Skip to main content



D.L. Real Estate Holdings, LLC v. Point Pleasant Beach Planning Board

A-4833-00T5 (N.J. Super. App. Div. 2002) (Unpublished)

ZONING; APPROVALS; EXPIRATION— A New Jersey statute give preliminary site plan approvals a perpetual life with a limited period of statutory protection from changes in zoning law.

By resolution, a municipal planning board granted preliminary major subdivision and bulk variance approval to an owner to subdivide three parcels of land into fourteen single-family residential lots. Five years later, the owner of the land petitioned the planning board for final major subdivision approval. At a hearing, the planning board concluded that “the preliminary subdivision approval has expired” and denied the owner’s application. The planning board relied on a municipal ordinance which requires that “a final plat shall be submitted to the administrative officer within three years after the date of the preliminary approval or extension.” The planning board also relied on language contained in the resolution that “approval shall expire one-hundred and ninety (190) days from the date this Board took action.” On these bases, the planning board concluded that the applicant was “out of time.” The owner filed a complaint alleging that the ordinance and the language in the resolution were ultra vires and void under the Municipal Land Use Law (MLUL) as a matter of law. The lower court held that the ordinance was valid and in furtherance of a legitimate public policy. The owner appealed. The Appellate Division concluded that the ordinance and the language in the resolution were “invalid and ultra vires” and reversed the lower court’s holding. The Appellate Division began by recognizing that the “MLUL was enacted, at least in part, to standardize the procedures employed by municipal planning boards.” The MLUL provides that “a municipal ordinance shall, among other requirements, include provisions not inconsistent with other provisions of this act, for submission and processing of applicants for development.” The Appellate Division also recognized that although the MLUL provides that “preliminary subdivision approvals confer certain rights upon the applicant for a period of three years ... from the date of the preliminary approval,” this provision is “limited to ordinances that affect health and safety rather than temporal restrictions.” It also relied on Palatine I v. Planning Board of the Township of Montville, 133 N.J. 546 (1993) which concluded that “N.J.S.A. 40:55D-49 gives preliminary site plan approvals perpetual life with a limited period of statutory protection from changes in the zoning laws.” On these bases, the Appellate Division concluded that “under the MLUL, preliminary approvals do not lapse.” It further held that “if a municipality is concerned about dormant approvals which may no longer further the municipalities’ land use objectives, it is that municipality’s responsibility to amend its zoning laws to effectuate the change in land use and development.”


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com