Opinion
DOCKET NO. A-0591-10T4 DOCKET NO. A-0592-10T4
03-07-2012
FRIENDSHIP, INC., Plaintiff-Respondent/ Cross-Appellant, v. TOWNSHIP OF NEW HANOVER, TOWNSHIP COMMITTEE OF THE TOWNSHIP OF NEW HANOVER, JOINT LAND USE BOARD OF THE TOWNSHIP OF NEW HANOVER, MAYOR DENNIS ROOHR, in his official capacity as New Hanover Mayor, Defendants-Appellants/ Cross-Respondents.
Capehart Scatchard, attorneys for appellants/cross-respondents Township of New Hanover, New Hanover Township Committee and Dennis Roohr, Mayor of New Hanover Township (Anthony T. Drollas, Jr., on the briefs). David C. Frank, attorney for appellant/ cross-respondent Joint Land Use Board of the Township of New Hanover (Mr. Frank, on the brief). Hill Wallack, attorneys for respondent/ cross-appellant (Thomas F. Carroll, III, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
DOCKET NO. A-0591-10T4
These are back-to-back appeals consolidated for the purpose of this opinion.
Before Judges Carchman, Fisher and Nugent.PER CURIAM
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1623-08.
Capehart Scatchard, attorneys for appellants/cross-respondents Township of New Hanover, New Hanover Township Committee and Dennis Roohr, Mayor of New Hanover Township (Anthony T. Drollas, Jr., on the briefs).
David C. Frank, attorney for appellant/ cross-respondent Joint Land Use Board of the Township of New Hanover (Mr. Frank, on the brief).
Hill Wallack, attorneys for respondent/ cross-appellant (Thomas F. Carroll, III, on the brief).
After resurrecting a municipally approved but moribund subdivision application, and expending in excess of $2,000,000 on acquisition- and development-related costs to complete the subdivision, plaintiff Friendship, Inc. was confronted with municipal opposition that compromised the future of the development. The municipal opposition took the form of newly enacted ordinances that ostensibly limited plaintiff's ability to move forward with the development. Plaintiff thereafter filed suit in the Law Division challenging the actions of defendants Township of New Hanover, Township Committee of New Hanover (collectively, the Township), Joint Land Use Board of the Township of New Hanover (Board), and Dennis Roohr, the Mayor of New Hanover. In a series of rulings, Judge Bookbinder ultimately concluded that various defendants had acted improperly and the subdivision could proceed.
Among other things, the judge determined that: (1) plaintiff's complaint in lieu of a prerogative writ was timely under Rule 4:69; (2) the Board lacked the authority to review plaintiff's subdivision approvals in a manner inconsistent with prior permits issued by the New Jersey Department of Environmental Protection (NJDEP); and (3) the Township's Ordinance 2007-8 was invalid as to plaintiff for lack of individualized notice. Defendants now appeal.
In addition, plaintiff cross-appeals and asserts that the judge erred by concluding that: (1) Roohr did not have a conflict of interest; (2) plaintiff's property was subject to affordable housing fees; and (3) plaintiff was not entitled to attorney's fees and costs under the New Jersey Civil Rights Act.
We conclude that the arguments raised in both the appeal and cross-appeal are without merit and accordingly, we affirm.
I.
These are the relevant facts adduced from the record. Plaintiff Friendship, Inc. owns numerous tax lots located in the Township known collectively as the "Cheddar Close" subdivision. Plaintiff also previously developed property and constructed homes on an adjacent Township subdivision known as "Sunnymeade." Originally, Sunnymeade and Cheddar Close were developed by entities other than plaintiff under subdivision approvals granted in 1988. Cheddar Close was approved for thirty building lots, and Sunnymeade was approved for twenty-seven building lots and a basin lot.
After receiving those approvals, the projects languished. Both subdivisions were ultimately acquired by an entity known as Hanover Lots, LLC. At that time, some bonded improvements had been installed in Sunnymeade and seven homes had been built; no homes had been built in Cheddar Close.
On February 19, 2003, the Board granted amended approvals for both subdivisions. These amended approvals included variances necessitated by ordinance amendments enacted subsequent to the granting of the original approvals. The approvals permitted development of building lots ranging from 0.36 acres to 1.06 acres in size.
