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Ko v. The Township of Mendham Planning Board

A-4128-01T3 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; TIME OF DECISION RULE—When a board votes to approve a variance application subject to receiving a report on one or more open issues, that vote does not constitute a resolution that would shield the applicant from a subsequent change in the zoning ordinance; it is only an indication to the applicant that the other issues were satisfactorily resolved.

A developer sought to build single-family homes on twenty-seven acres of land. It submitted an application for preliminary major subdivision approval on the tract which the municipality “had previously agreed to rezone from a three-acre minimum lot size to a one-acre minimum as part of the settlement of Mt. Laurel litigation which [the developer] had commenced against the [municipality].” The year before that submission, the municipality’s zoning board of adjustment and planning board “had expressed concerns about the trend to place ever-larger homes on building lots within the municipality.” That concern was based upon the impact such large homes “had upon the ground water, as well as the fact that the construction of such homes had, in the recent past, led to the loss of several large specimen trees.” On January 17, 2001, all issues relating to the “application for preliminary major subdivision approval had been resolved, except for the impact, if any, of [the development] upon the adjoining waste water disposal system of [a neighboring development].” The planning board voted at that meeting to approve the application, subject to a report on this question. No resolution was ever adopted to that effect. On January 23, 2001, several days later, the municipality’s governing body introduced an ordinance establishing a floor area ratio. Several weeks later, it adopted the ordinance, approximately one week before the planning board received a report on the waste water impact. About a month later, the planning board “adopted a memorializing resolution for its conditional preliminary approval for this major subdivision.”

The developer then sued, alleging that the floor area ratio ordinance should not have applied to this particular project because the project had received its approval on January 17 and thus was entitled to protection for three years from changes to the zoning ordinance, such as the imposition of a more restrictive floor area ratio requirement. It argued to the Court that the Municipal Land Use Law (MLUL) distinguished between a “resolution” and a “memorializing resolution,” but the section of the MLUL that granted three years’ protection, referred only to a “resolution.” Under that theory, the developer argued that the “legislature intended a developer to be protected from the time of a Board’s vote as opposed to the time it adopts a resolution.” The Appellate Division disagreed. It ruled that on January 17, the board did nothing more than “indicate that the developer had satisfactorily dealt with the issues thus far considered, and while its vote was the equivalent of assuring the developer it would not revisit those questions, it should not be accorded any greater significance than that. Clearly, the question whether this project would impact the community’s ground water was a question of immense significance.” As a result, the Court considered the action taken on January 17 “to be no more than a tentative approval which conferred no vested rights.”

The developer also argued that the planning board impermissibly adopted a development condition requiring a developer to bear the entire expense of relocating some of the drainage beds that serviced the adjacent development. It argued that it should only be responsible for a fair share of the cost of those improvements under a particular statute that deals with allocating the costs of off-site improvements. The Court disagreed because it did not consider drainage beds for an adjacent development to be the kind of off-site improvement within the scope of the cited statute. It thought that the action of the planning board “was no more than a recognition that the [developer’s project] would generate a significant water flow that posed a risk to the adjoining property owners.” It also thought that “[i]f the developer created the risk, it [was] no more than fair to require it to alleviate the risk.”

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