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Rogers v. Holland Township Planning Board

A-1607-10T3 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; SUBDIVISION; EXTENSIONS — New Jersey law permits the expiration date of a subdivision’s approval period to be tolled when the approval is delayed due to litigation designed the public health and welfare.

Neighbors owned property that they purchased from a planning board applicant. Their land was contiguous to 110 acres owned by the applicant. The planning board approved the applicant’s subdivision into sixteen building lots. On September 1, 2004, other contiguous property owners filed a complaint in lieu of prerogative writs challenging the board’s approval (the Broadhurst litigation). A three year extension of final subdivision approval, beginning in August of 2008, was granted. The original approval had been granted in July of 2004. These neighbors claimed that the extension grant was improper since the final subdivision’s approval should have expired 95 days after the adoption of the 2004 approval resolution because the plat had not been recorded. The plat went unrecorded because the municipality wouldn’t sign it while the Broadhurst ligation was in process. It was signed in August of 2008.

The lower court noted that the relevant statute requires approved plans to be filed 95 days after signing of the plat. Since there was no signed plat, the 95 days never began to run. Further, the lower court gave deference to the municipality’s explanation that it was impractical to execute the plat while litigation was pending.

The challengers also argued that an approval extension was unwarranted because the approval could only be granted for up to three years. However, New Jersey statutes permit an approval period’s expiration to be tolled when the approval is delayed due to litigation designed to protect the public health and welfare. Since the relevant litigation related to a reduction in the width of an open space access easement and the adequacy of a storm water management plan, the litigation implicated the public welfare and satisfied the terms of the tolling statute. Thus, the lower court affirmed the board’s decision. The challengers appealed.

The Appellate Division affirmed the lower court’s decision, rejecting the challenger’s argument that the applicant’s failure to file a signed plat and submit the required performance bond in a timely fashion rendered the original approval null and void. There was no allegation that either the applicant or the board were motivated by any reason other than a well-founded belief that filing the approved plat and posting the necessary bonds while the Broadhurst litigation was pending would be unnecessary and imprudent. The Court agreed with the lower court and concluded that the board’s decision, first made in 2004, and made again in 2009, was within its discretion and did not warrant reversal. Furthermore, good-faith pursuit of litigation brought by an applicant equitably tolls the protection periods accorded by the extension statute.


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