No Default Approval for Developer Against Sayreville

Title:
No Default Approval for Developer Against Sayreville
Date:
Oct 17, 2006
Practices:

Riker Danzig's client, the Planning Board of the Borough of Sayreville, obtained a favorable ruling from the Appellate Division of the Superior Court of New Jersey in its dispute with developer Fulton's Landing, Inc. The Appellate Division rejected Fulton's Landing's argument that it was entitled to default approval of its preliminary major subdivision application to build 200 single family homes on a 100 acre parcel of land in the center of the Borough.

Fulton's Landing had submitted its application for preliminary subdivision to the Borough in early 2004. The application was deemed incomplete by the Planning Board as a result of Fulton's Landing's failure to obtain roadway easements across adjacent property owned by E.I. DuPont de Nemours and Company. The roadway easements were required to link existing connector roads from Main Street to roadways which must be constructed across Fulton's Landing's property as a condition of development.

Rather than obtaining the roadway easements from DuPont, Fulton's Landing filed suit against the Planning Board seeking default approval of its subdivision application pursuant to the Municipal Land Use Law.

The trial court denied Fulton's Landing's request for default approval, and remanded the application to the Planning Board to consider the completeness of the application.

On appeal, the Appellate Division likewise rejected Fulton's Landing's request for default approval, and affirmed the trial court's ruling in this regard. Additionally, however, the Appellate Court deemed Fulton's Landing's application to be complete, notwithstanding its failure to obtain the easements. The Court remanded the application to the Planning Board for consideration within the 95 day period prescribed by the Municipal Land Use Law.

Significantly, however, the Court's opinion addressed only the issue of completeness and not approval with regard to Fulton's Landing's ultimate obligation to obtain the easements from DuPont. Specifically, the Court did not foreclose the Planning Board from conditioning ultimate approval of the application on Fulton's Landing's acquisition of the easements, and expressly declined to reach this issue on appeal.

Riker Danzig partner Marc D'Angiolillo, counsel for the Borough, said, "We are pleased with the Court's decision to remand the Application back to the Planning Board for consideration. By seeking default approval of the Application on technical grounds through litigation, the developer attempted to make an end run around the Planning Board. He explained, The subdivision of a property that size, over 100 acres, will significantly impact the health, welfare and future development of the entire community. Given the legitimate dispute regarding the developer's obligation to obtain the roadway easements, default approval of the Application would have been far too harsh of a remedy."