In February 2004, the NJDEP adopted new stormwater regulations. See N.J.A.C. 7:8-1.1 to -6.3. On October 14, 2004, NJDEP granted a Stream Encroachment Permit to Hanover Lots, LLC, which was to expire on October 15, 2009. This permit was granted pursuant to the Water Pollution Control Act, N.J.S.A. 58:10A-1 to -43, and the Flood Hazard Area Control Act, N.J.S.A. 58:16A-50 to -68. The permit granted permission to
[e]stablish stream encroachment lines and to construct a stormwater outfall structure along North Run, in connection with the construction of a residential subdivision proposed within Lots 11.36 and 11.37 of Block 1.01, in New Hanover Township, Burlington County, New Jersey.Commentary by the NJDEP's reviewing engineers who recommended the permit's approval noted that "[t]he project is designed to meet all requirements of the new stormwater management rules." It also noted that "[t]he 80% TSS[] removal standard at N.J.A.C. 7:8-5.5 is achieved by means of the proposed basin (which yields 60% TSS removal) and a Vortechnics device (which yields 50% TSS [removal]) in series."
TSS refers to total suspended solids in stormwater runoff and is used to measure stormwater runoff quality. See N.J.A.C. 7:8-5.5.
Plaintiff denies owning Lots 11.36 and 11.37 of Block 1.01. However, in March 2005, John M. Pettit, P.E., C.M.E., requested on behalf of Hanover Lots, LLC, a modification of the permit "due to the determination by [his] client that the lot on which the expanded basin was proposed, namely Lot 11.37 is not under [his] client's control." The redesign application indicates that revised basin was located "in the Cheddar Close development." It also references the proposed use of a "Vortechnics Stormwater Treatment System Model 1522 CIP," in conjunction with a detention basin, to achieve the required removal of TSS. On April 25, 2005, the NJDEP approved the proposed revisions.
On April 3, 2005, then Township Engineer Robert Weatherford, P.E., issued a letter indicating that "the plans for the Cheddar Close subdivision are approved and the proposed site work can proceed" and noting certain listed conditions, including payment of required fees, scheduling of a preconstruction meeting, providing the required performance guarantee, and posting of a sales map.
Plaintiff entered into contracts to purchase the subdivisions subsequent to this approval, with closing on Cheddar Close on April 15, 2005. After closing, plaintiff posted new sets of escrow fees and cash performance guarantees, as requested by the Township, in the amount of $156,741.02, as well as performance bonds ensuring completion of the improvements.
Plaintiff claims to have commenced work on Cheddar Close at this time and to have expended approximately $2,200,000 at the time of the hearing on the summary judgment motions. In a contrary view, defendants claim that "[p]laintiff took no action in furtherance of the conditional permission to proceed provided by Mr. Weatherford's April 2005 letter until April or May of 2007," when "Township officials" observed plaintiff "clearing trees from the Cheddar Close site."
In 2006, the Township adopted New Hanover Township Ordinance 2006-03 (Ordinance 2006-03), a stormwater management plan implementing restrictions in accord with the NJDEP's February 2004 regulation changes. Defendants assert that "at least one planned basin on the Cheddar Close site is not deep enough to retain and infiltrate a sufficient amount of water to comply with [this ordinance]."
On May 30, 2007, David C. Frank, attorney for the Board, sent a letter to plaintiff stating the following:
The letter addresses Cheddar Close "Block 1.01, Lots 11.36 and 11.37," though as noted above, plaintiff denies owning those lots.
This letter is to inform your company that in accord with the New Jersey Department of Environmental Protection Stormwater Management Rules, specifically [N.J.A.C. 7:8-1.6], New Hanover Township is obliged to require the [Cheddar Close] development be reviewed in accord with current Stormwater Management regulations and ordinances.By copy of the letter to various Township personnel, Frank requested that no permits pertaining to Cheddar Close be issued or processed "until the project receives a revised approval."
On July 6, 2007, then Township Engineer Peter McCabe issued a letter memorializing a meeting between himself and plaintiff's representative Bill Kennedy regarding Cheddar Close. The letter discussed an agreement to provide "an updated set of plans . . . in order to determine compliance with the latest resolution of board approval" as well as the need for a sales map. The letter noted that
[n]o construction activity can be authorized at the Cheddar Close project until a comprehensive set of plans which show fully all of the changes to the approved plans required by outside agencies is submitted to the Township and found to be in compliance with all conditions of the previously granted approval and current regulations.The letter further stated that
[a]s discussed in the May 30, 2007 letter addressed to you by the Township's Land Use Attorney, David Frank, the subdivision and variance approvals for the development are no longer valid, and no extension or re-approval has been sought from the Land Use Board. Construction cannot commence until this and other issues mentioned above are resolved.
On September 4, 2007, then Township Engineer Ken Bienkowski, P.E., sent a letter to plaintiff ordering it to stop all Cheddar Close construction work immediately until certain enumerated matters could be resolved. The letter requested an updated set of plans for Cheddar Close. The letter further noted that the Township had not yet received a sales map and that certain improvements related to Sunnymeade and posting of maintenance bonds had not been performed. Finally, the letter states that "[a]s discussed in" Frank's May 30, 2007 letter, "the subdivision and variance approvals for the development are no longer valid, and no extension or re-approval has been sought from the Land Use Board."
