Palatine I v. Planning Board of the Township of Montville , 133 N.J. 546 ( 1993 )

The opinion of the Court was delivered by

GARIBALDI, J.

This appeal presents the question of whether a municipal planning board’s grant of preliminary site-plan approval and a building permit insulates a developer in perpetuity against zoning changes. Specifically, is a municipal planning board equitably estopped from denying final site-plan approval and applying post-preliminary site-plan approval zoning amendments to a developer whose preliminary site-plan approval and construction permit have expired? Like the trial court and Appellate Division below, we conclude that it is not. Accordingly, we affirm the judgment of the Appellate Division.

I. Facts and Procedural History

Plaintiff, Palatine I (Palatine), is a partnership owning 4.9 acres of land in Montville. In 1982, Palatine applied to the Montville Planning Board (the Board) for preliminary site-plan approval for an office building. The application proposed a 65,000-square-foot two-story building, consisting of two 30,000-square-foot wings connected by a central core. On February 11, 1982, the Board, finding that the application fully complied with all then-existing zoning regulations, granted preliminary site-plan approval. That initial grant of preliminary site-plan approval conferred rights on Palatine for a three year period, ending February 11, 1985. In October 1984, Palatine applied for and received an extension of the preliminary site-plan approval to February 11, 1986. In January 1986, Palatine applied for and received a second extension to February 12, 1987. In granting the second extension, the Board warned Palatine that “this is the last extension of preliminary site plan you can request.”

During the period covered by the second extension, Palatine applied for a construction permit. The permit was issued by Montville’s construction official on April 11, 1986. Palatine paid fees of $4,699.31 for the construction permit. Printed across the bottom of the permit was the following notice:

If construction does not commence within one (1) year of date of issuance, or if construction ceases for a period of six (6) months, this permit is void.

Palatine did commence construction and completed the first wing of the building (Section I) and the central core sometime in 1987 or 1988. Palatine also laid a concrete slab as a foundation for the second wing (Section II), but did not construct the remainder of Section II because of “the sagging real-estate market.” At that stage, Palatine had spent approximately $2,000,000 for construction costs, including $200,000 for a storm sewerage permit and $40,000 for soil improvement. No allocation has been made of the construction costs attributable solely to the construction of Section

II. Palatine still has no plans to build Section II in the foreseeable future.

In October 1989, Palatine, having secured tenants for Section I, applied for a certifícate of occupancy for that Section and for final site-plan approval for the entire complex. In 1986 and 1987, after the granting of the preliminary site-plan approval, Montville had amended its zoning ordinances in ways that made them more restrictive than the zoning ordinances in effect at the time of the original approval. Under the new standards, the largest building that could be built on Palatine’s property would be approximately 45,000 square feet. Palatine had already built one 30,000-square-foot wing plus the small core. Roughly speaking, therefore, the net effect of the maximum lot coverage standard, if applied to Palatine, would be that Palatine would have to halve the size of the unbuilt wing or else obtain variances.

In considering Palatine’s application for final site-plan approval, the Board bifurcated its consideration of Section I and the core, which existed, and Section II, which did not. The Board’s resolution stated:

this application was originally submitted in 1981 and the first building has been completed while only a foundation exists for the second building, and the Board notes that no work has progressed on the second building for a period of years. Applicant now wants to rent the first building but preserve his rights under the original Ordinance for the construction of Phase II, the second building; and

the applicant testified that completion of the original project was held up because of economics; and

the Board, based on legal advice, finds that while the first building was in compliance with the 1981 Land Use Ordinance, that building number 2 when completed, must comply with the Ordinance in affect [sic] at the time a new site plan application is approved; and

the Board finds that the application should be bifurcated and approval given only to the first building * * *.

Accordingly, the Board granted final site-plan approval and a certificate of occupancy for the existing structure consisting of Section I and the core. However, the Board denied final site-plan approval for Section II because the plans did not comply with current zoning regulations.

