be construed to prevent the municipality from modifying by ordinance such general terms and conditions of preliminary approval as relate to public health and safety;
b. That the applicant may submit for final approval on or before the expiration date of preliminary approval the whole or a section or sections of the preliminary subdivision plat or site plan, as the case may be; and
c. That the applicant may apply for and the planning board may grant extensions on such preliminary approval for additional periods of at least 1 year but not to exceed a total extension of 2 years, provided that if the design standards have been revised by ordinance, such revised standards may govern.

[N.J.S.A. 40:55D-49a-e.]

*572The planning board shall grant final approval [of site plans] if the detailed drawings, specifications and estimates of the application for final approval conform to the standards established by ordinance for final approval [and] the conditions of preliminary approval " s ®.

[N.J.S.A. 40:55D-50a.]

The zoning requirements applicable to the preliminary approval first granted and all of the rights conferred upon the developer pursuant to [N.J.Su4. 40:55D-49] * T * shall not be changed for a period of two years after the date on which the resolution of final approval is adopted * * *. If the developer has followed the standards prescribed for final approval * * ■* the planning board may extend such period of protection for extensions of one year but not to exceed three extensions. Notwithstanding any other provisions of this act, the granting of final approval terminates the time period of preliminary approval pursuant to [N.J.SA 40:55D-49] "■ " *.

[N.J.S.A. 40:55D-52a.]

The statutory scheme is self-evident. Preliminary approval of a site plan protects an applicant from zoning changes unrelated to public health and safety for a minimum of three years and, subject to municipal consent, for an additional period of two years. The issuance of final site-plan approval terminates the protection afforded by preliminary site-plan approval and confers additional protection against zoning changes unrelated to public health and safety for a minimum period of two years, with extensions for an additional period of three years, subject to municipal consent. Thus, the Legislature has authorized protection to be extended to developers from zoning changes, based on preliminary and final site-plan approval, that extend over a period of ten years, demonstrating a clear legislative purpose to insulate commercial-development projects that obtain local planning-board approval from subsequently-enacted more restrictive municipal-zoning provisions.

Although the statutory provision authorizing the grant of final site-plan approval does not specifically provide that that approval must precede the issuance of a building permit, the text of the statute quite clearly conveys that objective: “The planning board *573shall grant final approval if the detailed drawings, specifications and estimates of the application for final approval conform to the standards established by ordinance [and] the conditions of preliminary approval * * N.J.S.A. 40:55D-50a. The statutory language includes not the slightest hint that final site-plan approval is anticipated to be issued after construction has been completed. The requirement that the drawings, specifications, and estimates conform to the ordinance and to the conditions of preliminary approval unmistakably conveys the legislative intent that final site-plan approval is to be sought and obtained prior to the issuance of a building permit.

No reference to site-plan approval is found in the predecessor to the MLUL, the Municipal Planning Act (1953), L.1953, c. 433 (repealed by L.1975, c. 291). To the extent that any insight into the intended relationship between preliminary and final site-plan approval can be discerned from antecedent planning statutes, the earliest statutory authorization of a two-stage approval process is found in the Municipal Planned Unit Development Act (1967), L.1967, c. 61 (repealed by MLUL, L.1975, c. 291). The procedure for approval of planned-unit developments set forth in that statute required that the developer first obtain tentative approval, which was to be followed by final approval. See L.1967, c. 61, §§ 8, 9. That statute expressly provided that “tentative approval of a plan shall not qualify a plat of the planned unit development for recording nor authorize development or the issuance of any building permits.” L.1967, c. 61, § 8(b). The provisions of the MLUL that require preliminary and final approval of a site plan appear to have been modelled after the tentative- and final-approval provisions applicable to planned-unit developments, but the restriction on the issuance of building permits as an incident of tentative approval was not carried over into the MLUL.

Nevertheless, the legislative intent would appear to be crystal clear. As the majority indicates, the trial court had observed that the better practice and the normal practice is that “in most municipalities there is a final site plan approval before a permit is *574issued.” One of the State’s leading authorities on planning and zoning also expresses no doubt about the statutory scheme:

There can be no commencement of construction and, in fact, no issuance of a building permit until final approval of a site plan has been obtained. The statutory protections following a preliminary approval are primarily to benefit the large scale developer who will require a period of time to complete administrative coordination and production of his development, getting together all necessary approvals, for example, and who needs insulation from changes in the zoning ordinance requirements for a period long enough to complete that entire phase of the project. (In the case of small projects, it is customary for both preliminary and final site plan approval to be considered at the same time * *■
[William M. Cox, New Jersey Zoning & Land Use Administration, § 15-5.2 (1993) (emphasis added).]

