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MacElree v. Township of Middle Zoning Board

A-3348-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; CONSOLIDATION — The consolidation of existing lots, without the creation of new streets, is not considered a subdivision.

A property owner built twenty-five residential homes near a coastal area. Later, it sought to build housing on its remaining undeveloped eleven lots. Prior the property owner’s purchase of its property, the property was being prepared for construction at the same time that statutes regulating development near coastal areas were enacted. Since the construction preparation already had begun, the property was exempt from the statutes’ provisions. The municipal planning board approved the preliminary plan site, contingent on the availability of public water and sewage lines. A sewer system was later installed with the approval of the New Jersey Department of Environmental Protection (DEP) under the coastal protection statutes. When the property owner sought to build on the remaining eleven lots, the DEP told the property owner that its property would remain exempt from the coastal protection statutes for another five years on the condition that only seven houses would be build instead of eleven.

The municipality’s zoning officer issued zoning permits for the property owner’s revised proposal to build six homes on nine of the lots. At the zoning board hearing that followed, the proposal was challenged by three objectors, but the board approved the zoning officer’s decision. The objectors then sued to challenge the decision. Because the objectors’ action also included a number of claims against state and municipal agencies, the matter was transferred to the Appellate Division. A number of the claims were dismissed on the basis that they were barred by a previous consent order that had resolved previous claims brought by the objectors. The remaining claims were remanded back to the lower court which then dismissed them.

On further appeal, the Appellate Division rejected the objectors’ argument that because a reestablished boundary line between the high water line and the property reduced the size of the property, eight of the remaining lots no longer met the minimum lot size requirement of the zoning ordinance. The Court pointed out that the zoning board had approved merging the eight non-conforming lots into four conforming lots and disagreed with the objectors that an application for a re-subdivision of the property was required for the mergers. In addition, the Court pointed out that if the existing lots were consolidated but no new streets were created, this was not considered a subdivision. The objectors’ argument that the proposed sewer line hook-up violated a municipal resolution prohibiting permits for sewer lines in, or within fifty feet of, a wetland was also rejected. The Court found that the zoning ordinance was preempted by New Jersey’s freshwater protection statutes and the subject matter was delegated to the DEP. It also found, in agreement with the lower court, that claims regarding earlier subdivision approvals were barred by the previous consent order. Based on its findings and conclusions, the Court affirmed the board’s approval of the property owner’s application.


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