Planning Board Can’t Deny Variance Based on Anticipated Inability of Applicant to Satisfy Site Plan Criteria

by:  Katharine A. Muscalino

The Bay Head Planning Board initially approved a bulk variance application submitted by a property owner who had inherited an irregular lot with just ten feet of frontage, where fifty feet was required.  Finding that denying a bulk variance for the frontage requirement would result in an undue hardship, and that the Applicant had adequately addressed concerns about emergency access to the Property resulting from the lot frontage variance, the Board approved the application with a 5-4 vote.  Per the approval, the Applicant was required to submit a drainage plan for the Borough Engineer’s approval at the time of site plan application.

Upon an objector’s prerogative writ suit, the parties discovered that a board member had voted on the bulk variance without attending all of the meetings or reviewing all of the transcripts.  The bulk variance application was remanded for a new vote, following a review of the transcripts by all of the board members.  The Board then voted to deny the bulk variance, with a 4-5 vote.  In its resolution, the Board explained that it denied application because the applicant had failed to provide “affirmative testimony… by any competent engineer… on how the applicant would address the well known drainage issues which plagued the proposed lot and more assuredly concerned the adjoining property owners.”

 

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No Repose for the Weary: Developers Must Deal With Untimely Appeals of Site Plan Approval

by:    Katherine A. Muscalino

A recent decision from the New Jersey Supreme Court gives developers something new to worry about — appeal of their land use approvals even after the expiration of the 45 day prerogative writ window.  The decision, which appears to deny developers the very repose that this limitation was intended to provide, means that developers remain exposed to lawsuits even after the statutory period lapses.

In Hopewell Valley Citizens’ Group Inc. v. Berwind Property Group Development Co., an applicant obtained preliminary site plan approval for a General Development Plan on May 29, 2008, over the objections of members of the public.  The approval was memorialized on September 25, 2008 and the defendant published notice of the resolution’s approval on September 27, 2008.  On October 1, 2008, the defendant informed the municipality’s Board Secretary/Administrative Officer of its publication of the approval.

Despite this notice, the Board Secretary/Administrative Officer published additional notice of the resolution on October 2, 2008.  Thereafter, an objector contacted the Board Secretary/Administrative Officer and inquired as to the date of the approval’s publication.  The Board Secretary/Administrative Officer replied that the approval had been published October 2.  The objector then used the October 2 date to calculate the 45 day period in which a prerogative writ action could be filed, and filed suit on November 17, 2008.  The suit was thus filed six days after the 45 day period expired from the original publication of the approval, but within 45 days of the second publication.

 

Continue reading “No Repose for the Weary: Developers Must Deal With Untimely Appeals of Site Plan Approval”