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Toll Bros., Inc. v. Planning Board of the Township of Pohatcong

April 17, 2003

TOLL BROS., INC., AND MARTIN RESNICK, PLAINTIFFS-RESPONDENTS,
v.
THE PLANNING BOARD OF THE TOWNSHIP OF POHATCONG, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Warren County, Law Division, L-512-00.

Before Judges Conley, Newman and Carchman.

The opinion of the court was delivered by: Conley, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 26, 2003

Defendant Planning Board of Pohatcong (Board) appeals an order entered in plaintiff developers' *fn1 in lieu of prerogative writs litigation directing the Board to hear their final subdivision application and render a decision thereon. We affirm.

In June 1993 a 122 single-family home preliminary major subdivision approval was granted for plaintiffs' 84-acre parcel in Pohatcong. Three one-year extensions permitted by the Municipal Land Use Law, N.J.S.A. 40:55D-49d, for protection from new zoning changes were granted by the Board. A fourth extension was denied. As a result, the statutory protective period expired June 27, 2000. On June 6, 2000, the Township of Pohatcong amended its zoning ordinance. The amendment substantially affected the subject property in that, whereas the old ordinance permitted minimum lot size of 10,800 square feet with cluster development, the new ordinance requires five-acre minimum lots.

However, on April 21, 2000, and thus prior to the expiration of the protective period, an application for final subdivision approval was submitted to the Board. The Township Engineer deemed the application incomplete as a result of which the time period within which the Board must hear and decide the matter or have the application deemed approved did not begin to run. See N.J.S.A. 40:55D-10.3; N.J.S.A. 40:55D-50. Plaintiffs disagreed.

The record reveals no Board action on the application or any resolutions in connection therewith. Rather, what seems to have occurred is that prior to an adjourned date for a hearing on the matter, and after the Board had denied the fourth extension of the preliminary subdivision approval (for which there is a resolution), the Board's attorney advised plaintiffs of his opinion that the new zoning provisions applied to the development, that a variance pursuant to N.J.S.A. 40A:55-70d from the new lot size requirement was required, *fn2 and that the Board, therefore, had no jurisdiction to consider the final subdivision application.

Plaintiffs filed their complaint in lieu of prerogative writs raising several issues, including the Board's non-action on the final subdivision application and seeking an order directing the Board to hear the application. On plaintiffs' motion for summary judgment on that issue, the motion judge remanded the matter to the Board, directing it "to hear, consider and render a decision on [the] application for final major subdivision approval . . . ."

On appeal, the Board argues:

POINT I THE MUNICIPAL LAND USE LAW DOES

NOT EXTEND THE PERIOD OF PROTECTION FROM ZONING CHANGES AFFORDED A PRELIMINARY MAJOR SUBDIVISION APPROVAL UPON THE MERE FILING OF AN APPLICATION FOR FINAL APPROVAL.

POINT II ASSUMING THAT A SUBMISSION

PURSUANT TO SUBSECTION B OF N.J.S.A. 40:55D-49 ACTS TO EXTEND THE PERIOD OF PROTECTION GRANTED IN SUBSECTION A OF THAT STATUTE, THE SUBMISSION MUST BE IN THE FORM OF AN APPLICATION THAT IS DEEMED COMPLETE PRIOR TO THE EXPIRATION OF ...


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