Palatine filed a complaint in lieu of prerogative writ in the Law Division on December 19, 1990, naming the Board as the sole defendant. Palatine sought declaratory judgment that it was entitled to final site-plan approval on the entire project and that it could, “at such time as it sees fit,” complete construction of Section II as originally approved under 1982 zoning law. Palatine presented two arguments. The first was that the Board was arbitrary, capricious, and unreasonable and acted contrary to law in concluding “that * * * preliminary site plan approval on building number 2 had expired; and/or * * * [tjhat Palatine is subject to zoning amendments rendering the Building nonconforming after the commencement of construction.” The second theory was that due to Palatine’s reliance on the building permit, the Board was equitably estopped from enforcing against Palatine any zoning amendments adopted after construction began. The Board counterclaimed for declaratory relief, arguing that it had acted within its rights in denying final approval. The parties entered into a stipulation of facts.

After oral argument, the trial court affirmed the Board’s decision to deny Palatine final site-plan approval for Section II and to subject plaintiff to the zoning regulations enacted after the grant of preliminary approval. The trial court stated, however, that a “plausible case might well be made by the plaintiff for getting a variance” from the Montville Board of Adjustment.

Plaintiff appealed, adding as a third theory that the entire proposed building, including both Section I and the unbuilt Section II, was protected as a pre-existing nonconforming structure under N.J.S.A 40:55D-68. The Appellate Division rejected all Palatine’s arguments and affirmed the trial court’s judgment substantially for the reasons expressed in its opinion.

We granted certification, 130 N.J. 601, 617 A.2d 1223 (1992), and now affirm.

II. Protection Under Preliminary Site-Plan Approval

A municipality is empowered by N.J.SA. 40:55D-37 to enact an ordinance requiring approval of site plans by the municipal planning board as a condition for issuance of a construction permit. Montville has such an ordinance. Accordingly, Palatine submitted its plans for its proposed office building in 1981 and received preliminary site-plan approval on February 11, 1982.

A grant of preliminary site-plan approval carries with it certain rights. N.J.S.A. 40.-55D-49 provides that preliminary approval protects the applicant from changes in zoning ordinances for three years, except for zoning changes that “relate to public health and safety.” That statute also states 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.” The purpose of the statute is to give a developer a reasonable period of protection from changes in the zoning law. Bleznak v. Township of Evesham, 170 N.J.Super. 216, 219, 406 A.2d 201 (Law Div.1979).

Thus, an applicant who receives preliminary site-plan approval for a project is protected under N.J.S.A. 40:55D-49 against the application of adverse zoning amendments unrelated to public health or safety for up to five years from the grant of preliminary site-plan approval. After those five years have elapsed, the preliminary approval does not automatically expire, but the statutory period of protection from adverse changes in zoning regulation does expire.

On the closely related subject of final site-plan approval, William Cox writes:

There is a common misapprehension that a site plan “expires” at the end of the two-year period set forth in N.J.S. 40:55D-52a. The statute does not so provide; the site plan is given protection, or vested rights, against a change in zoning for said period, but if at the expiration of the two years there has been no change in zoning, the site plan continues to be in full force and effect until such time as the developer determines to proceed with the development.

[William M. Cox, New Jersey Zoning and Land, Use Administration ¶ 15:5.2 (1993) (emphasis added).]

If, however, there has been a change in the zoning, then the final site-plan approval will not insulate the site plan from the application of the new zoning laws after the two-year period of protection expires.

The same is true of preliminary approval, except of course that the statutory term of years is different. The approval itself is valid indefinitely, but its effect of insulating the holder from changes in the zoning laws is limited to the specified term of years. If the applicable zoning laws have not changed, the holder of preliminary approval may continue past the five-year period without obtaining further approvals. However, if the zoning laws have changed, then after the five-year period of protection has elapsed, the municipality may enforce those new regulations against the holder of preliminary approval.

Thus, Palatine’s preliminary approval protected it from non-safety-related changes in the zoning laws for a five-year period. That protection began on February 11,1982, and ended on February 11, 1987. By the time Palatine applied for final site-plan approval in October 1989, it was no longer protected by the preliminary site-plan approval from changes in the applicable zoning laws.