Defendants claim the letter was sent "because [p]laintiff had continued site work even though there had been agreement with [p]laintiff's representative in early July that no work would proceed until the issues of compliance with previous approval conditions and current regulations had been resolved." Defendants provide no direct support for this claim. Plaintiff denies that such an agreement existed.
On September 11, 2007, plaintiff's attorney sent a letter to Frank stating:
Please allow this correspondence to serve as formal request for an extension of the subdivision and variance approvals for the Cheddar Close development. I would request that you schedule this matter to be heard at the next available Land Use Board meeting.Plaintiff filed no formal application documents with the Board seeking approval extension.
Please note that this request is made without prejudice to the rights of my client as they do not believe the subdivision and variance approvals have in fact expired.
Between September 2007 and April 2008, representatives of plaintiff and defendants exchanged various letters and documents attempting to address the issues noted above. During this exchange, Bienkowski continuously asserted that, although the NJDEP issued a Stream Encroachment Permit dated October 15, 2004, the Township now needed to review the Cheddar Close project for compliance with not only NJDEP Stormwater Management Rules, but also the Township's current land development ordinances. Counsel for plaintiff continued to reiterate plaintiff's position that its prior permits and approvals remained valid. While these negotiations were underway, on December 27, 2007, the Township adopted New Hanover Township Ordinance 2007-8 (Ordinance 2007-8), which rezoned plaintiff's property to provide for minimum lot sizes of ten acres.
A meeting was held on April 9, 2008, at which time plaintiff's representatives were advised that the Cheddar Close approvals would not be extended by the Board and that it was the Board's position that plaintiff could not complete the Cheddar Close subdivision. According to defendants, at this meeting, plaintiff "elected not to proceed with its request for an extension of the Cheddar Close approvals."
Plaintiff countered by filing a Verified Complaint in Lieu of Prerogative Writs and for Declaratory Judgment and for Injunctive Relief on May 27, 2008. Plaintiff sought to declare Ordinance 2006-03 and Ordinance 2007-8 invalid, alleged defendants acted unlawfully in stopping the Cheddar Close project, claimed that Ordinances 2006-03 and 2007-8 constituted a taking under the Fifth and Fourteenth Amendments to the United States Constitution, and alleged that Roohr had a disqualifying conflict of interest regarding Cheddar Close. The complaint sought the invalidation of Ordinances 2006-03 and 2007-8, an injunction against defendants' future impediment of the project, compensation for the taking, an accounting of all funds posted with the Township by plaintiff, a refund of all duplicative or inappropriate charges, and an award of reasonable costs and fees. Plaintiff further sought attorney's fees under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2.
The parties cross-moved for summary judgment. In granting partial relief, Judge Bookbinder held, among other things, that plaintiff's Cheddar Close subdivision approvals and permits continue to be valid, and plaintiff's claim was not time barred. He then remanded the case "for the limited purpose of allowing the defendant Land Use Board and Township Committee to review plaintiff's maintenance plan for the detention basin and plaintiff's maintenance plan for the drywells."
On remand, the Board held hearings regarding plaintiff's project, and on December 10, 2009, the Board issued Resolution 2009-09 approving the Cheddar Close project, but placing conditions on that approval. Specifically, the resolution recommended, among other things, that (1) "the Township accept responsibility for stormwater system maintenance, subject to payment by the developer to the Township of projected maintenance costs . . ." and (2) "the Township not accept the VorTechnics Treatment System and dry wells but instead require, as a condition of acceptance of the maintenance obligation for the stormwater system, the developer to substitute other measures for those systems . . . ."
The parties then cross-moved for summary judgment to resolve the remaining issues. In granting relief, Judge Bookbinder held, among other things, that the Board "exceeded the scope of the limited remand" and therefore Resolution 2009-09 "is of no legal effect and plaintiff is therefore not obligated to satisfy or abide by its terms."
The parties thereafter filed the appeal and cross-appeal.
II.
We first address the defendants' appeal and consider the issues raised seriatim.
A.
Defendants first argue that plaintiff's action in lieu of a prerogative writ was time barred because it was filed more than forty-five days after plaintiff's right to sue accrued, and plaintiff's attempt to seek declaratory relief does not excuse plaintiff from that time limit. Defendants also argue that the action is barred by plaintiff's failure to exhaust available administrative remedies.
Rule 4:69-6 requires that actions in lieu of prerogative writs generally must be filed within forty-five days of "the accrual of the right to the review, hearing or relief claimed . . . ." "The Rule does not define by its terms when rights 'accrue' to trigger the forty-five-day period, but instead leaves the question of accrual to substantive law." Harrison Redev. Agency v. DeRose, 398 N.J. Super. 361, 401 (App. Div. 2008). The Rule is "designed to give an essential measure of repose to actions taken against public bodies." Tri-State Ship Repair & Dry Dock Co. v. City of Perth Amboy, 349 N.J. Super. 418, 423 (App. Div.) (citation omitted), certif. denied, 174 N.J. 189 (2002).
