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Larry Price v. Martin T. Martinetti

July 25, 2011

LARRY PRICE, PLAINTIFF-APPELLANT,
v.
MARTIN T. MARTINETTI, CONSTRUCTION CODE OFFICIAL OF THE CITY OF UNION CITY, AND 315 7TH STREET, LLC, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5274-10.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued June 7, 2011

Before Judges Parrillo, Yannotti and Skillman.

The opinion of the court was delivered by SKILLMAN, J.A.D.

(retired and temporarily assigned on recall).

The issue presented by this appeal is whether a landowner who obtains the land use approvals required for a development project, and subsequently obtains the land use approvals required for a different form of development project on the site, loses the benefit of the approvals authorizing construction of the originally planned project. We conclude that, at least in the absence of any ordinance or provision in the subsequent land use approvals conditioning those approvals upon rescission of the original approvals, a landowner that has obtained the approvals required for a development project different from the one originally approved retains the right to develop the property in accordance with the original plan.

I.

In 2004, the Union City Board of Adjustment granted an application by the predecessor in title to defendant 315 7th St., LLC (hereinafter referred to as "the developer") for the site plan approval and associated variances required for construction of a seven-story, twenty-unit apartment building on a 5,000-square-foot property. No action was brought challenging the Board's resolution granting those land use approvals.

Thereafter, the developer took steps to proceed with construction of the apartment building in accordance with those approvals, which included obtaining a demolition permit in December 2005 and a permit for construction of footings and a foundation in January 2006. Under the authority of those permits, the developer demolished an existing building and performed site preparation work on the property.

Around this same time, the developer decided to change its development plan and seek approval for construction of a much larger apartment building. To this end, the developer acquired additional adjacent lots totaling 5,000 square feet, thus increasing the size of the site to 10,000 square feet, and applied to the Board for the site plan and variance approvals required to construct an eighteen-story, eighty-four-unit apartment building on the enlarged site. The Board granted this application, but plaintiff brought an action challenging the approvals for the larger apartment building, which resulted in a Law Division decision invalidating those approvals.

The developer subsequently devised plans for a still larger (though not as tall) apartment building. To enable construction of that larger building, the developer acquired an additional 10,000 square feet of adjacent property, for a total 20,000-square-foot site, and applied to the Board for the site plan and variance approvals required to construct a fourteen-story, 129-unit apartment building. The Board granted this application, and plaintiff again brought an action challenging the approvals. The Law Division rejected this challenge and affirmed the Board's grant of the land use approvals required for construction of this larger apartment building. However, we reversed the Law Division in an unreported opinion and invalidated those approvals. Price v. Rocha, No. A-5420-06 (Aug. 1, 2008).

At this point, the developer decided to abandon its plans for construction of a larger apartment building and to revert to its original plan for construction of a seven-story, twenty-unit apartment building, for which it had received the required land use approvals in 2004. In October 2008, the developer applied for and ...


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