III. Building Permit

While it was still under the preliminary site-plan approval’s protection, Palatine applied for a building permit. Montville’s zoning ordinances allow a developer to obtain a building permit before obtaining final site-plan approval. The relevant ordinance states:

A construction permit in connection with a site plan may be issued following preliminary approval and prior to final approval * * a'.

[Montville Code § 150 — 78(B).]

Although it may be, as the trial court stated, “the better practice” for a municipality to require final site-plan approval before issuing a site plan, the Municipal Land Use Law (MLUL) does not clearly mandate that practice. Cox states that “[t]here 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,” Cox, supra, ¶ 15-5.2, but he cites no case or statute in support of that unequivocal assertion. The relevant statute states:

The governing body may by ordinance require approval of subdivision plats by resolution of the planning board as a condition for the filing of such plats with the county recording officer and 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(a).]

The authorizing statute does not distinguish between preliminary and final site-plan approval, nor does it distinguish between preliminary and final subdivision approval, thus leaving unclear which form of approval may be required before a building permit may issue. Case law has answered that question with regard to subdivisions, holding that final subdivision approval is required before a building permit may be issued. Levin v. Township of Livingston, 35 N.J. 500, 512-13, 173 A.2d 391 (1961); Celia v. Township of Cedar Grove Bd. of Adjustment, 45 N.J.Super. 585, 589, 133 A.2d 389 (Law Div.1957). However, no case has construed the statute with regard to site-plan approval. Montville’s ordinance reflects that distinction, requiring final approval before issuance of a building permit for a subdivision, Montville Code § 150-78(A), but requiring only preliminary approval for a site plan, Montville Code § 150-78(B).

The question of whether N.J.S.A. 40:55D-37 refers to final site-plan approval rather than preliminary site-plan approval as a condition for the issuance of a permit is not before us. Palatine does not challenge the validity of the ordinance. Although the Board did argue below that the ordinance was invalid because it improperly allowed issuance of a building permit before final site-plan approval, it did not seek certification of that question.

Moreover, even if the ordinance were invalid, that circumstance would be irrelevant to the disposition of this case. When a permit is issued in good faith and in apparent compliance with the law, and the permit-holder reasonably and in good faith relies on that permit, the issuing municipality is estopped from revoking it even if it was erroneously issued. Jantausch v. Borough of Verona, 41 N.J.Super. 89, 124 A.2d 14 (Law Div.1956); see also Gruber v. Mayor of Raritan Township, 39 N.J. 1, 186 A.2d 489 (1962) (noting distinction between “an act which is utterly beyond the jurisdiction of a municipality and an act which involves an irregular exercise of a basic power possessed by the municipality,” stating in latter case municipality may be equitably estopped from revoking irregularly-issued permit after reliance). Essentially, such a permit is treated as validly issued. The permit in this case was issued in good faith and relied upon by Palatine. Therefore, we treat the permit as validly issued regardless of the ordinance’s validity. Palatine received its building permit on April 11, 1986, within the five-year period of protection from adverse zoning changes afforded by the preliminary site-plan approval. The permit bore the following words on its face:

Note: If construction does not commence within one (1) year of date of issuance, or if construction ceases for a period of six (6) months, this permit is void. (emphasis added).

Palatine began construction and completed Section I and the core of the building, and also laid a concrete slab as a foundation for Section II. At that point, sometime in 1988, Palatine halted construction, anticipating a shortage of tenants due to a downturn in the real-estate market. Neither the Board nor any town entity influenced Palatine’s decision to halt construction; it was a unilateral decision based on economies. Palatine has never attempted to resume construction nor does it have any plans to do so in the foreseeable future. Construction having ceased for more than six months, the permit was void on its face long before the Board denied final site-plan approval or Palatine filed this suit.

