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Rocky Hill Citizens for Responsible Growth v. Planning Board of the Borough of Rocky Hill

406 N.J. Super. 384, 967 A.2d 929 (App. Div. 2009)

ZONING; HISTORIC STRUCTURES; DEEMER PROVISIONS — Where a planning board and a municipality’s Historic Preservation Commission are one and the same, a zoning ordinance that deems that a developer who complies with the standards within the municipality’s historic district ordinance is also deemed to have complied with its zoning ordinance, is proper.

A planning board considered re-zoning certain areas of the municipality in a manner consistent with its master plan. A dispute arose between the planning board and a property owner with respect to the effect the re-zoning would have on the owner’s property by reducing its maximum permitted density. The planning board and property owner settled the matter. This resulted in a change to the zoning ordinance and the master plan, creating a new age-restricted residential zone that permitted an increase in density. The new zone was located within the municipality’s historic preservation district.

The owner then filed a development application. After six public hearings, the planning board approved the application and memorialized its decision in a resolution. Neighboring property owners filed suit challenging not only the planning board’s approval of the owner’s application, but also the revised zoning ordinance that had created the new age-restricted zone within the municipality’s historic preservation district. The zoning ordinance, which created standards for the construction of residential housing within the historic district, also contained a “deemer” provision. This provided that a developer who complies with the standards within the ordinance is deemed to have complied with the zoning ordinance. The neighbors argued that the “deemer” provision usurped the planning board’s authority under the Municipal Land Use Law.

The lower court found that the neighbors were required to challenge the validity of the zoning ordinance within forty-five days after publication of the resolution formally adopting the ordinance, and that their challenge almost two years later was untimely. It also found that the planning board’s approval of the project was proper. The neighbors appealed, but the Appellate Division affirmed. The Court noted that pursuant to Court Rule 4:69-6(c), any challenges to the validity of a zoning ordinance must be filed within forty-five days of its adoption. It rejected the neighbor’s argument that a court is permitted to enlarge the deadline. The Court noted that New Jersey Supreme Court decisions permitted a time extension to challenge a zoning ordinance in cases that involve: (a) important and complex constitutional questions; (b) informal or ex parte determinations by administrative officials; and (c) important public, rather than private, interests. In this case, the Court found that there were no constitutional questions involved, nor were there any public interests involved. Rather, the case involved a private interest dispute among a small number of residents living within several hundred feet of the proposed development. The Court also noted that the neighbors had slept on their rights with respect to their challenge of the validity of the zoning ordinance and had taken a “wait and see” approach. It rejected the neighbor’s claim that they could not foresee how the planning board would interpret the ordinance until a development application was filed.

With respect to the “deemer” provision, the Court noted a unique situation where the planning board in this particular municipality donned two hats, as its planning board and its Historic Preservation Commission. It found that the planning board’s authority was not usurped because the members had approved the “deemer” provision and had amended the master plan with full knowledge of the impact and relationship of the zoning ordinance, the master plan, and their role in the approval process.


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