(908)402-4770Most applicants for a land use approval (subdivision, site plan or variance) have to provide formal notice to the owners of real property within 200 feet of the property that is the subject of the application. However, the list of potential objectors who can oppose the application before the board or challenge an approval afterwards is not limited to those property owners. The Municipal Land Use Law defines an “interested party” in a civil case as “any person, whether residing within or without the municipality, whose right to use, acquire, or enjoy property is or may be affected by any action taken under [the MLUL].” In Cherokee LCP Land, LLC v. City of Linden Planning Board (decided August 2, 2018), the New Jersey Supreme Court, in a 5-2 decision, reversed the Appellate Division and ruled that the holder of a tax sale certificate for property adjacent to the property that was the subject of a site plan approval had standing to bring a judicial challenge to the approval.
Tax sale certificates are a means by which the obligation to pay real property taxes is enforced. The purchaser of a tax sale certificate from a municipality obtains the municipal lien on the property for the periods represented by the certificate. If the property owner does not redeem the certificate by paying the purchase price of the certificate and accrued interest, the tax sale certificate holder will eventually obtain the right to foreclose the right of redemption. In such a proceeding the court determines the amount due and sets a date certain for the owner to redeem the certificate by payment to the tax collector for benefit of the certificate holder. If the owner does not do this, the court will enter a judgment transferring title to the property to the certificate holder.
In Cherokee LCP Land the Court’s opinion, written by Justice Solomon, held that this right to foreclose and acquire title was sufficient to a right to acquire property that may be affected by a land use application and that the certificate holder therefore qualified as an interested party who could challenge an approval. In a compelling dissent Justice Timpone argued that the eventual ability to foreclose did not constitute a “right to acquire” the land and, even if it did, the development of the adjacent property would not affect that right.
Attorneys at Schiller, Pittenger & Galvin, P.C., are familiar with the land use application process and can help if the development of a nearby property will impact the enjoyment of a person’s land.