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Moore Realty, Inc. v. Town of Hackettstown

A-3891-03T5 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; CONSERVATION EASEMENTS—It is unreasonable for a land use board to unnecessarily restrict use of an applicant’s property, such as by requiring a conservation easement, based on the possibility of future development.

A developer submitted an application to a local planning board seeking approval to subdivide two of its lots. The proposed lots conformed to the lot area and bulk requirements of the municipality’s Land Development Ordinance (LDO). No variances were required. Section 506 of the municipality’s code provided that all subdivisions and site plans should be designed to minimize the changes in existing grades and to preserve natural features. That section also required that all subdivision plans and other development plans identify and delineate all environmentally-critical areas, and be designed to protect and prevent disturbance of those areas during construction and subsequent use of the property. In its approval of the application, the board imposed a conservation easement to ensure the preservation of the natural resources in the area. The board did so because the slopes on the property, although not deemed to be critical by LDO, were fairly steep. The developer appealed and the lower court affirmed the board’s decision.

On appeal to the Appellate Division, the developer argued that there was no basis for imposing a conservative easement because there were no steep slopes under the LDO, no change of grade had been proposed, and no environmentally critical areas on the tract. The Appellate Division held that the board’s imposition of a conservative easement was an arbitrary and unreasonable use of its authority. It pointed out that the developer’s minor subdivision application involved no conditions requiring action by the Board pursuant to section 506 of the municipality’s code. Section 506 merely established guidelines for use in the consideration of land use applications and did not confer the authority to require an easement. The Court held that if the municipality wanted to confer the power on the board to create a conservation easement in such circumstances, it needed to do so through the proper use of its zoning authority. Here, the Court acknowledged that the board, in imposing the easement, had attempted to avert any potential drainage problems that could arise with a future application to subdivide the lots. But, according to the Court, this was unreasonable because it unnecessarily restricted the use of the property based on the possibility of future development when no conditions of concern outlined in section 506 actually existed. For those reasons, the Appellate Division reversed the decision of the lower court, and held that the conservation easement requirement was invalid.

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