Palatine argues, however, that the permit still entitles it to build Section II whenever it chooses without having to comply with any zoning changes enacted after the 1982 preliminary site-plan approval. Palatine’s argument in support of its position really consists of two discrete arguments. Its primary argument is that due to Palatine’s reliance on the permit and the preliminary site-plan approval, the Board is equitably estopped from revoking or from refusing to reissue a building permit. That argument is discussed in Part IV of this opinion. Its second, subsidiary argument is that the words on the face of the permit, despite their apparently plain meaning, do not operate to void the permit after a six month halt in construction.

The time limitation on the face of the permit is based on the New Jersey Uniform Construction Code (the Code). The Code, codified at Title 5, Chapter 23 of the New Jersey Administrative Code, was adopted by the Commissioner of the Department of Community Affairs pursuant to the Legislature’s command that he “adopt a State Uniform Construction Code.” N.J.SA 52:27D-123. The Commissioner was given “all powers necessary or convenient to effectuate the purposes of this act, including [the power] * * * [t]o adopt, amend and repeal * * * rules relating to the administration and enforcement of this act” and to “make, establish and amend * * * such rules as may be necessary, desirable or proper to carry out his powers and duties under this act.” N.J.S.A. 52:27D-124.

Section 5:23-2.16 of the Code governs construction permits. In relevant part, it states:

(b) Suspension of permit: Any permit issued shall become invalid if the authorized work is not commenced within 12 months after issuance of the permit, or if the authorized work is suspended or abandoned for a period of six months after the time of commencing the work.

[N.J.AC. 5:23-2.16.]

Palatine does not argue that N.J AC. 5:23-2.16(b) is arbitrary and capricious or beyond the scope of the Commissioner’s authority to adopt. It argues that the regulation does not mean what it says. According to Palatine, N.J.A.C. 5:23-2.16(b)’s sole intent was to allow a municipality to require a builder who suspended construction to comply, on resuming construction, with changes in the safety-related model subcodes promulgated by the Building Officials and Code Administrators International, Inc. (BOCA). Palatine argues that the regulation was not intended to allow a municipality to require a builder to comply with changes in zoning ordinances. Palatine bases those assertions on an alleged conversation with the former Commissioner who drafted the regulations.

We are unimpressed by Palatine’s unofficial legislative history. Whatever may have been the Commissioner’s motivation, the regulation he wrote is clear, and it is the regulation that governs, not a second-hand report of the intent of its author expressed years after its promulgation.

Moreover, the plain language of the regulation is totally at odds with Palatine’s proffered interpretation. The regulation simply states that if construction is suspended or abandoned for six months, the permit becomes invalid. We will not read extrinsic provisions into that unambiguous command.

Palatine appears to be confusing the issuance of a building permit by the municipality’s construction official with the granting of preliminary, or final site-plan approval by the planning board. Site-plan approvals carry with them an umbrella of statutory protection from changes in non-safety-related regulations. Building permits do not carry the same degree of protection; they give the builder permission to build and confer rights against inequitable government action. It is the site-plan approval, not the permit, that when validly issued insulates the builder from non-safety-related changes in applicable regulations. If the building permit expires during the statutory period of protection provided by the site-plan approval, then the builder is protected by the site-plan approval. If the building permit expires and there is no extant site-plan approval, nothing protects the builder. The permit does not itself provide protection from changes in the law.

We therefore conclude that N.J.AC. 5:23-2.16(b) validly provides that a building permit is void after six months of suspension of construction. Palatine freely decided to halt construction for over six months. Therefore, its permit has expired and its permission to build has terminated.

IV. Equitable Estoppel

Palatine’s main argument is that the Board is equitably estopped from applying zoning amendments enacted after 1982 against Palatine. Palatine argues that the preliminary site-plan approval protected it from 1982 to 1987; that a building permit was validly issued during that period of protection; and that it relied on that .building permit by commencing construction. Therefore, Palatine claims, even if the building permit has expired, the Board is equitably estopped from “revoking” the permit.

