Agenda - Planning Commission - 09/03/2009

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August 10, 20091 Volume 31 No. 15 Zoning Bulletin permitted municipalities to require that open space be set aside as part () of a Planned Unit Development ("PUD") design (see N.].S.A. 40:55D- 43, -45), it did not authorize municipalities to require open space be set aside as part of other development applications. The court concluded that: "Had the Legislature intended to create the broader power [of al- lowing requirements of set-asides for all development] ... it would not have limited its authorization to the PUD context as it did." Moreover, the court found that the MLUL-even in the PUD con- text-did not authorize a municipality to permit a developer to satisfy open space requirements through a payment in lieu of a set-aside. That was clear: (1) given that the MLUL permitted a municipality to require contributions for off-tract improvements for only limited items (i.e., water, sewer, drainage, and street improvements) (see N.].S.A. 40:55D- 42); and (2) because payments in lieu of set-asides would not advance the Legislature's goal of ensuring that adequate open space be provided within a PUD. See also: Toll Bros., Inc. v. Board of Chosen Freeholders of County of Burlington, 194 N.]. 223, 944 A.2d 1,2008 WL 833160 (2008). See also: Manalapan Realty, L.P. v. Township Committee of Tp. of Manalapan, 140 N.J. 366,658 A.2d 1230,1995 WL 347335 (1995) (-------) Case Note: The court noted that despite its holding, municipalities were not powerless to create or encourage the preservation of open space. Municipalities could use their Master Plans to designate ar- eas for a variety of public purposes (see N.].S.A. 40:55D-28, -44). However, municipalities were required to pay just compensation to the owner of an affected parcel as a means of acquiring the land so designated for that public purpose (see N.].S.A. 40:55D-44). Duration of Rights-Planning board denies application for modification of special permit~ finding special permit lapsed Construction had ceased for twenty years after only two of four phases of development were completed : Citation: Lobisser Bldg. Corp. v. Planning Bd. of Bellingham, 454 Mass. 123,907 N.E.2d 1102,2009 WL 1708934 (2009). MASSACHUSETTS (06/22/09)- In December 1985, the town's plan- ning board (the "Board") granted a special permit to the Onallam Re- 10 . @ 2009 Thomson Reuters 64 Ii J! ii Ii II II' Ii I I I I I ! I I I - I 1 i I f I l j I I I ! I I I i I I