Agenda - Planning Commission - 03/07/2019

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January 25, 2019 I Volume 13 I Issue 2 Zoning Bulletin sion of the DEP and the Appellate Division that BDC's project could proceed under Exemption 17 because its qualification had not expired. In so affirming, the court emphasized that "the opera- tive phrase to be applied" when examining whether Exemption 17 had expired for BDC's development project was the phrase "all final approvals" in the Highlands Act. The court noted that phrase used the plu- ral form when referencing "approvals." The court found evidence that the Legislature intended there to be "not just one 'final approval' for purposes of Exemption 17" in its addition of the word "all" in the phrase, to under- score that point. Rejecting Petitioner's argument, the court noted that Exemption 17 had a "distinctly differ- ent language" than the singular "final approval" in the MLUL, and concluded that the legislative intent was not to import the MLUL definition of "final approval." With this interpretation of the language, the court af- firmed the determinations of the DEP and Appellate Division that because two conditions of the Board's final site plan approval required additional approvals that were not yet satisfied, "all final approvals" had not yet been met so as to trigger the three-year limitations period for Exemption 17 application to BDC's develop- ment project. Accordingly, the court affirmed that Exemption 17 had not expired here. Case Note: In its decision, the Supreme Court of New Jersey emphasized that its interpretation of the Highlands Act's language "should not be exported to MLUL controversies." The court said that its finding of a clear distinction between the High- lands Act's language of "all final approvals" and the MLUL's language of "final approval" "should prevent this decision from having an impact on application of the defined term 'final approval,' in the MLUL context." To be clear; the court fiirther stated: "We make no findings about the finality of ap- proval for purposes of the MLUL when conditions are imposed on a project by a planning board." eferendu ity rejects petitions for referendum of zoning resolutions, findin . the resolutions were administrative in nature Petitioners argue the resolutions were legislative in nature and therefore referable Citation: Baker v. Carlson., 2018 UT 59, 2018 WL 6239919 (Utah 2018) UTAH (11/28/18)—This case addressed the issue of whether resolutions approving a developer's proposal to amend a site development master plan and approving a developer's proposal to amend an agreement for development of land were referable such that referen- dums on the resolutions could be placed on the ballot. The Background/Facts: In the mid-2000s, the Cot- tonwood Mall in the City of Holladay (the "City") closed. In 2007, the owner of the Cottonwood Mall site (the "Site"), Cottonwood Mall, LLC ("CM"), asked the City to rezone the Site to permit mixed uses. The City then approved the creation of a new zoning district for the Site —a Regional/Mixed-Use ("R/M-U") zone. The City also developed regulations related to development in an R/M-U zone. Under those regulations, any devel- oper wishing to build in an R/M-U zone was required to submit a site development master plan ("SDMP") to the City for approval. The SDMP would control the devel- opment of all property within an RJM-U zone and was meant to serve as a guide for the overall development of the entire site (similar to a City's general plan for a community). The City regulations also required that, once an SDMP was approved, the City and developer must enter into an Agreement for the Development of Land ("ADL"), which would grant specific rights pur- suant to the SDMP and address additional development - related issues. Under that framework, CM submitted and the City approved an SDMP (the 2007 SDMP) and an ADL (the 2008 ADL). However, CM ultimately abandoned the project. Then, in 2016, CM began negotiating with Ivory Development, LLC ("Ivory") for purchase of the Site and CM's rights in the redevelopment project. Ivory proposed to the City amendments to the SDMP and the ADL. In May 2018, the City passed Resolutions 2018-16 and 2018-17, which, respectively, approved Ivory's amended SDMP (the "2018 SDMP") and Ivory's amended ADL (the "2018 ADL"). 4 ©2019 Thomson Reuters