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Tanenbaum v. Township of Wall Board of Adjustment

May 27, 2009

STEVEN M. TANENBAUM AND DEBORAH DEL NOBILE TANENBAUM, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF WALL BOARD OF ADJUSTMENT AND TOWNSHIP OF WALL PLANNING BOARD, DEFENDANTS-RESPONDENT.
TOWNSHIP OF WALL, INTERVENOR-RESPONDENT/CROSS-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-1049-06, whose opinion is reported at __ N.J.Super. ___ (Law Div. 2009).

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted December 17, 2008

Before Judges Rodríguez, Payne and Newman.

Plaintiffs, Steven and Deborah Tanenbaum, homeowners in a Mount Laurel*fn1 development constructed pursuant to the settlement of a builder's remedy suit, sought to subdivide their property. They appeal from a trial court determination that they were not entitled to utilize the small-lot zoning applicable to the developer in connection with the initial development, but instead were bound by the alternative large-lot zoning otherwise applicable to the area.

Intervenor, Township of Wall, cross-appeals from the court's determination that plaintiffs could return to the Board of Adjustment to seek a variance from the large-lot zoning that the judge found to be applicable to them.

I.

In the late 1980s and in the wake of the Supreme Court's decision in Mount Laurel II, the Township of Wall became the subject of several builder's remedy lawsuits brought by developers, including Lions Head Holding Corporation, alleging that the Township had failed to meet its affordable housing obligations. The Township settled with Lions Head, entering into a consent order of settlement on October 24, 1988. Under the terms of the consent order, the Township agreed to rezone the subject property to permit lot sizes of not less than 25,000 square feet, whereas a 60,000 square foot lot size was required by standards governing the otherwise-applicable R-60 Zone, and to encourage the Planning Board to approve the subdivision of the property to permit the creation of 206 lots. The developer, in turn, was required to pay the Township $300,000 plus $10,000 per unit over 103 units. The order further provided that "all rights and duties created by this agreement . . . shall bind any successors and/or assigns." A supplemental consent order was filed on March 3, 1989.

In accordance with its agreements as embodied in the consent orders, the Township established by ordinance an ML-25 Mount Laurel Compliance Zone applicable to the Lions Head property, which provided:

Permitted Principal Uses. In the ML-25 Mount Laurel Compliance Zone, no premises shall be permitted and no structure shall be erected, altered or occupied for any purpose except the following:

a. Same as permitted in the Rural Residential zone in conformance with the R-60 Residential Zone District requirements.

b. Such Mount Laurel development as is permitted by the Housing Plan Element of the Wall Township Master Plan as adopted August 1, 1988; the Consent Order Approving Settlement entered October 24, 1988; the Consent Order entered March 3, 1989; and the Developers Agreement to be entered. . . . Such Mount Laurel Development shall be ...


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