MICHAEL SCARFI v. WESTWOOD PLANNING BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1397-05T31397-05T3

MICHAEL SCARFI,

Plaintiff-Appellant,

v.

WESTWOOD PLANNING BOARD,

Defendant-Respondent.

___________________________________________________________

 

Submitted May 2, 2006 - Decided May 24, 2006

Before Judges Lefelt and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-6686-03.

Kaufman, Bern & Deutsch, attorneys for appellant (Dennis S. Deutsch, of counsel and on the brief; Marilyn G. Gittleman, on the brief).

David L. Rutherford, attorney for respondent.

PER CURIAM

Plaintiff, Michael Scarfi, appeals from an October 10, 2005 order of the Law Division, Bergen County, that declared that plaintiff's right to subdivide a certain parcel of property in Westwood, pursuant to a final judgment entered on February 5, 2004, had expired due to plaintiff's failure to perfect the subdivision by filing a subdivision deed in a timely fashion. The order also discharged a related order to show cause entered on July 15, 2005. We affirm.

In July 2003, defendant, Westwood Planning Board, denied plaintiff's application for a minor subdivision for property located in the R-1 Single Family Residential Zone. The application sought to divide a lot consisting of 1.27 acres, more than 55,000 square feet, into two lots. The minimum lot for the zone size was 7,500 square feet. On September 8, 2003, plaintiff filed a complaint in lieu of prerogative writs against the Board challenging the denial and, following a trial before Judge Robert P. Contrillo, the Board's denial was reversed and the court granted plaintiff's subdivision application. The order dated February 5, 2004 provided that the minor subdivision plan was "approved subject only to standard conditions such as, if applicable, sidewalks (if required by ordinance), the Residential Site Improvement Standards and the like."

Instead of acting on that approval, plaintiff filed a second application with the Board to subdivide the property in a different manner. The Board denied the second application; and again, plaintiff filed a complaint in the Law Division challenging the denial. This time, the Law Division dismissed plaintiff's action without prejudice, and remanded the matter for further consideration by the Board in light of a recently passed ordinance.

Plaintiff did not pursue the second application any further. Instead, on June 16, 2005, more than sixteen months after the court had granted approval of the first application for subdivision, plaintiff submitted to the Board a proposed form of subdivision deed relating to that approval. The Board did not sign and return plaintiff's deed. Thus, on July 18, 2005, plaintiff sought and was granted an order to compel the Board to show cause why an order should not be entered directing it to issue a deed for the subdivision approved by the court in its February 5, 2004 order.

Following hearings conducted on August 17 and September 27, 2005, the Law Division denied plaintiff's request to compel issuance of such deed because he had failed to perfect the subdivision approval within the one-hundred ninety-day time period prescribed by N.J.S.A. 40:55D-47d. The statute provides in relevant part that:

Except as provided in subsection f. of this section, approval of a minor subdivision shall expire 190 days from the date on which the resolution of municipal approval is adopted unless within such period a plat in conformity with such approval and the provisions of the "Map Filing Law," P.L.1960, c.141 (C.46:23-9.9 et seq.), or a deed clearly describing the approved minor subdivision is filed by the developer with the county recording officer, the municipal engineer and the municipal tax assessor.

Plaintiff argues on appeal that the one-hundred ninety-day period set forth in N.J.S.A. 40:55D-47d is applicable only to minor subdivision approvals granted by planning boards and that the lapse provision of the statute does not apply to an approval ordered by the court. Plaintiff also asserts that, pursuant to N.J.S.A. 40:55D-7, which defines "subdivisions" and states that "divisions of property upon court order, including but not limited to judgments of foreclosure," "shall not be considered subdivisions within the meaning of the [Municipal Land Use Act], if no streets are created."

N.J.S.A. 40:55D-7 plainly does not apply to a minor subdivision, which is separately defined in N.J.S.A. 40:55D-5 to mean "a subdivision of land for the creation of a number of lots specifically permitted by ordinance as a minor subdivision[.]" The bare assertion that a minor subdivision approved by court order is not a . . . subdivision is not otherwise amplified in plaintiff's appellate brief and warrants no discussion in a written opinion. R. 2:11-3(e)(1)(E). Moreover, we affirm the order for judgment substantially for the reasons expressed by Judge Contillo in his oral opinion rendered on September 27, 2005.

In his ruling in favor of the Board, the judge explained the effect of his earlier order:

My judgment of February 5 of '04 was not a "division of property . . . upon court order," . . . I never, . . . effected a division of that property. The court simply reversed the Planning Board denial and ordered that it was approved. My decision was that the Planning Board had no power but to approve the application, therefore, it was approved by the court. That decision did not cause a subdivision any more than if the Planning Board had approved it . . . that would have caused a subdivision. When a Planning Board approves a subdivision that doesn't effect a division of the property, it permits a division of the property. Likewise, when the court approves a subdivision on the grounds that it could only have been lawfully approved and could not lawfully have been disapproved, that is not a division -- I did not divide the property, that does not act to divide the property, it permits the division of the property, but still that process has to be pursued by actually implementing [a] subdivision. . . . Therefore, . . . the plaintiff, like any developer, at that stage has what he had had he gone to the Board, but he must still act to perfect that subdivision and the only way to perfect a minor subdivision under the Land Use Law is to file a deed or a plat, and that's under 40:55D-47d, and that is never done in this case, and nothing that the town or the Planning Board ever did prevented that from occurring. . . .

The fact is that whether the court approves it or the Board approves it, it has to be perfected, it has to be perfected by a deed or a plat and it has to be perfected within 190 days. Now, you can get an extension under 40:55D-47f. You have to apply within a certain period of time, you have to show certain things. That was never done. But that same exact obligation pertains to [a person] who gets his approval from the court or [a person] who gets his approval from the Board.

We are in complete agreement with the judge's explanation of the effect of the judgment reversing the Board and approving the minor subdivision. The judgment was the equivalent of a resolution of approval and, as such, it activated the one-hundred ninety-day time frame of N.J.S.A. 40:5D-47. The Law Division's reversal of the Board's denial and its approval of plaintiff's application for a minor subdivision did not provide plaintiff with more than the statutorily required one-hundred ninety-day period to perfect his application.

Plaintiff contends he did not apply earlier for the subdivision deed because he was involved in litigation with the Board concerning his second application for minor subdivision affecting the same property and because of the Board's hostility. In his brief, plaintiff acknowledges he made a calculated decision. He states "[i]f plaintiff had filed the subdivision deed during the Second Litigation, that might have prejudiced his right under the litigation. By the time the litigation concluded, more than a year had elapsed since Judge Contillo's order granting [a] minor subdivision." Whatever may have motivated plaintiff not to submit a proposed deed, the undisputed fact is he never made a timely application for issuance of the deed or to extend the time period for perfecting the minor subdivision that was the subject of the first application. Moreover, apart from tactical or strategic considerations, as the court observed, there was nothing to prevent plaintiff from perfecting his approved subdivision. Yet, he opted to pursue a second application without taking steps to implement the first approval. By proceeding on the second application and the litigation ensuing therefrom, plaintiff allowed the approval of the first application to lapse.

Affirmed.

 

(continued)

(continued)

7

A-1397-05T3

May 24, 2006