Agenda - Planning Commission - 09/05/2013

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Zoning Bulletin July 25, 2013 l Volume 7 I Issue 14 for internal roadway widths and improvements. (See N.J.A.C. 5:21-4.1, -4.2, -4.5.) When a municipal ordinance requires subdivision or site plan approval, the planning board must evaluate all such applications for ap- proval to ensure compliance with the RSIS. A failure to abide by the requirements of the RSIS is treated as a violation of the MLUL, and violators may be prevented from constructing or occupying a develop- ment that does not comply with the requirements of the RSIS. Northgate challenged how the Board calculated the intensity level of the proposed development's roadway. In Northgate's view, the roadway's intensity level dictated the RSIS requirements that were to be applied. Northgate asserted that the Board's calculations were flawed because they were based on the size of the entire parcel rather than the size of the parcel af- ter excluding environmentally sensitive land. Although the land covered 9.79 acres in the Borough, Northgate argued that, after subtracting wetland acreage, the density was 4.36 dwelling units per acre —resulting in a "medium intensity" roadway designation under the RSIS. Both the trial court and the appellate court affirmed the Board's ap- proval of Caliber's application. As to the notice issue, both courts regarded the error in the notice as a clerical mistake that was of no sig- nificant consequence since other property identifying information had also been provided in the notice. As to the RSIS compliance issue, the trial court concluded that the Board could waive compliance. The Ap- pellate Division instead found that the project complied with the RSIS requirement. Significantly, the Appellate Division determined that the Board could round down the dwelling units per acre calculation, thus supporting the designation of the roadway as being of low intensity. Northgate appealed. DECISION: Judgment of superior court, appellate division, of -- firmed as modified. The Supreme Court of New Jersey held that Caliber's conditional use approval notice that contained the erroneous tax lot designation complied with the MLUL requirements. The court noted that in the no- tices, Caliber had not only used the lot numbers to identify the Land on which it proposed development, but had also identified the Land by its commonly known name and by reference to the location as being south of a particular road. The court concluded that there had clearly been no confusion about the location of the Land, as: many interested property owners appeared for the hearings; and after the Board published a notice with the accurate lot designation, no new objector stepped forward. The court held that "a minor, clerical deviation that had no potential to mislead any interested member of the public does not fall short of the statutory requirement for describing the property to be developed." Ac- cordingly, the court concluded that the minor error in Caliber's notice here did not violate the statute nor deprive the Board of jurisdiction to act. ©2013 Thomson Reuters 7