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Vauxhall Associates v. The Manalapan Township Planning Board

A-4130-05T5 (N.J. Super. App. Div. 2007) (Unpublished)

ZONING; ORDINANCES —Where an ordinance is a direct result of a lower court’s zoning ruling while on appeal, the ordinance will not be retroactively applied to the application before the board.

A landowner wished to subdivide a flag lot into two. One part would become a smaller flag, and the remaining portion would be a rectangular parcel. The owner wished to build one single family home on each of the subdivided lots. A major concern discussed at the planning board hearings held to review the application was the owner’s plan for a cul-de-sac. Before the board completed its review, the applicant withdrew the plans upon its own engineer’s recommendation. The municipal engineer recommended that the board approve the application because the cul-de-sac was unnecessary. The board wished to rule on the viability of the modified flag lot and so did not discuss access options. The board ultimately denied the application, relying upon the municipality’s flag lot ordinance that the subdivision would violate the ordinance’s ten percent cap because fifty percent of the resulting lots would be flag lots. The board rejected the owner’s argument that the ordinance was inapplicable because the subdivision would not increase the number of flag lots on the site. It found that the owner failed to establish sufficient hardship for a variance. The board having rejected a variance application, did not reach the question of whether a cul-de-sac should be built. Following this denial, the owner filed suit.

The lower court granted summary judgment to the owner, stating that the board had misread and misapplied the flag lot ordinance to this matter where the applicant was reducing the size of an existing flag lot rather than creating any more flag lots. The lower court viewed the clear purpose of the ordinance to be the regulation of new flag lots in a subdivision, and not to prohibit the creation of two conforming lots from an existing previously approved flag lot with one lot retaining the existing flag lot configuration, and the other one completely conforming to all provisions of the ordinance. The board appealed further, and subsequently adopted a new flag lot ordinance which specifically provided that flag lots could not be further subdivided. The new ordinance stated that it was to be effective retroactively to all matters pending affecting flag lots before any forum.

The Appellate Division stated that the judiciary may review de novo legal interpretations of ordinances by municipal boards, especially decisions by planning boards. The Court agreed with the lower court that the original ordinance was intended to apply only to subdivisions that proposed newly created flag lots. Consequently, the board’s interpretation of the ordinance was unreasonable in that light. Applying equitable principles, the Court also ruled that the new ordinance could not retroactively apply to this application because the amended amendment was the direct result of the lower court’s ruling while on appeal.

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