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Figa v. Planning Board of the Township of Raritan

HNT-L-281-09 (N.J. Super. Law Div. 2010) (Unpublished)

ZONING — Where one co-applicant for a major site division approval is the owner of most of the property in question, and that co-applicant does not wish to pursue the application, it has no obligation to do so even though the enabling statute would seem to allow the minority co-applicant to proceed because it would be illogical to impose the result on the owner of most of the land in question.

An applicant challenged a municipal planning board’s denial of its application for preliminary major subdivision approval. The applicant owned six acres of property, which, together with 49 acres owned by a co-applicant, would have been used to create 24 single family homes. The applicant argued that the application met all appropriate standards for the subdivision and that the planning board resolution which claimed it had discretion to deny the subdivision was unlawful.

After the planning board denied the application, the co-applicant-owner of 90% of the land subject to the subdivision application decided not to proceed with the appeal. The applicant sued it co-applicant for breach of contract, but the lower court dismissed the claim, finding that the contract only required the co-applicant to diligently pursue the initial application but did not obligate it to pursue an appeal if the application was denied. The applicant still prosecuted its appeal of the denial of the subdivision application.

The lower court noted that, on a substantive basis, the applicant’s claims had merit. It noted that the ordinance’s language was too vague. However, the lower court agreed with the co-applicant’s argument that the applicant lacked standing to appeal the denial of the subdivision approval without its involvement. The co-applicant argued that the applicant was not the developer of the property because it owned only six out of the 55 lots that were subject of the application. Further, even if the appeal were successful, the co-applicant argued that it had no obligation to pursue the development once the initial application was denied nor did it have the desire to pursue the development.

The lower court agreed, finding that, under these circumstances, a successful appeal by the applicant would have no impact because the co-applicant elected not to pursue the subdivision development. Further, the Court noted that even though the statute, N.J.S.A. 40:55D-4, gave standing to any land proposed to be included in a proposed development, including the applicant’s property, the applicant’s interpretation was illogical. The Court found it hard to imagine that the legislature intended to permit the owner of six of the lots to litigate over the objections of the owner of the other 49 lots.


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