In a rare decision favoring a neighborhood objector over a developer, the Superior Court of New Jersey has overturned a controversial Planning Board approval in Mordechai Wullinger v. Planning Board of the Township of Toms River, a prerogative writs action challenging the Board’s approval of amendments to a long-dormant hotel development.
The ruling represents a significant victory for local resident Mordechai Wullinger and his counsel, The Law Offices of Jan Meyer & Associates, who successfully argued that the Planning Board improperly allowed a developer to rely on zoning protections that had long since expired.
The case centers on a 5.22-acre property in Toms River’s O-15 Office Zone (Block 591.25, Lot 50) that has remained undeveloped despite receiving approvals nearly two decades ago.
In July 2009, the Toms River Planning Board granted preliminary and final major site plan approval for a project consisting of:
A 125-room Courtyard by Marriott hotel
A 6,284-square-foot restaurant
Related site improvements and signage
The project also received variance relief relating to the height of a privacy wall and certain signage dimensions.
Despite these approvals, the developer did not promptly move forward with construction. Instead, the project languished for years.
According to the court’s decision, the developer did not even begin taking significant steps toward construction until April 2016, when it posted performance guarantees and obtained a zoning permit—nearly seven years after the original approvals.
Additional agency approvals trickled in over the following years, including:
Ocean County Planning Board approval in 2019
Soil Conservation District approval in 2021
CAFRA and other NJDEP-related approvals in 2021
A certificate of resolution compliance was issued in September 2021, and a zoning permit followed in June 2022.
While the developer slowly assembled approvals, Toms River amended its zoning ordinance in 2021, altering the conditional use standards governing hotels and motels in the O-15 district.
Those changes meant the 2009 project no longer complied with current zoning requirements.
After a hearing on October 16, 2024, the Planning Board approved the amendment and concluded the project retained “vested rights” under the earlier approvals. In so doing the Board did not require the developer to submit a new application which would have been subject to the updated ordinance.
Objector Mordechai Wullinger filed a Complaint in Lieu of Prerogative Writs, arguing that the Planning Board improperly shielded the developer from current zoning requirements.
His lawsuit - filed by the Law Offices of Jan Meyer and Associates - raised two primary claims:
1. Equitable estoppel could not override the zoning ordinance.
Wullinger argued that because the developer had not built anything and had made only minimal expenditures, it could not rely on equitable doctrines to escape the updated law.
2. The public was not properly informed that the Board was considering whether to apply equitable estoppel.
According to the complaint, the public notice did not adequately disclose that the Board would decide whether the developer could avoid the 2021 zoning amendments.
After reviewing the documentary record and hearing the case, the court concluded in a 27 page ruling that the Planning Board’s decision could not stand.
The judge conducted a detailed analysis of the Municipal Land Use Law (MLUL) provisions governing how long developers are protected from zoning changes.
Under the MLUL:
Preliminary approvals typically provide protection for three years.
Final approvals provide additional protection, but the statute limits those protections unless extensions are formally granted.
The court found that the protections associated with the 2009 approvals expired long ago.
Because no extensions were obtained, the statutory protections would have expired no later than 2014.
The developer argued that later administrative actions - such as the 2020 administrative modification and the 2021 certificate of compliance - effectively preserved its zoning protections.
The court rejected that argument.
According to the decision, the MLUL does not allow administrative modifications or zoning permits to extend the statutory protection period tied to site plan approvals.
The court concluded that those later actions:
Did not extend the original zoning protections, and
Did not reset the clock for the earlier approvals.
The Planning Board had relied heavily on the doctrine of equitable estoppel, essentially concluding that fairness required allowing the developer to proceed under the older zoning standards.
But the court emphasized that equitable estoppel is rarely applied against municipalities and requires compelling circumstances.
Here, the judge found the record did not support such relief.
Among other issues:
Construction had never begun.
The developer’s expenditures were limited.
Many of the acts of reliance occurred before the challenged permit was even issued.
As a result, the court determined the Board erred in shielding the project from the 2021 zoning changes.
The court ultimately ruled that at the time of the October 2024 hearing, the project was subject to the 2021 zoning amendments governing hotels and motels.
Because the Board applied outdated standards, its approval of the amended site plan could not stand.
The court therefore vacated the Planning Board’s approval, siding with Wullinger’s challenge.
Not only did the court overturn the Planning Board’s legal conclusions, it also rejected the developer’s attempt to rely on equitable doctrines to preserve long-expired approvals. That makes this ruling particularly notable.
For Mordechai Wullinger and his attorneys at The Law Offices of Jan Meyer & Associates, the decision represents a significant win for residents seeking to hold planning boards to the letter of New Jersey’s land-use laws.
And observers say the outcome is even more striking given the presiding judge’s reputation - one often viewed as generally favorable to development projects - making this reversal an especially rare outcome for a local objector.
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