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Price v. Martinetti

421 N.J. Super. 290, 23 A.3d 483 (App. Div. 2011)

ZONING; VARIANCES; MLUL — There is nothing in the Municipal Land Use Law that says a property owner who has obtained variances required for one form of development loses the benefits of those variances simply by obtaining different variances required for a different form of development.

A municipal zoning board granted a developer’s application for site plan approval and granted the associated variances required for construction of an apartment building. No action was taken to challenge that decision. The developer then took steps to proceed with the construction of the apartment building in accordance with the approvals. It then decided to change its development plan and looked for approval for construction of a much larger apartment building. The developer had to acquire additional adjacent lots to increase the size of the site. It applied to the board for the new site plan and variance approvals required to build this larger apartment building. The board granted this application, and a challenger brought an action seeking to set aside the new set of approvals.

A lower court invalidated the approvals and the developer decided to change the plans again. It prepared a revised plan for a larger apartment building, but not one as tall as the earlier one. The developer applied to the board for the site plan and variance approvals and the board granted this latest application. The challenger again brought an action challenging the approvals. This time, a lower court rejected the challenge and affirmed the board’s grant of the land use approvals. The challenger appealed further, and the Appellate Division then reversed the lower court’s decision and invalidated the approvals.

Then, the developer decided to abandon all plans for construction of a larger apartment building and decided to revert to its original construction plan. The challenger again sued seeking to stop the construction of the original apartment building design. It argued that the developer had abandoned the land use approvals for construction of the original apartment building by applying for and obtaining approvals for a larger apartment building. The lower court concluded, on the merits, that the developer had not abandoned the land use approvals it had initially obtained. The challenger’s complaint was dismissed.

The challenger appealed the latest ruling. The Appellate Division found that there were communications between the developer and municipal officials showing their common understanding that the approvals for the original apartment building were still in effect and that the original development project could be pursued if the developer was unable to proceed with the larger apartment building. There was a certification and memorandum that reflected that the permits for continued construction of the smaller apartment building remained valid.

The Court looked to the provisions of the Municipal Land Use Law’s (MLUL) relating to site plan and variances. The MLUL allows a zoning board to combine the normal two step process into a single proceeding at which a developer is simultaneously granted both preliminary and final site plan approvals. This zoning board had done so, and there is no express authorization under the MLUL for a board to condition the grant of site plan approval upon a developer agreeing to abandoning a previously granted approval for the same site. The board never imposed such a condition on the developer.

There is nothing in the MLUL that says a property owner who has obtained variances required for one form of development loses the benefits of those variances simply by obtaining different variances required for a different form of development.

Thus, the Court held that the subsequent land approvals for a development site do not result in an automatic rescission of any prior approvals unless the subsequent approvals were conditioned upon such rescission. The law wants to encourage the most appropriate use of land. Therefore a developer should not be precluded from seeking the approvals required for alternate forms of development that it might consider more productive.


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