However, "[t]he court may enlarge the period of time . . . where it is manifest that the interest of justice so requires." R. 4:69-6(c). Rule 4:69-6(c) was intended to codify certain exceptions based on prior decisional law that can warrant an enlargement of the forty-five-day period. Brunetti v. Borough of New Milford, 68 N.J. 576, 586-87 (1975) (citing Schack v. Trimble, 28 N.J. 40, 48 (1958)). These exceptions include:
(1) important and novel constitutional questions;We have noted that these three exceptions are not exclusive. Cohen v. Thoft, 368 N.J. Super. 338, 346 (App. Div. 2004) (noting the Brunetti Court indicated that the Rule "merely 'included' those categories of cases"). For example, in Adams v. DelMonte, 309 N.J. Super. 572, 580-82 (App. Div. 1998), we held that an enlargement of time was warranted even though the case did not fall within one of the three above-enumerated categories. "[T]he rule was aimed at those who slumber on their rights." Schack, supra, 28 N.J. at 49. See also Borough of Princeton v. Bd. of Chosen Freeholders, 169 N.J. 135, 153 (2001).
(2) informal or ex parte determinations of legal questions by administrative officials; and
(3) important public rather than private interests which require adjudication or clarification.
[Ibid. (footnotes omitted).]
Even where "the right to relief has accrued, the interests of justice require, at least, that the litigant be permitted, if he so desires, to exhaust all administrative remedies before commencing an in lieu action." Schack, supra, 28 N.J. at 49. "[W]here informal or ex parte determinations are made by administrative officials charged with the performance of ministerial functions, there is not ordinarily a sufficient crystallization of a dispute along firm lines to call forth the policy of repose." Ibid.
The governing criterion for the rigid application of the time limits of the rule is . . . . a policy consideration that before a litigant's right which turns on a question of law is barred, there ought to be a formal hearing and adjudication on the question with appropriate written conclusions of law and fact. We do not say that a legal right cannot be finally resolved by an administrative determination from which review is not timely sought . . . . But before a right to relief which turns on legal questions of lesser importance is barred by the failure to seek in lieu relief, the process by which such right is determined at the administrative level ought to be of such a nature as to fully impress upon the litigant both the finality of the determination and the precise grounds upon which relief was denied. Ordinarily, informal or ex parte determinations of administrative officials charged with the performance of ministerial duties are not of such a nature.
[Id. at 50 (emphasis added) (internal citations omitted).]
The trial court held that Township Engineer Bienkowski "lacked the authority to issue a 'stop work' order" and that as a result, his stop-work letter "was without any force or authority to trigger calculation of the 45-day time period." The judge reached this conclusion "because there was no case law or statutory authority on point and [he] recognized that the function of the trial court is not to expand the law." The trial court further held that the May 30, 2007 letter to plaintiff "did not contain a 'Township determination' that [plaintiff's] approvals had expired" and therefore did not time-bar plaintiff's complaint.
Under these circumstances, Rule 4:69-6 is not a bar to plaintiff's complaint. Starting in May 2007, plaintiff received numerous letters from either Frank, as attorney for the Board, or various Township Engineers, asserting that plaintiff's prior variance approvals had expired, the Cheddar Close project was now subject to current Township regulations and ordinances, and plaintiff was required to stop all work until these and other issues were resolved. Plaintiff insisted that its approvals were still valid but worked with various Township Engineers over the following months to resolve the dispute. It was not until April 9, 2008, that the Board notified plaintiff of its official position that plaintiff could not complete the Cheddar Close subdivision as planned and that the Board would not extend plaintiff's approvals. Plaintiff filed its complaint within the forty-five-day time period following the Board's notification.
The forty-fifth day fell on a Saturday, and the following Monday was Memorial Day. Plaintiff filed its complaint the day after Memorial day. See R. 1:3-1.
The letters by Frank and the various Township Engineers constitute "informal or ex parte determinations of legal questions by administrative officials," see Brunetti, supra, 68 N.J. at 586, and do not provide "sufficient crystallization . . . to call forth the policy of repose," see Schack, supra, 28 N.J. at 49. No formal hearing or adjudication occurred until, at the earliest, April 9, 2008, when the Board finally met and informed plaintiff of its official position.
Defendants assert that letters from the Board's attorney and the Township Engineers sufficiently crystallized the dispute and triggered the time bar. However, as the trial court noted, none of these letters purported to inform plaintiff of an official Township determination. Also, defendants fail to cite any authority supporting the contention that the Board's attorney or the Township Engineers have the authority to issue a stop work order or to determine with finality if and when an approval has expired.