Contrary to the majority’s observation that the invalidity of the provision of the Montville ordinance authorizing a building permit prior to final site-plan approval is irrelevant, the case before us would have been quite different had the Montville ordinance complied with the obvious intent of the MLUL. Palatine would have been required to obtain final site-plan approval before proceeding to construct any portion of the building. The issuance of final site-plan approval would have protected Palatine against zoning changes for a minimum of two years with the possibility of three one-year extensions. Undoubtedly, Palatine would have had a clearer understanding of the extent of the protection from zoning changes afforded the project had final site-plan approval been sought and obtained prior to the commencement of construction. Moreover, Palatine would have been spared the anomaly of having to apply for final site-plan approval after the project had been half completed. In my view, an informed application of the doctrine of equitable estoppel on an adequate record would have included consideration of the municipality’s responsibility for having adopted and implemented an ordinance that invalidly authorized issuance of a building permit to Palatine prior to final site-plan approval.

B. Equitable Estoppel.

Tremarco Corp. v. Garzio, 32 N.J. 448, 161 A.2d 241 (1960), one of this Court’s earliest applications of the doctrine of equitable *575estoppel, suggests that neither the lack of site-plan approval nor the expiration of a building permit is a bar to relief against a subsequently-enacted zoning-ordinance amendment. The plaintiffs predecessor had obtained a valid building permit to construct a public garage and service station in June 1957, the Municipal Planning Act (1953), L.1953, c. 433, then in effect imposing no requirements concerning site-plan approval. Relying on the permit and the zoning-ordinance provisions authorizing the use, the plaintiff agreed to purchase the property. Id. at 451, 161 A.2d 241. The plaintiff was aware that the local building code required revocation of any permit in respect of which construction had not commenced within ninety days of issuance, but had been assured that the permit could be renewed. The plaintiff acquired the property, entered into a contract for construction of the building at a cost of $31,412, and accepted delivery of storage tanks. The building permit was reissued in October 1957 and March 1958. Because of protests from township residents, the building inspector revoked the permit in April 1958. Id. at 451-52,161 A.2d 241. In June 1958, the municipality enacted an ordinance amendment barring construction of gasoline stations on the property. A September 1958 amendment rezoned the plaintiffs property from business to residential use. Id. at 452, 161 A.2d 241.

In the ensuing litigation, the plaintiff urged that the municipality was estopped from revoking a validly-issued building permit when substantial expenditures had been made in reliance on the permit; the municipality argued that the lack of any construction demonstrated that the plaintiffs reliance was insubstantial, and that the ordinance then in effect governed the permitted use of the property. Id. at 454-55, 161 A.2d 241. This Court, concluding that “the equities strongly predominate in favor of plaintiff,” id. at 458, 161 A.2d 241, explained the balancing process that courts must invoke to decide estoppel-type issues:

In general terms the rule is that where the permit is regularly issued in accordance with the zoning ordinance, it may not be revoked after reliance. It must be determined at what point it can be said that an individual has performed acts which form the wellspring from which certain protectable interests may flow and create a countervailing force which will prevail over the normally paramount *576authority of the municipality to preserve the desirable characteristics of the community through zoning. As was pointed out by Judge Conford in Roselle [v. Mayor and Council of Borough of Moonachie, 49 N.J.Super. 35, 40, 139 A.2d 42 (App.Div.1958) ], the basic problem is “as to the stage of utilization of an individual’s property which should be regarded as immunizing it from the ban of a subsequently adopted prohibitory zoning regulation.” * * *
There is no easy formula to resolve issues of this kind. The ultimate objective is fairness to both the public and the individual property owner. We think there is no profit in attempting to fix some precise concept of the nature and quantum of reliance which will suffice. Rather a balance must be struck between the interests of the permittee and the right and duty of the municipality through planning and the implementation of that scheme through zoning “to ‘make, ordain and establish all manner of wholesome and of reasonable laws, not repugnant to the Constitution,’ as may be deemed to be ‘for the good and welfare of the commonwealth, and all the subjects of the same.’ ” Roselle v. Wright, 21 N.J. 400, 408-409 [122 A.2d 506] (1956). This right is one of which the permittee is deemed to be aware.
[Id. at 456-57, 161 A.2d 241 (citations omitted).]

