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Hall v. Township of Middletown Planning Board

A-6231-07T2 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; SETTLEMENTS — A land use board may settle a pending action if the settlement terms are subject to a public hearing and a public vote.

A property owner sought minor subdivision approval for a residential parcel overlooking a river. The proposed subdivision did not interfere with the existing view of the river and each of the proposed lots was more than double the required minimum acreage. The smaller lot was a flag lot containing a small cottage. A “flag lot” is a rear lot with a narrow corridor running alongside the front lot which permits access to a roadway. The property owner also sought a frontage variance. An owner of adjacent property was the sole party opposing the subdivision. The zoning board initially denied the application, and the applicant brought an action in the Law Division challenging the board’s decision. While this action was pending, the board entered into a settlement agreement with the property owner and approved the subdivision and variance request subject to certain conditions contained in the settlement agreement. The board stated that “[i]f we made a mistake, we are not required to try the case to prove that we were stupid.” The Law Division affirmed the board’s decision holding that the board may settle a pending action if the settlement terms are subject to a public hearing thereon and a public vote. The lower court also ruled that the restrictions contained in the settlement were not part of the original application and were thus different from the original application. The owner of the adjacent property objected to this determination.

The Appellate Division affirmed for substantially the same reasons held by the lower court. It held that to review the substantive merits of the variances would be to function as a “super zoning legislature” in contravention of New Jersey policy.


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