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Widgeon Point Preservation Association v. Broadmoor Properties, Inc.

A-4437-06T3 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; APPROVALS; TOLLING — An applicant for subdivision approval can be exempted from zoning changes by tolling the period in which the then-current zoning ordinances apply while the applicant seeks approval from other governmental agencies because such tolling periods are statutorily permitted if a legal action is pending and objectors have prevented the applicant from proceeding with its plans.

A developer sought permission from a municipality to subdivide two existing tax lots into three lots each for the construction of a single-family house on each resulting multi-acre parcel. The board granted permission with conditions pertaining to environmental impact. A preservation association sued, challenging the approval. Following the lower court’s affirmation of the board’s decision, the developer sought to build on one lot and to subdivide the other lot into three lots, one for the construction of a residential property and the other two which were to be deed-restricted from development. The board agreed to exempt the developer from zoning changes for one year while the developer continued to seek approval from the New Jersey Department of Environmental Protection (DEP).

After the developer obtained approval from the DEP, the board adopted a resolution approving changes to the original subdivision approval. Specifically, it approved the developer’s proposal to subdivide the one lot and found that the developer had satisfied the DEP’s wetlands provisions. The board also found that the developer complied with the necessary conditions on the other lot for the construction of a single-family house. The preservation association brought another action against the developer. Again, the lower court upheld the board’s decision and found that the board properly exempted the developer from zoning changes while the developer was obtaining DEP approval and that the board properly concluded that the conditions on the original approval of the plan did not apply to the two deed-restricted lots.

The group appealed, and on appeal, the Appellate Division found that the board had properly exempted the developer from zoning changes by tolling, or extending, the period in which the then-current zoning ordinances applied while the developer sought approval from the DEP. It pointed out that such tolling periods were statutorily permitted if a legal action was pending and that the preservation association’s initial action constituted such an action which prevented the developer from proceeding with its plan. The Court also pointed out that but for the first action brought by the association, the developer was ready to proceed with construction but that the litigation further delayed the developer’s ability to begin. On that basis, the it held that the lower court properly concluded that the board’s decision was not arbitrary, capricious or unreasonable.

The Court further found that, contrary to the preservation association’s argument, the board had properly excluded the conditions on the two lots that were deed-restricted from residential development because the developer was not required to obtain approval from the DEP for the two lots since it did not intend to build on them. It also found that the board had properly waived a letter of intention, which was required under the DEP’s wetlands provisions for the proposed subdivided lot. The Court rejected the association’s argument that there were no changed conditions that would have allowed the board to remove the conditions placed on the deed-restricted lots and found that the developer’s revised proposal for only one house to be built on the lot proposed for subdivision constituted a changed condition. In sum, the Court affirmed the lower court’s finding that the board’s decision was not arbitrary, capricious or unreasonable.


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