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Ferraro Builders, LLC v. Borough of Atlantic Highlands Planning Board

A-5498-00T1 (N.J. Super. App. Div. 2002) (Unpublished)

ZONING— A developer who has obtained subdivision approval may not thereafter argue that the separateness of the lots should be ignored when a later adopted steep slope ordinance adversely impacts one of the lots, but would not have done so if the subdivision had not taken place.

A developer applied to a municipal planning board for, and was granted subdivision approval to convert its property from a single lot into three lots. After the subdivision was perfected, but before the developer began building houses on its lots, the municipality enacted a “Steep Slope” ordinance that regulated the soil disturbance that would arise from construction along certain slopes. The developer then built houses on two of its three lots. When it sought to develop the third lot, the municipality denied it a slope permit because the area of disturbance over the lot exceeded the maximum allowable under the ordinance. The developer claimed that the municipality should have taken into account the total area of the lot and one of its other lots in calculating the area of soil disturbance. When the municipality rejected its argument, the developer sued, claiming that the slope ordinance was unreasonable, arbitrary, and capricious. It also claimed, in the alternative, that the slope ordinance was an unconstitutional taking without compensation. The lower court rejected both claims. On appeal, the Appellate Division affirmed the lower court’s decision. It noted that, in the process of developing its lots and building the houses, the developer was aware of the slope ordinance and its potential impact on its development plans. Any hardships it faced were self-imposed and could not be the basis of relief from the slope ordinance. The Court also rejected the developer’s argument that a taking occurred. The developer claimed that, as a result of the municipality’s enforcement of the slope ordinance, it would be required to build on an undersized lot in violation of the zoning ordinance. The Court noted that the taking issue could not be raised until the developer applied for, and was denied, a variance to build on a smaller lot.


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