Submitted May 12, 2015.
Approved for Publication July 7, 2015.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket Nos. L-125-10, L-151-13, and L-203-14, and Somerset County, Docket No. L-248-13.
Claudia Casser, appellant, Pro se.
Robert J. Greenbaum, attorney for respondents in A-1815-13 and A-2127-14 Township of Knowlton, Mayor and Committee for Knowlton, Township of Knowlton Planning Board, Members of the Township of Knowlton Planning Board, Rene Mathez, David A. Smith, Ronald C. Farber, Clayton Taylor, Michael Tironi, Hal Bromm, and George James; respondents in A-1815-13 Scott Odorizzi and Carla Constantino; and respondents in A-2127-14 Frank Van Horn, Dale Glynn and Howard Cowell.
Thompson Becker & Bothwell, L.L.C., attorneys for respondents in A-1815-13 Maser Consulting, P.A. and Joseph J. Layton ( Joseph T. Ciampoli, on the brief).
McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for respondent in A-1815-13 Mark J. Hontz ( Craig J. Smith, on the brief).
Law Offices of Joseph Carolan, attorneys for respondent in A-1815-13 Ted Rodman ( Mr. Carolan and George H. Sly, Jr., on the brief).
Before REISNER, HAAS and HIGBEE,
SUSAN L. REISNER, P.J.A.D
We have consolidated two appeals for purposes of this opinion. Appeal A-2127-14 concerns a 2010 complaint in which plaintiff Claudia Casser sought, on various theories, to challenge land use approvals that the Knowlton Township Planning Board issued to her in 2007. Appeal A-1815-13 (the companion appeal) concerns a complaint plaintiff filed on April 18, 2013, challenging land use approvals issued to two other landowners and challenging the validity of the local zoning ordinance.
We affirm in A-2127-14. We conclude that a party may not circumvent the exhaustion doctrine by waiting until it is too late to file the predicate action required for exhaustion, and then claiming that exhaustion would be " futile" because that action is time-barred. In A-1815-13, we remand to the trial court for further proceedings consistent with this opinion.
[At the direction of the court, Section I has been omitted from the published version of the opinion.]
Plaintiff's land use application concerned approximately 100 acres of land located in the Township's farmland preservation zone. In general, the zone permitted construction of houses on ten-acre lots. However, the zoning ordinance required that, on tracts of fifty acres or more, residences must be clustered, leaving at least fifty percent of the total land area as " open space." The latter term was defined as land " restricted to agriculture," open space restricted to use by residents of the development of which the open space was a part; or public open space. Instead of clustering the development on her land, plaintiff proposed to subdivide the land into three " farmettes" (small horse farms) of between eight and ten acres each, with a house on each farmette, plus one approximately seventy-acre remainder parcel on which she proposed to maintain an existing house.
Plaintiff proposed to sell to the State the development rights on most of the remainder parcel, so that it would be permanently preserved for farmland use. However, she was unwilling to agree to deed restrict the remainder parcel as part of the variance application, since that would defeat her ability to sell the development rights. Instead, she proposed to satisfy the open space requirement by aggregating contiguous portions of land on the three farmettes and deed-restricting the farmettes for agricultural use.
The Board conducted six days of public hearings on the variance application. Plaintiff, an attorney who previously sat on the Township Zoning Board, represented herself at most of the hearings. During the hearings, the application was modified so that plaintiff would create two relatively small farmettes of eight or nine acres each, one farmette of twenty-five acres, and a remainder parcel of fifty-seven acres. A portion of each of the four lots was to be deed restricted for agricultural use, with a total of 49.971 acres in all to be deed restricted. Plaintiff would be entitled to develop the approximately 100-acre tract with a maximum of ten new ...