On appeal from the Superior Court, Law Division, Atlantic County.
R.s. Cohen, A.m. Stein and Kestin. The opinion of the court was delivered by R.s. Cohen, J.A.D.
Defendant Planning Board refused to extend municipal approvals for a development project or to toll the period of approval. The Law Division upheld the decision of the Planning Board, and plaintiffs appealed. We affirm.
Plaintiffs own property in Brigantine in a zoning district that permits multi-family uses. The property is occupied by 24-28 rental units in a former motel. Former owners obtained approvals from the Board of Adjustment on June 8, 1988 to build a 16-unit condominium complex on the property. The approvals included site plan approval, a density variance permitting 16 instead of 12 units, and bulk variances for lot area, depth, front and rear setback, and site coverage.
Plaintiffs contracted to buy the property on October 1, 1988. Two days later, Governor Kean signed a Certification of Imminent Peril making immediately applicable to plaintiff's property a set of proposed regulations extending DEP's (now DEPE) review authority over development projects near the shore. The regulations were later adopted by DEP but were ultimately invalidated. See Last Chance Dev. Project v. Kean, 119 N.J. 425, 575 A.2d 427 (1990). Meanwhile, however, plaintiffs bought the property in late November 1988 and were involved in the permit application and approval process from February 5, 1989 until June 1989.
Two other events also occurred. The first was a January 1989 municipal zoning ordinance amendment reducing the maximum permissible height of buildings in the district from 45 to
either 30 or 35 feet.*fn1 Application of the amendment to plaintiffs' project would significantly reduce the number of buildable units. The other event was the collapse of the real estate market, and the resulting absence of demand for new condominium residences.
Plaintiffs' site plan approval protected them against ordinance changes for two years, to June 8, 1990. N.J.S.A. 40:55D-52a. As that date approached, it was apparent to plaintiffs that they could not get started before the deadline. The project was not viable while the condo market in Brigantine was glutted with 360 unsold units.
Plaintiffs applied to defendant Planning Board for a ruling that its two-year approval period was suspended or tolled, pursuant to N.J.S.A. 40:55D-21, from the date of the Governor's emergency Certification until plaintiffs received their DEP permit eight months later. The Planning Board decided on March 28, 1990 to extend the approval for only four of the eight months, to October 8, 1990.
In September 1990, still not ready to proceed, plaintiffs returned to the Planning Board and sought the additional four months they were previously denied, and also a one-year extension pursuant to N.J.S.A. 40:55D-52a. The Planning Board denied both forms of relief.
In a thorough written opinion, Judge Louis F. Hornstine affirmed both decisions of the Planning Board. We affirm substantially for the reasons stated by Judge Hornstine. We particularly note three salient elements of the case that properly affected the outcome. The first is that, although the record is unclear exactly how much time plaintiffs actually lost by reason of the unexpected DEP review process, it certainly was less than eight ...