By statute, a municipal planning board has the authority to approve or reject a subdivision or site plan, where granted to it by the municipal governing body. N.J.S.A. 40:55D-37a. The Board, not the Board's attorney or the Township Engineer, has the power to review, modify or rescind its decision, so long as the requirements of due process are observed. See Garofalo v. Twp. of Burlington, 212 N.J. Super. 458, 465 (Law Div. 1985) (citing Ruvolt v. Nolan, 63 N.J. 171 (1973)).
Defendants cite to the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163 (MLUL) — specifically N.J.S.A. 40:55D-53 — for the proposition that the Township Engineer has sufficient authority to trigger the time bar. According to defendants, this statute confers upon a "municipal engineer" the authority to "calculat[e] the amounts of performance and maintenance guarantees, inspect[] . . . all required improvements to determine whether those guarantees should be released in whole or in part, and . . . prepar[e] a detailed report analy[z]ing whether improvements are complete or incomplete and whether they are satisfactory." However, these duties of the municipal engineer serve to assist the "approving authority" in its recordation of final subdivision plats, approval of final site plans, and issuance of zoning permits. See N.J.S.A. 40:55D-53a. Further, the governing body may reject the municipal engineer's findings "upon the establishment in the resolution of cause for rejection . . . ." N.J.S.A. 40:55D-53e(1). But cf. K. Hovnanian at Lawrenceville, Inc. v. Lawrence Twp. Mayor, 234 N.J. Super. 422, 428 (Law Div. 1988) (holding that, while the Township Council had the authority to reject the Township Engineer's evaluation of a site, the evaluation recommendations "cannot be completely rejected without the expression of any reason and without consideration of competent evidence to the contrary"). Also, defendants cite to no authority conferring upon a Township Engineer the authority to decide legal issues such as if and when approvals expire.
Defendants also claim that "[t]he only relief sought by [p]laintiff was extension of its approvals, which is clearly distinct from a challenge to the Township's assertion of the expiration of such approvals." However, plaintiff explicitly noted on multiple occasions its belief that the variance approvals had not expired, and even did so in conjunction with its request for a hearing by the Board on an extension of those approvals. Contrary to defendants' claims, plaintiff did not abandon its assertion that its approvals remained valid.
We reject defendants' reliance on Washington Commons, LLC v. City of Jersey City, 416 N.J. Super. 555 (App. Div. 2010), certif. denied, 205 N.J. 318 (2011). Washington Commons did not decide whether plaintiff's claim was time-barred by Rule 4:69-6. Its only reference to that Rule arose in its description of the procedural history of a prior unpublished Appellate Division opinion below, see id. at 558-59, and provides insufficient factual detail to apply that case to the circumstances presented here.
Finally, defendants' claim that "plaintiff's attempt to seek declaratory relief . . . is merely cover for [its] failure to file a [timely] prerogative writ challenge . . ." is likewise unavailing. Plaintiff filed in a timely manner. We reject defendants' arguments and conclude that plaintiff's complaint was not time-barred by Rule 4:69-6.
We also reject defendants' argument that plaintiff's complaint should have been dismissed because plaintiff failed to exhaust all available administrative remedies by failing to "apply to the municipal planning board for an interpretation and clarification of the issue."
Rule 4:69-5 provides that "[e]xcept where it is manifest that the interest of justice requires otherwise," actions in lieu of prerogative writs "shall not be maintainable as long as there is available a right of review before an administrative agency which has not been exhausted." The doctrine of exhaustion is not absolute. Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 561 (1979). Failure to exhaust may be excused "when the administrative remedies would be futile . . . ." Ibid. (citing Naylor v. Harkins, 11 N.J. 435, 444 (1953)).
Here, the Board notified plaintiff at the April 9, 2008 meeting that it would not extend the Cheddar Close approvals and that it was the Board's position that plaintiff could not complete the Cheddar Close subdivision. Counsel for the Board even conceded before the trial court that "I think what was futile . . . at the time of that April meeting was a request for extension of the approval . . . ." Proceeding with its request for an extension would have been futile for plaintiff. We deem this argument without merit as well.
B.
Defendants next argue that the trial court erroneously held that NJDEP review of the Cheddar Close development divested the Township of jurisdiction to review the development under the Township's and NJDEP's current stormwater regulations.
Plaintiff responds by asserting that the Board did not have the authority to "overrule" the NJDEP permit issued to plaintiff because the NJDEP has sole authority regarding stormwater issues when it has issued a stream encroachment permit.
