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Gilsenan, LLP v. Home Depot USA, Inc.

A-929-01T1 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; SETTLEMENTS—Where an applicant and an objector reach an apparent settlement at a land use board meeting, it is not proper for the objector to pursue a court appeal of the resulting application approval.

A neighboring property owner appealed the granting of certain municipal planning board approvals. The “record amply support[ed] the conclusion that [the applicant’s] site plan proposal was in conformity with the Borough’s ordinances and the Municipal Land Use Law. Variances were needed only for the location of the loading dock and for certain signs.” The neighbor appeared with counsel at the public hearing and articulated only two concerns, one related to drainage and the other to access. The applicant’s attorney offered an opportunity for the objector to connect to the applicant’s drainage system, at the applicant’s cost, and offered access to the applicant’s parking lot. The objector appeared to be satisfied and there was an apparent settlement. Despite the apparent settlement, the objector brought a prerogative writ action “alleging a variety of new issues, including building height, lot coverage, and the quantity of planted areas.” Those arguments should have been raised at the hearing and the Appellate Division held that it was inappropriate to raise such additional items for the first time in the Law Division. In doing so, it stated that “[s]uch a tactic violates all the well-known principles designed to foster unitary decision-making and minimize fragmented litigation.” Further, the Court thought that “when settlements are reached they should not be the occasion for litigation unless the fact of the settlement is in issue or the implementation or terms of the settlement are disputed.” In this case, the applicant had every reason to believe that the objector’s concerns had been satisfactorily resolved and there was no evidence that the applicant had breached its agreement with the objector. The objector also argued that it should have had notice of a working session that preceded the actual hearing by about two months. New Jersey case law holds that where a working session of a planning board is “found to have been akin to an application hearing,” individual notice to adjacent land owners is required. Here, however, the Court was satisfied that there was no discussion of “issues of consequence” at the working session and therefore there was no substantive review of the applicant’s application. Consequently, on those facts, notice of the planning board’s working session was not required.

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