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Township of West Milford Planning Board v. TCR NJ/PA Land Acquisition L.P.

A-2573-06T5 and A-2587-06T5 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; SITE PLAN — If an applicant’s final site plan is substantially similar to an approved preliminary plan, a municipal land use board is statutorily required to approve the final plan.

A developer purchased a twenty-seven acre property. It sought to build a townhouse development there. The previous owner had received approval and two subsequent extensions for the construction of a 109-unit townhouse development. Six months after the developer purchased the property, the state legislature passed water protection and planning statues. These banned development in certain areas, including on the developer’s property. The developer, however, was exempt from the law because preliminary approval for development of the property had previously been granted. The exemption had an expiration date. The developer amended its application for final site plan approval. In it, it reduced the number of residential units requested and increased the number of planned parking spaces, and cut the percentage of impervious coverage.

Experts for the developer testified before the planning board regarding the landscaping and design of the proposed development as well as about utilities and sewage issues. The board also heard testimony from opponents of the developer’s plan, some of whom raised concerns about the water supply. After the hearings, instead of rendering a decision, the board sued the developer, requesting a determination as to whether it had jurisdiction to approve the developer’s plan. The board denied approval after the lower court twice remanded the matter for a more specific determination. It issued its findings of fact and conclusions of law to support its denial of the plan.
The developer challenged the planning board’s denial of its application before the lower court. It reversed the board’s decision. On appeal, the Appellate Division pointed out that if an applicant’s final site plan is substantially similar to an approved preliminary plan, a municipal board is statutorily required to approve the final plan. It agreed with the developer that the changes made in its amended application did not drastically alter the site plan and that the final site plan was substantially similar to the preliminary plan. It added that the board never expressly indicated any way in which the final site plan might have significantly differed from the preliminary plan. Based on its findings and conclusions, the Court affirmed the lower court’s reversal of the board’s denial of the site plan application.


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