Analysis of this issue requires us to address the following related inquiries: (i) whether the Cheddar Close subdivision approval expired, (ii) whether the Permit Extension Act of 2008, N.J.S.A. 40:55D-136.1 to -136.6 (the Act), applied to the Cheddar Close subdivision approval and NJDEP permit, and (iii) whether and to what extent applicability of the Township's stormwater ordinances was pre-empted by the NJDEP permit issued in this case.
i.
We first address the status of the approvals. Final approval of a site or subdivision plan protects a developer against zoning changes for two years after the approval is granted. Cox & Koenig, New Jersey Zoning and Land Use Administration § 15-5.2, p.379 (Gann 2011) (citing N.J.S.A. 40:55D-52(a)). See also Darst v. Blairstown Twp. Zoning Bd. of Adjustment, 410 N.J. Super. 314, 336 (App. Div. 2009).
There is a common misapprehension that a final site plan approval 'expires' at the end of the two-year period . . . . The statute does not so provide. . . . [I]f at the expiration of the two years there has been no change in zoning, the site plan continues to be in full force and effect until such time as the developer determines to proceed with the development.
[Cox, supra, at § 15-5.2, p.380 (citing Palatine I v. Planning Bd., 133 N.J. 546, 553-54 (1993)).]
Local governments may, however, provide their own limitation of the duration of approval, "which must, of course, be beyond the two-year statutory period." Ibid. See also D.L. Real Estate Holdings, LLC v. Point Pleasant Beach Planning Bd., 176 N.J. 126, 132-34 (2003).
Defendants assert that New Hanover Township Ordinance 702(M)(4) (Ordinance 702(M)(4)) provides such a limitation. Ordinance 702(M)(4) provides that all use variances, variances from conditional use standards and major bulk variances granted by the Board "shall expire within one (1) year from the date of the variance approval unless the owner shall have secured a construction permit and shall have commenced construction in conformity with the variance approval . . . ." However, subsection (c) states that "any variance granted with a site plan, subdivision, and/or conditional use approval shall expire with the expiration of the site plan, subdivision, and/or conditional use approval." The trial court found that this ordinance did not cause plaintiff's approval to expire.
Where a statute's plain language is clear and unambiguous, "'our interpretive process is over.'" Commerce Bancorp, Inc. v. InterArch, Inc., 417 N.J. Super. 329, 334 (App. Div. 2010) (citing State v. Gandhi, 201 N.J. 161, 177 (2010)), certif. denied, 205 N.J. 519 (2011). In such circumstances, the words of the statute are "'accorded their normal sense and significance.'" Ibid. (quoting Velasquez v. Jiminez, 172 N.J. 240, 256 (2002)). Only where it is "clear from the text and purpose of the statute that such meaning was not intended" or where "a literal interpretation would create a manifestly absurd result" should the spirit, rather than the letter, of the law control. Turner v. First Union Nat'l Bank, 162 N.J. 75, 84 (1999) (citations omitted).
Here, with regard to variances granted with a subdivision approval, the Township does not provide for its own expiration period, but rather provides that it "shall expire with the expiration of" the subdivision approval. As noted above, subdivision plans do not "expire" unless local government law provides its own expiration. See Cox, supra, at § 15-5.2, p.380. According the words of the Ordinance their normal sense and significance, the variances granted plaintiff with its subdivision approval did not expire.
Defendants maintain that,
notwithstanding its unhandy reference to "expiration" of subdivision and site plan approvals[,] [i]t was clearly the intent of the drafters of Ordinance Section 702(M)(4)(c) to provide for dates certain upon which all variances, including variances associated with site plans and subdivisions, would expire if not implemented, but to allow approval of such variances to be extended along with the subdivisions and site plans which necessitated them.
However, we may not look to the "intent of the drafters" where the plain language of the Ordinance is clear and unambiguous, as it is here. See Commerce Bancorp, Inc., supra, 417 N.J. Super. at 334.
Defendants further claim that:
[a] literal interpretation of the language of Ordinance Section 702(M)(4)(c) which focuses on the "expiration" of site plan or subdivision approvals, (which it is conceded does not occur), would . . . "thwart [the] manifest purpose" of the provision, and make the provision utterly meaningless and without effect. The provision can only have meaning if it is understood to apply to theOf course, we will not interpret a statute or ordinance in such a way that it makes language "superfluous or meaningless." Perrelli v. Pastorelle, 206 N.J. 193, 207 (2011) (citation omitted). However, neither will we write into a statute or ordinance additional language it clearly does not contain. DiProspero v. Penn, 183 N.J. 477, 492 (2005). "Our duty is to construe and apply the statute as enacted." Ibid. (citation omitted). "Courts are cautioned against rewriting a plainly-written enactment of the Legislature or presuming that the Legislature intended something other than that expressed by way of the plain language." Perelli, supra, 206 N.J. at 200 (quoting Hardy v. Abdul-Matin, 198 N.J. 95, 101 (2009)) (internal quotation and editing marks omitted).