In Gruber v. Mayor of Raritan, 39 N.J. 1, 186 A.2d 489 (1962), the equitable-estoppel issue arose in connection with a five-section, 131-acre residential development, the subdivisions for which had been approved by the municipality in 1956, prior to the effective date of the municipality’s land-subdivision ordinance. Work on four model homes in the subdivision’s first section was substantially completed during 1957, together with related curbs, sidewalks, road grading, and utility poles. Although the development of the tract was “relatively dormant” from 1957 to the fall of 1958, id. at 6, 186 A 2d 489, the Township Committee granted extensions of time for the filing of subdivision plats, and the Township’s first zoning ordinance provided that the 131-acre tract was zoned for residential use. The plaintiffs had acquired the property from the initial developer in 1958, making payments and assuming obligations in excess of $500,000. Ibid. In 1959 the Township rezoned the entire tract for light industrial use, prohibiting residential development. Id. at 8, 186 A.2d 489. This Court’s treatment of the estoppel issue, which resulted in a holding that the Township was estopped from prohibiting development of the subdivision’s first section, and a remand for development of a more adequate factual record concerning the other four sections, took *577into account both the developer’s delay and the municipality’s encouragement of the project:

We are here confronted with a case in which the development originated before the municipality had any planning board or land subdivision ordinance and in which the developer (and his successors) prosecuted the development thereafter with substantial efforts and expenditures and with consistency though “haltingly and with interruptions.” 73 N.J.Super., [73 N.J.Super. 120] at p. 128 [179 A.2d 145] [ A.D.1962) ]. It is significant that when there were interruptions the municipality did nothing whatever towards expedition of the development nor did it do anything to suggest to the developer that his interests would be in jeopardy if he did not proceed in faster fashion. On the contrary, the municipality granted formal approvals and extensions which on their face avoided defaults and justified the developer’s reliance. Although the Law Division was of the opinion that these approvals and extensions were wholly ultra vires in the primary sense and therefore could not furnish any support whatever for the claim of equitable estoppel or vested rights, we do not so regard them.
The Township has advanced technical arguments which need not detain us since they have little substance and no relation to the equities of the case. The fact is that it is seeking to disavow its commitments to a developer with whom it has not dealt at all fairly. When it belatedly became alarmed at its residential growth, it did not seek to work out a reasonable solution with the developer which might have reduced the number of planned houses and at the same time have permitted the developer to proceed so as to retrieve its investment with a reasonable return. Instead, it abruptly took action which was designed to exclude all residential building and occupancy, even in section 1 where four model homes had already been built, curbs and sidewalks had been placed, road grading and graveling had been done, utility poles had been installed, and other work had been completed. Insofar as section 1 is concerned, the plaintiffs’ claim for relief rests firmly on elemental considerations of justice and comes well within the equitable principles expressed in Tremarco Corporation v. Garzio, supra. And it may very well be that the plaintiffs’ claim should also be sustained with respect to some or all of the remaining sections within the principles expressed as to sectional developments in Telimar Homes, Inc. v. Miller, [14 A.D.2d 586, 218 N.Y.S.2d 175 (App.Div.1961) ]. However, we are not now prepared to determine that issue because of the somewhat uncertain state of the record and the absence of any findings in the Law Division. There are vital public as well as private interests and we believe that the safer course would be to remand the case to the Law Division for its findings and determination after the taking of more detailed testimony, particularly with respect to the precise nature and extent of the plaintiffs’ expenditures and good faith reliance and the practicability and fairness of restricting the residential development to any section or sections less than the entire tract.
[Id. at 17-19, 186 A.2d 489 (emphasis added) (citations omitted).]

The issue of the adequacy of a record for the purpose of resolving an equitable-estoppel issue also was addressed in Sautto *578v. Edenboro Apartments, Inc., 69 N.J.Super. 420, 174 A.2d 497 (App.Div.1961). The plaintiffs had challenged the validity of a building permit to construct a five-story, sixty-four-unit apartment house in the City of Orange that failed to conform with the sideyard-setback provisions of the zoning ordinance adopted after issuance of the building permit. The defendant contended that it had incurred substantial expenditures in reliance on the permit, and had continued construction on the project while the litigation was pending. In reversing the trial court’s grant of summary judgment for the defendant, the Appellate Division, in an illuminating opinion by Judge Conford, elaborated on the need for an adequate factual record in deciding whether a developer’s reliance was sufficient to bar application of a subsequent zoning-ordinance amendment:

