06-10-09 FRIENDS OF PEAPACK-GLADSTONE V. BOROUGH OF PEAPACK-
GLADSTONE LAND USE BOARD; THE MAYOR AND COUNCIL OF THE
BOROUGH OF PEAPACK-GLADSTONE; HF COTTAGES, L.L.C.; AND
HF DEVELOPMENT, L.L.C.
A-4668-07T3
Appellants, a coalition of local residents, appealed the
Law Division's approval of settlement that a local land use
board entered into with a developer. The settlement permitted
the developer to build age-restricted, single-family homes on
property adjacent to a golf course, in lieu of corporate-
accommodation "golf cottages" that had originally been planned
for the site. The settlement resolved a pending prerogative
writs action that the developer had brought against the board
and the municipality. The settlement terms were approved at a
public hearing before the board patterned after Whispering Woods
at Bamm Hollow v. Middletown Planning Bd., 220 N.J. Super. 161
(Law. Div. 1987).
Appellants contend that the settlement did not comply with
the notice precepts and other requirements of Whispering Woods,
and also violated the Municipal Land Use Law ("MLUL"), N.J.S.A.
40:55D-1 to -163. They mainly argue that the settlement
improperly allowed the developer to circumvent, without
obtaining a density variance, stricter density requirements that
were extended to the property when it was rezoned after the
developer had obtained preliminary and final approvals for the
golf cottages.
We affirm the Law Division's approval of the settlement,
and its finding that no density variance was required because
the developer was still within the time frame protecting it from
adverse rezoning.
In particular, we hold that: (1) the filing of litigation
by objectors seeking to prevent the project's construction; and
(2) a zoning official's decision to withhold issuance of a
construction permit to the developer because of perceived
deviations from the prior approvals, are both "legal action[s] .
. . to protect the public health and welfare," sufficient to
invoke the tolling of the developer's approval period provided
for by N.J.S.A. 40:55D-21.
Second, we hold that although a land use board has the
discretion at the preliminary approval phase to extend
protection to a developer beyond the minimum three years
prescribed by the MLUL, see N.J.S.A. 40:55D-49, any such
extended period of protection flowing out of the preliminary
approval is extinguished once the respective board grants final
approval. N.J.S.A. 40:55D-52. Upon the adoption of final
approval, a developer is instead protected from changes in the
applicable zoning laws for a minimum of two years, subject to
the board's ability to grant, in its discretion, three one-year
extensions of protection. N.J.S.A. 40:55D-52. Those subsequent
extensions may be issued either prospectively or retroactively,
as permitted by N.J.S.A. 40:55D-52(c), and are further subject
to tolling under N.J.S.A. 40:55D-21 because of certain
intervening actions that interfere with construction.
Richard Sadowski
Assistant Editor