"expiration of the period of protection" of the underlying subdivision or site plan approval . . . .
Here, a literal interpretation does not make subsection (c) of the Ordinance superfluous: it gives meaning to the subsection that variances granted in connection with site plan, subdivision or conditional use approvals do not expire unless an expiration is otherwise provided. Defendants have offered nothing to suggest that such a meaning was beyond the intention of the Township. See Turner, supra, 162 N.J. at 84. In enacting Ordinance 702(M)(4), the Township was aware that, by default, subdivision approvals do not "expire." Cf., e.g., Two Guys From Harrison, Inc. v. Furman, 32 N.J. 199, 241 (1960) ("[w]e are required to assume that the Legislature knows the existing statutory law and the judicial decisions interpreting it"). Furthermore, interpreting the Ordinance as defendants suggest would impermissibly read into the Ordinance language it does not contain, namely that subsection (c) applies to the expiration "of the period of protection" of the underlying subdivision approval. See DiProspero, supra, 183 N.J. at 492. Absent language to the contrary, the subdivision approvals did not expire.
ii.
We now address the Permit Extension Act. The Act provides that, "[f]or any government approval in existence during the extension period," defined as January 1, 2007 through December 31, 2012, "the running of the period of approval is automatically suspended for the extension period . . . ." N.J.S.A. 40:55D-136.4a; N.J.S.A. 40:55D-136.3. "Approval" includes "preliminary and final approval granted in connection with an application for development pursuant to the 'Municipal Land Use Law' . . . [N.J.S.A.] 40:55D-1 et seq." as well as a "permit issued pursuant to the 'Flood Hazard Area Control Act' . . . [N.J.S.A.] 58:16A-50 et seq." N.J.S.A. 40:55D-136.3. "It is the purpose of this act to prevent the wholesale abandonment of approved projects and activities due to the present unfavorable economic conditions, by tolling the term of these approvals for a period of time, thereby preventing a waste of public and private resources." N.J.S.A. 40:55D-136.2m.
The trial court found that plaintiff's subdivision approval and NJDEP permit remained valid, even though the subdivision approval may have been vulnerable to new zoning changes during the period it was without statutory protection. Since, as we obviously noted, plaintiff's subdivision approval and NJDEP permit were valid on January 1, 2007, both continued to be valid from January 1, 2007, to the present, and the Act insulated plaintiff from zoning changes made during that period including the ordinances at issue here.
Defendants claim that the Act did not apply to plaintiff's approval for two reasons. First, defendants contend that the approval was invalidated when the Township adopted in 2006 new stormwater ordinances applicable to plaintiff's development. Since the Township adopted these ordinances in 2006, after plaintiff's two-year period of protection from zoning changes had expired but before the start of the Act's extension period, defendants claim that plaintiff's approval was subject to — and therefore invalidated by — those new ordinances. However, defendants cite no authority for the proposition that the enactment of new zoning requirements "invalidates" an approval no longer insulated from zoning changes. Rather, such an approval remains valid, except insofar as the new zoning changes affect it. See Cox, supra, at § 15-5.2, p.380. See also Palatine I, supra, 133 N.J. at 553-54. Furthermore, as we discuss, infra, the Township's 2006 stormwater ordinances did not affect plaintiff's approval because they were pre-empted by the permit issued regarding the Cheddar Close project by the NJDEP.
Second, defendants assert that Ordinance 702(M)(4) caused plaintiff's approval to expire in 2005, and, therefore, the approval was not "in existence" when the Act's extension period began. However, as we discussed supra, Ordinance 702(M)(4) did not cause plaintiff's approval to expire and did not affect the Act's applicability to that approval.
The trial court properly ruled that the Act applied to plaintiff's subdivision approval and NJDEP permit, and protected the Cheddar Close project from zoning changes commencing January 1, 2007.
iii.
We now address the issue as to what effect the NJDEP's permit issued to plaintiff has on the Board's authority to review plaintiff's approvals for stormwater compliance.
"The NJDEP is authorized to 'formulate comprehensive policies for the conservation of the natural resources of the State, the promotion of environmental protection and the prevention of pollution of the environment of the State.'" In re Stream Encroachment Permit, 4 02 N.J. Super. 587, 596 (App. Div. 2008) (citing N.J.S.A. 13:1D-9). "Among numerous other powers, the NJDEP has the power to '[e]nforce the State air pollution, water pollution, conservation, environmental protection, waste and refuse disposal laws, rules and regulations.'" Ibid. (quoting N.J.S.A. 13:1D-9(n)).
