Agenda - Planning Commission - 03/07/2019

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Zoning Bulletin January 25, 2019 I Volume 13 I Issue 2 noted that, under § 8-18 "subdivision" definition, "division of a tract or parcel of land into three or more parts or lots" demonstrates that the creation of one new lot does not consti- tute a subdivision. Accordingly, the appellate court concluded that the plain language of § 8-18 did not support the inter- pretation of the statute adopted by the trial court. Proceedings/ Jurisdiction Local environmental groups argue that developer's exemption from state's Highlands Water Protection and Planning Act expired for failure to commence construction within three years of receiving final approvals Developer and state Department of Environmental Protection contend exemption did not expire because conditions in planning board's final approval requiring additional approvals remained unsatisfied Citation: N.J. Highlands Coalition v. New Jersey Department of Environmental Protection, 2018 WL 6539897 (N.J. 2018) NEW JERSEY (12/13/18)—This case addressed the issue of whether Exemption 17—an exemption from New Jersey's Highlands Water Protection and Planning Act for the construction of affordable housing proj- ects —had expired for failure to commence construction within three years after receiving all final approvals required pursuant to New Jersey's Municipal Land Use Law. Specifically, the case addressed the meaning of "all final approvals" under the Highlands Water Protec- tion and Planning Act. The Background/Facts: Bi-County Development Corporation ("BDC") owned property in the Borough of Oakland (the "Borough"). BDC sought to develop its property as an affordable housing project. In further- ance of the development project, BDC sought and obtained both preliminary and final site plan approval from the Borough's Planning Board (the "Board"). No- tably, that approval came with 57 conditions. As an affordable housing project, BDC's develop- ment project was eligible to qualify for exemption from New Jersey's Highlands Water Projection and Planning Act (the "Highlands Act" or the "Act"). Pursuant to Exemption 17 of the Act, development projects that meet certain, specified criteria are exempt from the Act's requirements. The exemption, however, "shall expire if construction beyond site preparation does not commence within three years after receiving all final approvals required pursuant to the `Municipal Land Use Law' [the `MLUL']" (N.J. Stat. Ann. §§ 13:20- 28(a)(17), 40:55D-4.) BDC's project qualified for Exemption 17. Eventually, N.J. Highlands Coalition and the Sierra Club, NJ (the "Petitioners") petitioned the State Depart- ment of Environmental Protection ("DEP"), arguing that Exemption 17 had expired for BDC because con- struction of BDC's project failed to commence within three years after receiving all final approvals required pursuant to the MLUL. The DEP concluded that BDC's project could pro- ceed under Exemption 17 because its qualifications had not expired. In so concluding, the DEP noted that sev- eral of the 57 conditions associated with the final site plan approval remained unsatisfied. Two of those unsatisfied conditions required BDC to obtain ad- ditional approvals from the Board and from DEP. Ac- cordingly, the DEP determined that the Board's prelim- inary and site plan approvals were "not a 'final approval' in reasoning that BDC had not obtained "all final approvals required pursuant to the MLUL" as Exemption 17 prescribed. The Petitioners appealed. The Superior Court, Ap- pellate Division, affirmed the DEP's determination. The Petitioners again appealed. On appeal, the Petitioners argued that Exemption 17 incorporated the MLUL definition of "final approval." That definition provides that "final approval" "means the official action of the planning board taken on a preliminarily approved major subdivision or site plan, after all conditions, engineering plans and other requirements have been completed or fulfilled and the required improvements have been installed or guarantees properly posted for their completion, or approval conditioned upon the posting of such guarantees." (N.J.S.A. 40:55D-4.) The DEP and BDC responded, arguing that this case did not involve an interpretation of the MLUL but instead involved an interpretation of the phrase "all final approvals required" contained in Exemption 17 of the Highlands Act. DECISION: Judgment of the Superior Court, Ap- pellate Division, affirmed. The Supreme Court of New Jersey affirmed the deci- © 2019 Thomson Reuters 3