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Yadav v. Township of West Windsor

A-2329-04T3 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; ORDINANCES—Where a property owner has been granted a building permit for a use valid when granted, a municipality nevertheless has a right to adopt later zoning or other police power legislation restrictive of the enjoyment of the permit already issued.

In the early 1980s a developer purchased land and sought approval for a major subdivision. When its application was denied, it sued. That action resulted in the issuance of a consent order in 1983. Pursuant to that order, the developer submitted a new application, and in 1985, the municipality granted a preliminary approval. The developer appealed the 1985 resolution, but the lower court upheld the approval and two years later, with one minor modification, the Appellate Division affirmed. While the appeal was pending, the approval expired. The developer requested an extension as well as a stay from the courts, but those requests were denied. During the years that followed, the zoning ordinances changed substantially and the municipality would not grant approvals unless the developer sought appropriate variances. Instead, the developer, with many delays in between, filed numerous court actions. All of its court actions were unavailing. In this, the latest of the court actions, the Appellate Division denied relief to the developer, finding that “[i]t seem[ed] the various court rulings throughout the years have caused the [developer] some confusion regarding their opportunities under the initial 1983 consent order.” The Court took the “opportunity to expressly state that the judge below properly found that the town fully satisfied the 1983 order when it issued the conforming 1985 preliminary approval and that the approval expired after three years. Consequently the [developer] no longer [had] any right to develop their land in accordance with the 1983 consent order, the 1985 preliminary approval or the 1989 Appellate Division opinion affirming the approval with modification.” Most importantly, the Court pointed out that nothing in the consent order or the 1985 approval resolution “ever prevented [the municipality] from adopting new or different zoning ordinances” because “[a] municipality’s power to amend its zoning law is unquestioned. ... [W]here a property owner has been granted a building permit for a use valid when granted, the municipality nevertheless has a right to adopt later zoning or other police power legislation restrictive of the enjoyment of the permit already issued.”


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