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Bell v. The Hopewell Township Planning Board

A-3446-07T2 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; QUID PRO QUO ARRANGEMENTS —A zoning action does not constitute an improper quid pro quo arrangement where the exaction from the applicant, imposed as a requirement of granting land use approvals, is related to legitimate land use concerns generated by the application and the amount of such exaction is not arbitrary.

A developer purchased fifty acres of farmland. It sought site plan and subdivision approval into ten residential lots and a thirty-four acre parcel devoted to open space. After review by the municipality’s environmental committee, the proposal was revised to provide for an environmentally-sensitive portion of the thirty-four acre lot to be conveyed by the developer to the municipality for use by the public. The planning board approved the proposed site plan conditioned upon the developer dedicating a twelve acre portion of the property for public recreation. Various individuals opposing the site plan approval sued the municipality.

The lower court upheld the planning board’s determination, and rejected the argument that illegal contract zoning had occurred, finding that the requirement that a portion of the parcel be conveyed to the municipality did not constitute an illegal quid pro quo arrangement. The lower court also ruled that the developer benefited financially from the municipality’s willingness to accept the land because the municipality accepted future on-going responsibility to main the open space. Thus, it distinguished this case from previous New Jersey quid pro quo decisions where the landowner did not directly benefit from the contribution. The objectors appealed this ruling.

The Appellate Division affirmed the lower court’s decision, finding that the grant of variances and the developer’s contribution did not create an illegal quid pro quo arrangement was tantamount to a sale of variances. It also distinguished this situation from another case where the developer’s contributions were unauthorized by statute and thus were voided, even though the approvals were upheld. The Court viewed the critical issue as being whether the illegal exaction constituted a blatant quid pro quo arrangement for the approval in circumstances where the exaction is unrelated to any legitimate land use concerns generated by the development application and the amount thereof is entirely arbitrary. Here, the Court stated that both the developer and the municipality benefited from the transfer. Moreover, because no variances were required for the homes themselves, the Court found that the grant of variances could not be seen as constituting a quid pro quo exaction for the land dedication. Further, the Court rejected the argument that the land use approval constituted contract zoning. Contract zoning represents an attempt by a municipality, by contract with a property owner, to authorize the owner to use its property in contravention of the zoning ordinance and without complying with the statutorily established procedures for obtaining a zoning variance. Here, the Court held that the use was permitted by the zoning code, and no variances were required except to subdivide the thirty-four acre lot to allow the transfer of a portion of the property to the municipality.

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