We note first that the Board does not issue the building permit. That power lies in the construction official of Montville. Neither the construction official nor Montville was joined in this suit. Further, we note that the Board has not revoked Palatine’s permit; the permit expired on its own terms due to Palatine’s inaction. However, the Board denied final site-plan approval for Section I, and has stated that it would not approve a new application for preliminary site-plan approval for Section II unless the application complied with all zoning ordinances in effect at the time it is made. Without the Board’s grant of preliminary or final site-plan approval, Palatine cannot obtain a new building permit from the construction official. Palatine believes that it does not need to reapply for preliminary site-plan approval. Its position is that its reliance on the original building permit entitles it to complete the original project at its convenience, and that Montville is estopped from requiring any further approvals or enforcing any adverse zoning amendments enacted after the preliminary site-plan approval in 1982.

We have applied the doctrine of equitable estoppel in a number of cases between builders and municipalities, although never in a case factually analogous to this one. We have held that when a permit is issued validly or in good faith and the builder has justifiably and in good faith relied on it to his substantial detriment, the municipality is estopped from revoking the permit absent fraud. When the permit was invalidly issued without even a semblance of compliance with the relevant ordinances, however, estoppel will not apply even if there has been reliance. Gruber, supra, 39 N.J. at 14-15, 186 A.2d 489; Jantausch, supra, 41 N.J.Super. at 93-94, 124 A.2d 14.

The doctrine of equitable estoppel is applied “only in very compelling circumstances,” Timber Properties, Inc. v. Chester Township, 205 N.J.Super. 273, 278, 500 A.2d 757 (Law Div. 1984), “where the interests of justice, morality and common fairness clearly dictate that course.” Gruber, supra, 39 N.J. at 13, 186 A.2d 489. The purpose of the doctrine is to balance fairly the developer’s interest in a stable and predictable regulatory climate with the municipality’s interest in promoting sound planning and growth.

[T]he ultimate objective [is] fairness to both the public and the individual property owner and * * * it [is] necessary to strike a proper balance between the interests of the plaintiff and the right and duty of the municipality to promote the public welfare of the community through proper planning and zoning.

[Gruber, supra, 39 N.J. at 15, 186 A.2d 489.]

With those equitable principles in mind, we have applied equitable estoppel to prevent municipalities from revoking valid permits or approvals from builders who had justifiably relied on those permits or approvals to their substantial detriment. In Gruber, we held that the township, which was “seeking to disavow its commitments to a developer with whom it [had] not dealt at all fairly,” was estopped from rezoning plaintiffs’ land to exclude residential uses after plaintiffs had invested substantial resources and had actually constructed several houses. Id. at 18, 186 A.2d 489. In Tremarco Corporation v. Garzio, 32 N.J. 448, 161 A.2d 241 (1960), the plaintiff held a valid permit to build a gas station on its property and had undertaken considerable preconstruction work, including entering into a construction contract. The township revoked the permit and passed an ordinance banning gas stations in that neighborhood. We held that the township was estopped from revoking the permit and retroactively applying the no-gas-stations ordinance after the plaintiffs reliance. Id. at 458, 161 A.2d 241.

The present ease is unlike Gruber or Tremarco. In those cases, the townships had attempted to interfere and to revoke rights that were validly held by the builders at the time of the attempted revocation. We held that equitable estoppel barred that interference with the builders’ rights. By contrast, at the time the Board denied Palatine’s application for final site-plan approval on Section II, Palatine’s building permit and the statutory period of protection from changes in the law had both expired. Palatine at that point possessed no right to continue building without complying with up-to-date zoning regulations. The Board, therefore, did not violate, deny, or revoke Palatine’s rights by denying final site-plan approval as to the unbuilt portion of the building, and therefore equity does not require that the Board be held to be estopped.

Palatine’s case is more analogous to the situation in Dimitrov v. Carlson, 138 N.J.Super. 52, 350 A.2d 246 (App.Div.1975). In that case, the developer obtained a use variance in 1964 enabling him to build 196 garden apartments on his property. The variance had no time limitation. In 1966, the municipality amended the zoning ordinance, banning garden apartments from all zones. In 1970, the developer submitted an application for site-plan approval, proposing to build the garden apartments. The planning board denied the application because it violated the 1966 ordinance. The developer brought suit, arguing, among other things, that he had spent money in reliance on the variance and that the planning board was therefore estopped to deny approval of the site plan because of the change in the ordinance.

