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Kowitski v. Edison Township Planning Board

May 1, 2007

ROBERT KOWITSKI, PLAINTIFF-RESPONDENT,
v.
EDISON TOWNSHIP PLANNING BOARD, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-2614-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: April 17, 2007

Before Judges Axelrad and R.B. Coleman.

Defendant Edison Township Planning Board appeals from an order of February 24, 2006, in this action in lieu of prerogative writs, striking the condition imposed in the resolution approving the plaintiff's minor subdivision, which provided that plaintiff "not have a driveway from proposed lot B exiting on Edgewood Road." The court found that plaintiff had stipulated to this condition under duress following a motion by the Board to bar his application under the doctrine of res judicata and that he was severely curtailed in all attempts to argue against the application of the doctrine. The court further found the Board's improper utilization of res judicata, as well as its imposition of an impermissible condition, were clearly arbitrary, caprcious and unreasonable.

On appeal, the Board contends:

POINT I

THE TRIAL COURT ERRED WHEN IT DID NOT REMAND THE MATTER TO THE BOARD FOR A PUBLIC HEARING.

A. The court should have remanded the matter so the Board could take testimony and develop a factual record.

B. The court should have remanded the matter for the Board to reconsider the application in light of the Middlesex County Planning Board's denial of plaintiff's site plan application.

C. Remanding the matter to the Board would not have been an exercise in futility.

POINT II

THE TRIAL COURT ERRED WHEN IT STRUCK THE DRIVEWAY EASEMENT CONDITION FROM ...


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