We are thus brought to defendant builders’ alternative contention of substantial reliance upon the permit. * * * These decisions, taken together, indicate that where a property owner has been granted a building permit for a use valid when granted, the municipality nevertheless has a right to adopt later zoning or other police power legislation restrictive of the enjoyment of the permit already issued, but not where the permittee in reliance upon the permit has made substantial investment or expenditure, or where the extent of his reliance and the nature of the behavior of the parties show a balance of the equities strongly in favor of the permittee as against the general public represented by the municipal authorities (or, as here, a complaining taxpayer-owner).
Each case presents a question of fact peculiar to its own concatenation of circumstances. No “easy formula” is available for resolution of such issues. “The ultimate objective is fairness both to the public and the individual property owner.” It is obvious, however, that the complex variety of factors which must control such a determination emphasizes the desirability of reaching a judicial conclusion upon them by plenary hearing rather than on the basis of opposing sets of affidavits, which frequently are heavily larded with lawyer-dictated conclusions and hearsay, and characterized by absence or minimization of illuminating detail of potentially harmful import to the cause being aided by the affiant.
[Id. at 429-30, 174 A.2d 497 (quoting Tremarco Corp., supra, 32 N.J. at 457, 161 A.2d 241) (emphasis added).]

On remand, the Law Division entered judgment for the plaintiffs, which would have required substantial demolition of the apartment house. The Appellate Division reversed, concluding that “the judgment under review imposes a disproportionate and unconscionable hardship upon defendants and that the equities viewed from the total record do not preponderate in favor of *579plaintiffs.” 84 N.J.Super. 461, 478, 202 A.2d 466, certif. denied, 43 N.J. 353, 204 A.2d 588 (1964).

Our precedents persuasively emphasize both the equitable focus of the estoppel doctrine and that its proper application depends critically on the production of proofs sufficient to permit a balanced consideration of the competing interests. No litmus test— such as expiration of a building permit — is determinative. As the Appellate Division observed in Urban Farms, Inc. v. Borough of Franklin Lakes, 179 N.J.Super. 203, 431 A.2d 163, certif. denied, 87 N.J. 428, 434 A.2d 1099 (1981), in denying retroactive application of a post-judgment zoning-ordinance amendment to a nursing home developer that successfully had challenged the municipality’s denial of a special exception use permit,

[w]e do not regard the issuance of a building permit as a sine qua non to the applicability of the substantial reliance doctrine. Rather, we are of the view that its applicability requires a weighing of such factors as the nature, extent and degree of the public interest to be served by the ordinance amendment on the one hand and, on the other hand, the nature, extent and degree of the developer’s reliance on the state of the ordinance under which he has proceeded, the extent to which his undertaking has been at any point approved or encouraged by official municipal action, and the extent to which, under the circumstances and as objectively determined, he should have been aware that the municipality would be likely to change the ordinance prior to actual commencement of construction. These are the factors constituting the developer’s special equities, and if they outweigh the public interest concerns, they should also operate to bar post-judgment retroactivity of a zoning ordinance amendment. - We are satisfied from the record before us that the developer’s special equities here are not only substantial but also that they are superior to the public interest purportedly served by the amendment. * * * The developer patently expended substantial sums for project development on the basis of the original approval. It had no reason to believe that the ordinance would be amended in midstream after its seven years of dedication to the project which followed the municipality’s original approval. For all of these reasons, we are satisfied that retroactive application in these circumstances would be fundamentally unfair.
[Id. 179 N.J.Super. at 221-22, 431 A.2d 163 (citation omitted).]

The majority has concluded correctly that a-developer cannot delay completion of a project indefinitely and claim exemption from all future zoning amendments solely on the basis of reliance on the original permit. In that respect, the record is troubling because no representation was made concerning when construction of the balance of the project would resume, assuming muniei*580pal approval was forthcoming. However, the majority misconceives the estoppel doctrine when it observes, ante at 563, 628 A2d at 330, that Palatine’s reliance on its building permit was “unreasonable and unjustified and does not warrant the application of equitable estoppel.” Reliance on the building permit and proof of prejudice resulting from application of the amended zoning ordinance are the very essence of a claim for relief based on the equitable-estoppel doctrine.

The unique facts of this case may have diverted the parties from adequately presenting evidence sufficient to permit a reasoned and comprehensive disposition based on the doctrine of equitable estoppel. In my view, the Court should remand this matter to the Law Division to permit development of a full record at a plenary trial, in which proceeding the municipality should be joined. The issue presented is one of first impression, and we serve neither the interests of the litigants nor the interests of justice by a disposition that is uninformed by proofs that thoroughly reveal the respective equities of the parties.

Justices CLIFFORD and O’HERN join in this opinion.

For affirmance — Chief Justice WILENTZ, and Justices HANDLER, POLLOCK and GARIBALDI — 4.

For reversal and remandment — Justices CLIFFORD, O’HERN and STEIN — 3.