The Appellate Division rejected the developer’s claim for equitable relief, holding instead that equitable principles compelled an affirmation of the board’s decision.

[Respondents waited six years after obtaining their use variance, and four years after the erection of garden apartments was proscribed, before seeking site plan approval.

Such long delays, whatever financial or other problems respondents may have had, do not warrant equitable relief.

[138 N.J.Super, at 60-61, 350 A.2d 246.]

The Appellate Division’s opinion in Dimitrov recognizes that the equities are not all on one side: the developer has an interest in preserving the conditions under which he initially decided to invest in the development, but the township also has an interest in enforcing its laws and controlling its growth and development. Palatine, like Dimitrov, asks us to hold its interests as absolutely protected for an unlimited period of time and to hold the municipality’s interests as negligible, and to do that in the name of equity. We cannot.

Site-plan approval statutes, by setting forth a period of years in which site plans are protected from adverse zoning changes, strike an equitable balance between the interests of developers in stable regulations and the interests of municipalities in being able to plan for their communities through zoning ordinances and in being able to enforce those ordinances. We see no special facts in this case that warrant disturbing the balance between those interests chosen by the Legislature. Palatine’s interests in a stable regulatory environment were amply protected by the five-year period of protection it received under the preliminary site-plan approval. It chose not to begin construction until over four of those five years had elapsed. It chose not to apply for final site-plan approval, which would have given it another two to five years of protection, during that five-year period. Indeed, like Dimitrov, Palatine

without good cause, slept upon [its] rights and should not now be heard to complain. The effect of [Palatine] prevailing on this appeal would be to limit and frustrate the township’s right, power and duty, in factual situations as exist here, to adopt future zoning laws for the public welfare and safety * * *.

[Dimitrov, supra, 138 N.J.Super. at 61, 350 A.2d 246.]

Palatine’s self-caused hardship does not warrant equitable relief.

The burden of proving a claim of equitable estoppel rests on plaintiff. Virginia Constr. Corp. v. Fairman, 39 N.J. 61, 70, 187 A.2d 1 (1962). Plaintiff has failed to present such evidence. Palatine does not allege that either the Montville construction official or the Board acted in bad faith. Palatine did not rely on any representation by the Board or the municipality that its protection from adverse zoning amendments would continue beyond the expiration of the preliminary site-plan approval. The Board was accommodating to Palatine. It granted Palatine every legal extension of preliminary approval that it requested, noting in the second extension that that was the last extension on the preliminary site plan that could be requested; approved the building permit; gave it a certificate of occupancy for Section I so it could rent that Section; and did nothing to halt construction of Section II. Unlike the municipalities in Gruber and Tremarco, Montville did not attempt to revoke a valid permit, to interfere with construction, or to disavow commitments to Palatine. It was Palatine’s decision not to build Section II or to seek a timely final site-plan approval.

Furthermore, 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 sustain from building a smaller Section II. Because Palatine has no plans to resume construction of Section II at this time, any losses he may suffer when he finally, if ever, does decide to construct Section II are highly speculative. See Virginia Constr. Corp., supra, 39 N.J. at 71, 187 A.2d 1 (holding that potential loss of some anticipated profits is not controlling factor).

