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Janovic v. Mayor and Council of the Borough of Saddle River

A-4624-02T3 (N.J. Super. App. Div. 2004) (Unpublished)

SOIL RELOCATION; ZONING; CONDITIONS—A municipality can’t use its soil relocation ordinance to impose zoning variance-like conditions on a property owner.

A landowner’s parcel of land extended across two separate municipalities. The owner proposed to demolish an existing house located in one municipality, and to build a larger structure in the other. Since the only road frontage for the parcel was in the first municipality, access from the house would be by way of a driveway from the second into the first. The construction activity required removal of 608 cubic yards of soil, triggerng the second municipality’s soil relocation ordinance. Under the ordinance, applications to remove more than 500 cubic yards of soil had to be presented to the planning board which would decide whether to make a recommendation to the mayor and council.

During its hearings, the board realized that if, in the future, the owner were to sell its land in the first municipality, the house and lot in the second municipality would become non-conforming because it would have neither sufficient front yard setback nor any road frontage. The owner assured the board that it did not intend to sell this part of their land. However, it was unwilling to agree to the board’s request for a deed restriction prohibiting such a separate sale. Despite that refusal, the board recommended issuance of the soil relocation permit, subject to certain conditions, and the governing body accepted the recommendation. Those conditions included a requirement for a landscaping buffer for the entire perimeter of the property, and a requirement that no sale of any portion of the combined lot could take place without municipal approval.

The owner challenged the municipality’s authority to attach such conditions. The lower court held that the second municipality had no jurisdiction to direct the owner to maintain a buffer on the land within the first municipality. It also modified the deed restriction in two ways by requiring: (a) the second municipality’s approval of any subdivision, and; (b) that the owner get whatever variances were needed even before such a sale could close.

On appeal, the owner argued that the lower court exceeded its authority when it ordered the modified deed restriction. The Appellate Division agreed, holding that the second municipality had no authority, in connection with an application for a soil relocation permit, to impose such land use requirements on the property. The application before the planning board and governing body related only to soil relocation. Therefore, any conditions for the issuance of a soil permit had to relate to that topic. Accordingly, the Court reversed the lower court’s decision and held that the lower court’s modification was likewise deficient because it was not aimed solely at the soil relocation issue.

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