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Friends of Peapack-Gladstone v. Borough of Peapack-Gladstone Land Use Board, et al. Tolling of Development Approvals under N.J.S.A. 40:55D-21

Under N.J.S.A. 40:55D-21, if a developer is 'barred or prevented, directly or indirectly,' from moving forward with an approval obtained pursuant to the Municipal Land Use Law (MLUL) 'during the period of approval' on account of the institution of 'a legal action' or the issuance of 'a directive or order' by, among other government actors, a 'political subdivision' for the purpose of 'protect[ing] the public health or welfare' at a time when 'the developer is otherwise ready, able and willing to proceed[,]' then - in such instance - the period of approval shall be suspended for so long as 'said legal action is pending or such directive or order is in effect.'

Recently, in the matter of Friends of Peapack-Gladstone v. Borough of Peapack-Gladstone Land Use Board, et al., the Appellate Division of the New Jersey Superior Court interpreted this provision of the MLUL and decided, among other things, that the running of the period of approval for 18 golf cottages was tolled when a zoning officer declined to issue a building permit for the construction of the second such cottage, 'because of his perception that the project was being advertised in a manner contrary to the Board's prior approvals.'  In the Court's view, the zoning officer was 'plainly' acting as an agent of the Borough, a political subdivision, in rendering this decision which, according to the Court, 'was manifestly an effort on his part . . . to ‘protect the public health and welfare' in the Borough [and] . . . had the direct and indirect effect of halting the developer's work on the project, at a time at which the developer was evidently ‘ready, willing and able to proceed' with the building of the next dwelling.'

The Appellate Division's decision in Friends of Peapack-Gladstone v. Borough of Peapack-Gladstone Land Use Board, et al. may be viewed on WestLaw at 2009 WL 1643315 (N.J.Super. A.D.) and has been approved for publication.

Full post as published by New Jersey Law Blog on June 22, 2009 (boomark / email).