R e a l E s t a t e C L I E N T A L E RT

June 2006

Appellate Ruling Upholds Decision

Against Mount Olive Planning Board
In a legal victory for ARD Mount
Olive Associates, L.P. and Flaster/
Greenberg, the Superior Court of
New Jersey, Appellate Division,
upheld the decision of the
Honorable B. Theodore Bozonelis,
A.J.S.C., that the Planning Board
of the Township of Mount Olive, in
Morris County, New Jersey had
acted in a “capricious” and
“arbitrary” manner amounting to an
abuse of discretion when it denied
extension applications of the
developers for a multi-phased
housing development. Finding that
the two projects were to be viewed
as a single development for pur-
poses of balancing due diligence
because of the interdependent
nature, in terms of satisfying
regulatory and local requirements
and approvals, the Court stated
that the vesting period of the
Phase II preliminary approval
should have been extended based
on the diligent actions of Toll
Brothers on the Phase I project.
Despite the overwhelming evidence to
the contrary, the Mount Olive
Planning Board denied Toll Brothers’
Extension Application for Final Major
Subdivision Approval for Phase I,
finding that Toll failed to diligently
pursue activities needed for the
completion of the project. The
Planning Board also denied ARD’s
Extension Application for Preliminary
Major Subdivision Approval for Phase
II, citing ARD’s failure to diligently
seek permits necessary to com-
mence work on Phase II, even though
Phase II could not begin until Phase I
was completed.
This case is significant in its treat-
ment of a multi-phased development.
The Appellate Court recognized that
the Planning Board granted the
preliminary approval for the phasing
of the development and therefore
understood that the Phase II project
could not go forward unless and until
the construction of the Phase I
project was complete. Therefore,
there was nothing that ARD, as the
Phase II owner/developer, could do
within the initial vesting period to
move the Phase II project forward.
Under such circumstances, the
Court held that ARD, in seeking an
extension of vesting for Phase II,
could rely on the diligent actions of
Toll Brothers to perfect the Phase I
approvals and to move forward with
the Phase I project.
This decision by the Appellate Court
Division of the Superior Court,
presided over by Judges Wecker,
Fuentes, and Graves was upheld
on April 26, 2006.
Flaster/Greenberg shareholders Carl
S. Bisgaier and Richard J. Hoff repre-
sented ARD Mount Olive Associates.
Mr. Bisgaier can be reached at
carl.bisgaier@flastergreenberg.com
and at 856-661-2269.
Mr. Hoff can be reached at
richard.hoff@flastergreenberg.com
and at 856-382-2249.

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