Moreover, even if Palatine had been able to prove substantial detrimental reliance, we would still not find estoppel because only justified and reasonable reliance warrant the application of equitable estoppel. Palatine’s reliance was neither. The Board’s final extension of preliminary site-plan approval clearly stated that the approval expired on' February 12, 1987. Palatine knew, or should have known, that its statutory insulation from changes in the law expired on that date. Likewise, the building permit clearly stated that it expired after six months’ suspension or abandonment of construction. Palatine knew, or should have known, that its right to build under that permit would expire after it had halted construction for six months. Palatine could not reasonably have believed that these authorizations went on forever, when they so clearly announced the terms of their expiration. Indeed, under these facts “[i]t would disturbingly conflict with the public interest to tie [Montville] to past ideas during that extended time in the future.” Virginia Constr. Corp., supra, 39 N.J. at 73, 187 A.2d 1. No perpetual legal protection existed on which Palatine could justifiably rely. Therefore, Palatine’s alleged detrimental reliance on the perpetual validity of a preliminary site-plan approval and a building permit with definite terms of expiration was unreasonable and unjustified and does not warrant the application of equitable estoppel.

We agree with the dissent that this is an unusual case. A developer with no definite plans to build in the foreseeable future is asserting that the municipality’s zoning ordinance in effect when it secured preliminary site-plan approval is frozen, so that regardless of when, if ever, it resumes construction, those 1982 zoning ordinances would be applicable. The developer asserts that even though the protection afforded by preliminary site-plan approval is limited in time, and even though the protection afforded by a building permit is contingent on continued progress, it is protected forever from adverse zoning amendments because it relied on the approval and permit while they were valid. Given the extraordinary nature of Palatine’s claims, it is not surprising that there is no precedent on point.

Nonetheless, that a case is novel does not make it meritorious. A remand for factual findings on the extent of Palatine’s reliance would be appropriate only if reliance, if proven, could warrant the application of equitable estoppel. Under the facts of this case, no amount of reliance could change the fact that for Palatine to act in reliance on its belief that its preliminary site-plan approval and its building permit would protect Palatine from zoning changes forever was unreasonable.

V. Nonconforming Structure

Palatine urges that the entire building, both the existing and operating Section I and the unbuilt Section II, is protected from adverse zoning changes as a pre-existing nonconforming structure.

N.J.S.A. 40:55D-68 provides that “[a]ny nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the structure so occupied * * (emphasis added). The purpose of the statute is to balance the municipality’s interest in being able to amend its zoning ordinances with the property owner’s interest in maintaining the use and value of his or her property. Thus, the statute protects structures and uses that are already in existence at the time of the amendment, but it does not protect nonconforming structures or uses that do not yet exist and are merely planned or intended. The policy of the law is to restrict, rather than to expand, nonconforming uses; although they may be continued, they may not be enlarged or extended. Hay v. Board of Adjustment, 37 N.J.Super. 461, 464, 117 A.2d 650 (App.Div.1955).

The nonconforming uses and structures statute protects existing structures from changes in ordinances that render them nonconforming. That protection is permanent unless the nonconformity is abandoned by the owner. The statutes governing preliminary and final site-plan approval protect proposed structures from changes in zoning ordinances that render them nonconforming. That protection is limited in time by statute.

At the time of the zoning changes, at the time of the application for final site-plan approval, and at present, Section II was and is a proposed structure. However, because Palatine’s protection under the preliminary site-plan approval statute has expired, Palatine now seeks to extend the protection afforded by the nonconforming uses and structures statute to nonexistent structures. We reject that argument. To allow a planned structure to qualify as a nonconforming -structure before it is built would be contrary to the sound policy prohibiting enlargement or extension of nonconforming structures and uses. Moreover, extension of the nonconforming structure statute to structures in the planning stage is not necessary to protect the interests of developers. Developers’ interests are adequately protected by the statutory period of protection from zoning changes afforded by preliminary and final site-plan approval.

We find that Palatine’s building does not qualify as a preexisting nonconforming structure because it did not exist at the time of the passage of the relevant ordinances. We need not consider Palatine’s argument that it never abandoned its right to continue its nonconformity, because we find that a statutorily protected nonconformity never existed.

VI. Conclusion

For the foregoing reasons, the judgment of the Appellate Division is affirmed.

Chief Justice WILENTZ and Justices HANDLER and POLLOCK join in this opinion.

Justice STEIN has filed a separate dissenting opinion in which Justices CLIFFORD and O’HERN join.