On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket Nos. L-71-04 and L-334-06.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2008
Before Judges Skillman, Collester and Grall.
This is an appeal from a final judgment entered on March 15, 2007, which dismissed plaintiff's complaint challenging the land use approval issued by defendant Land Use Board of the Township of Wantage to defendant B. Robert McEwan.
On May 10, 2003, the Land Use Board adopted a reexamination of its master plan. Among the stated goals of the Master Plan was to maintain the Township's rural character.
On May 29, 2003, the Mayor and Council of Wantage Township introduced Ordinance 2003-07, under which the zoning ordinance would be amended to implement the new master plan. After a hearing, the Mayor and Council adopted the ordinance on June 26, 2003, with an effective date of August 15, 2003. One of the changes in zoning provided under this ordinance was an increase in the minimum lot size in the R-1 zone from 40,000 square feet to five acres.
Four days after the adoption of this new zoning ordinance, McEwan, the contract purchaser of a thirty-one acre parcel of land in the R-1 zone, applied to the Land Use Board for a subdivision approval. McEwan proposed the consolidation of two existing lots and the subdivision of the resulting combined lot into four new lots. Two of those proposed new lots were less than five acres.
McEwan applied for bulk variances from the lot width requirements provided under the former zoning ordinance for the two proposed larger lots, which are flag lots.*fn1 However, he did not apply for a variance from the five-acre minimum lot size requirement established by the new zoning ordinance as applied to the other two lots, one of which is 2.44 acres and the other of which is 4.24 acres.
On August 12, 2003, three days before the effective date of the new zoning ordinance, the Land Use Board approved McEwan's subdivision application. The Board did not adopt a resolution formalizing this approval until more than three months later, on November 25, 2003.
Thereafter, plaintiff, the owner of a property adjoining the McEwan property, brought this action in lieu of prerogative writs challenging the Land Use Board's approval of McEwan's subdivision application. Plaintiff claimed, among other things, that McEwan's proposed subdivision was subject to the provisions of the new zoning ordinance, including the requirement of a five-acre minimum lot size, and that McEwan had not obtained variances from that requirement.
This case has had a protracted and convoluted procedural history, which it is unnecessary to recount in order to decide this appeal. Suffice it to say that the trial court rejected all of plaintiff's arguments regarding the subdivision approval granted to McEwan, including the argument that under the "time of decision" rule McEwan's application should have been reviewed under the provisions of the new zoning ordinance.
We conclude that McEwan's subdivision application was governed by the new zoning ordinance and therefore it could not be approved unless he established his entitlement to variances from the requirements of that ordinance, including the five-acre minimum lot size requirement. Consequently, we reverse the judgment of the trial court ...