Development

Court of Appeals (memorandum opinion)

In a proceeding by developer seeking review of a determination by the Board of Appeals that developer had not established a vested right to develop in accordance with prior zoning regulations, developer appealed from the Appellate Division's determination that landowner had not obtained vested rights. The Court of Appeals affirmed, holding that developer could not have reasonable relied on municipal permissions.

In 2002, developer applied for site plan approval of a 136-unit multi-family complex. Although the site was then zoned to permit multi-family housing, the town was engaged in a rezoning effort. As a result, developer acknowledged in a 2002 letter to the planning board that it was pursuing site plan approval at its own risk. In 2005, the town's planning consultant recommended that the town rezone developer's parcel. The chair of the town planning board then warned developer that continued efforts to develop would be at developer's own risk because the proposed rezoning would not permit the proposed project. In 2006, the town rezoned landowner's parcel, and developer immediately challenged the rezoning. During the course of that litigation, the planning board approved developer's preliminary site plan.

Then, in December 2007, the planning board passed a resolution of final site plan approval, subject to a number of conditions. Ultimately, the courts rejected developer's challenge to the amended zoning ordinance. In the interim, however, developer had spent $181,780.97 on engineering and construction costs to comply with conditions imposed on the site plan approval. Developer contended that it had acquired vested rights to build in accordance with the old zoning ordinance, but the Planning Board and the Board of Appeals rejected that contention. Developer then brought this proceeding. Supreme Court determined that developer had acquired a vested right to develop, but the Appellate Division reversed, and developer appealed.

In affirming, the Court of Appeals declined to consider whether a conditional final site plan approval could be the basis for acquisition of a vested right to develop property. The court instead held that even if the final site plan could, in some cases, vest upon site plan approval, in this case developer could not have reasonably relied on the site plan approval because developer was aware that it was proceeding at its own risk. The court also rejected the argument that limited permits to demolish a single-family residence, or to remove water tanks, amounted to approval of the development. As a result, the court held that developer had not acquired vested rights.

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