Bulletin Board Magazine 2021 Volume 3

Legal/Legislative

Legal/Legislative by Michael J. Gross, Esq., Steven M. Dalton, Esq. and Linda M. Lee, Esq. Mr. Gross is a Partner & Chair, Mr. Dalton is a Partner, and Ms. Lee is an Associate of Giordano, Halleran & Ciesla, P.C.’s Environmental Practice Group

DEVELOPMENT IMPACT FEES / JUDICIAL DEFERENCE

On appeal, Defendants argued that the trial court failed to give proper deference to the Planning Board by substituting its own judgment for the Board’s with respect to the necessary traffic plan and lack of a wetlands letter of interpretation (“LOI”). The appellate court disagreed and determined that the Planning Board’s decision was not entitled to any deference because its action was “clearly arbitrary, capricious, and unreasonable.” The court explained that there must be a “causal nexus” between off-site public facilities and a private development, and a “developer may not be saddled with a disproportionate share of the cost of the improvement.” The court found that the traffic plan demanded by the Planning Board required Plaintiff to pay for road improvements beyond the traffic increase related to Plaintiff’s complex’s construction. In addition, the parties’ settlement agreement provided that Plaintiff was responsible only for two new traffic signals along with the necessary paving and road striping, and therefore, the Board’s denial violated the parties’ settlement agreement. The court also found that the Planning Board’s decision to deny Plaintiff’s application on the ground of an expired and invalid wetlands LOI were “materially inaccurate” and lacked “sufficient evidential support.” This case reaffirms that although courts provide deference to a planning board’s decision, it is not without limits. A planning board’s decision must be reasonable and supported by credible evidence, and must also be consistent with other agreements which may exist.

Michael J. Gross

In re Township of East Brunswick

Bulletin Board | 7 | www.shorebuilders.org a consolidated trial, the court reversed the Board’s decision. The court found that the Board continually requested additional road improvements that were not necessitated by the development and made findings of fact about a wetland that were materially inaccurate, and the denial violated the terms of the parties’ settlement agreement. Defendants appealed, and the Appellate Division affirmed. This action arose from the Township of East Brunswick’s declaratory judgment action for substantive certification of its affordable housing plan. Plaintiff Hidden Oak Woods, LLC intervened in the action and later entered into a settlement agreement with the Township with respect to the proposed development of Plaintiff’s property. The court approved the settlement agreement, the Township adopted its third-round Housing Element and Fair Share Plan, and the court entered a Final Judgment of Compliance and Repose declaring that the Township had complied with its fair share housing obligation. Plaintiff subsequently filed an application with the Township’s Planning Board for preliminary and final site plan approval. The Board denied Plaintiff’s application. Plaintiff filed a complaint in lieu of prerogative writs against Defendants Township and Planning Board seeking a declaratory judgment reversing the Board’s decision and also filed a motion to enforce litigant’s rights with respect to the settlement agreement. Following

Steve Dalton

Linda M. Lee