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Tanenbaum v. Township of Wall Board of Adjustment

407 N.J. Super. 371, 971 A.2d 430 (App. Div. 2009)

ZONING; MOUNT LAUREL — Even though a Mount Laurel consent order may allow a developer to subdivide into smaller lots than the zoning law would otherwise permit, an individual purchaser of a lot within a contemplated area does not automatically get the benefit of the less restrictive zoning provided for under the consent order.

A developer filed a builder’s remedy suit alleging that a municipality failed to meet its Mount Laurel obligations to provide affordable housing. The developer and municipality entered into a settlement agreement and consent order. As part of the settlement, the municipality re-zoned the developer’s property which had been located in an R-60 zone requiring a minimum lot size of 60,000 square feet, to one that permitted smaller lot sizes of not less than 25,000 square feet. The municipality’s planning board then adopted a fair share plan that satisfied the municipality’s Mount Laurel obligations and a judgment of repose was entered.

A lot was purchased by homeowners, who then proposed to subdivide it into two smaller lots. The zoning board determined that the homeowners’ application would be held to the R-60 zone requirements, and that the plans had to identify all bulk variances that would be needed. Instead of proceeding with their application, the homeowners but challenged the zoning board’s application of the R-60 zone requirements. The lower court found that since the homeowners’ proposed development was not for Mount Laurel purposes, the builder’s remedy settlement that permitted smaller lot sizes was inapplicable and the application had to be based on the R-60 zone requirements. The owners and the municipality appealed.

The Appellate Division affirmed, rejecting the homeowners’ argument that the zoning board did not have the authority to grant or deny relief from the zoning ordinance since theirs was a builder’s remedy consent order affecting the property. The Court noted that the consent order provided the basis for the current zoning ordinance. It found that the zoning board acted properly by only interpreting the zoning ordinance, and not the settlement agreement. The Court also rejected the homeowners’ argument that the smaller lot provisions of the builder’s risk settlement applied to their property even though the owners were not developing Mount Laurel affordable housing.

With respect to the municipality’s challenge, the Court rejected the municipality’s argument that the lower court should not have ordered the homeowners to resubmit their application to the zoning board without seeking to modify the consent order. The municipality argued that since the property was part of the parcel subject to the settlement agreement, the homeowners needed to apply to have the settlement modified before they could apply for a variance with the zoning board. The Court disagreed. It found that the settlement agreement and consent order between the developer and the municipality did not restrict third-parties from applying for a variance from the non-Mount Laurel provisions of the zoning ordinance.

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