Toll Brothers, Inc. Wins Right to a Recalculation of Improvement Obligations Due to Design Downsizing
In a significant win for Toll Brothers, Inc., the Supreme Court of New Jersey reversed a judgment of the Appellate Division by recognizing the company's right to appear before the Burlington County Planning Board to request a recalculation of roadway improvement obligations due to a substantial downsizing of its original design. The ruling maintains that under the Municipal Land Use Law (MLUL), a developer cannot be compelled to shoulder more than its pro-rata share of the cost of off-tract improvements, irrespective of the fact that such obligations may be recited in the terms of a developer agreement. Justice Virginia Long delivered the opinion of the Court.
"This is terrific news for developers," said attorney Richard J. Hoff, a shareholder and member of the Commercial and Real Estate Practice Groups at Flaster/Greenberg in Cherry Hill, who represented Toll Brothers with Carl S. Bisgaier, a shareholder in the same practice group. "We are pleased with the decision that recognizes that developer agreements cannot alter the proposition of New Jersey law that developers can only be responsible for their respective fair share of necessary off-tract improvements."
The property at issue is a 540-acre site located in Burlington County, that lies partly in Moorestown Township and partly in Mount Laurel Township. Toll Brothers was being held responsible by Burlington County for implementing a scope of roadway improvements that were required in light of a much larger, now revised, scope of development. Toll Brothers resisted such obligations arguing that a change in the scope of project warranted a review of the improvement obligations imposed on that project, regardless of the fact that the prior scope of improvements was memorialized in a developer agreement. The Supreme Court agreed with Toll Brothers, concluding that the company was entitled to appear before the County Planning Board to seek a recalculation of required contributions and that New Jersey law does not allow a developer to be saddled with an obligation to construct improvements that are not reflective of that developer's pro rata share of such improvements.