"A strong presumption of reasonableness accompanies an administrative agency's exercise of statutorily-delegated responsibility." Gloucester Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). "[T]he burden of proving unreasonableness falls upon those who challenge the validity of the action." Smith v. Ricci, 89 N.J. 514, 525, appeal dismissed, 459 U.S. 962, 103 S. Ct. 286, 74 L. Ed. 2d 272 (1982).
Municipalities also have the right, and in fact the duty, to "prepare a storm water management plan and a storm water control ordinance or ordinances to implement said plan." N.J.S.A. 40:55D-93. See also N.J.A.C. 7:8-2.3(a). Municipalities may impose additional or stricter stormwater management requirements than the NJDEP does. N.J.A.C. 7:8-1.5(a). Once a municipality creates a stormwater management plan and receives approval for that plan by the NJDEP, the NJDEP "will use the adopted regional stormwater management plan as the basis for reviewing the stormwater management aspects of projects or activities regulated pursuant to . . . the Flood Hazard Area Control Act [FHA] rules, N.J.A.C. 7:13 . . . ." N.J.A.C. 7:8-3.10(a)(1).
FHA rules provide that, when issuing an individual permit under FHA rules, the NJDEP shall do so "only if the requirements of the Stormwater Management rules at N.J.A.C. 7:8 are satisfied." N.J.A.C. 7:13-11.2(b). Such a permit is valid for five years from its issuance date. N.J.A.C. 7:13-9.4(a). The NJDEP has the authority to revise, suspend or terminate a permit under certain stated conditions. See N.J.A.C. 7:13-13.3, -14.2, -14.3. Nothing in the FHA rules permits a municipality such as the Township to revise, suspend or terminate such a permit.
While not directly challenging the NJDEP permit issued to plaintiff, defendants urge us to find the permit — which was issued approximately two years before the Township enacted its own stormwater management ordinance and nearly three years before this dispute between plaintiff and defendants arose — an unsatisfactory indicator that the Cheddar Close project was in compliance with the standards of NJDEP's February 2004 Stormwater Management regulations. First, defendants argue that the permit does not relate to the Cheddar Close project because, by its terms, it covers Lots 11.36 and 11.37 of Block 1.01, which plaintiff concedes it does not own. However, the March 2005 request for modification of the permit specifically relocating the proposed basin onto Cheddar Close development property, and its approval by the NJDEP, negates that point. Second, defendants assert that the NJDEP permit did not address stormwater management regulation compliance because the only regulations the permit referenced were the NJDEP's FHA rules. Yet, commentary by the NJDEP's reviewing engineers who recommended the permit's approval noted that "[t]he project is designed to meet all requirements of the new stormwater management rules." Moreover, permits issued under FHA rules must meet stormwater management rules. See N.J.A.C. 7:13-11.2(b). Considering the strong presumption of reasonableness to which the NJDEP's statutorily delegated responsibility is entitled, see Gloucester Cnty. Welfare Bd., supra, 93 N.J. at 390, defendants have failed to meet their burden of challenging the validity of the permit, see Smith, supra, 89 N.J. at 525.
Alternatively, defendants assert that the Township has a "statutorily imposed, independent legal obligation under the Municipal Land Use Law and the Residential Site Improvement Standards . . . to assure that the public health and safety is protected through compliance with NJDEP's current stormwater standards." Defendants further contend that this obligation included assuring that the Cheddar Close project complied with the Township's new stormwater standards as adopted on December 12, 2006 and set forth in Ordinance 2006-3.
The trial court concluded that:
[p]laintiff is entitled to complete the construction of the Cheddar Close subdivision with the stormwater maintenance facilities, including the VorTechnics unit, detention basin and drywells . . . . that have been approved by the [NJDEP] in accordance with the permit issued to the plaintiff by the NJDEP.The court explained:
Maintenance plan review is not intended to provide municipalities a second opportunity to question the appropriateness of the underlying stormwater infrastructure. Instead, maintenance review is intended to insure that previously approved
infrastructure will be adequately maintained
. . . .
Allowing a municipality to condition maintenance plan approval on changes to previously approved infrastructure would essentially grant the municipality the ability to unilaterally void a previous approval. In the present case, it would grant the Township the right to void a previous [NJDEP] approval.
. . . . [N]othing within the [stormwater management] regulatory structure . . . suggest[s] that stormwater maintenance plan review may be used to subsequently overturn a prior grant of stormwater management approval.
Judge Bookbinder's analysis was correct. On October 14, 2004, the NJDEP granted a stream encroachment permit regarding the Cheddar Close project under FHA rules. That permit found that the project met the recently enacted NJDEP stormwater management rules. The permit approved plaintiff's plans, which included a proposed basin and use of a VorTechnics device. That permit was originally set to expire on October 15, 2009. It was not until 2006 — after the NJDEP permit was granted but before it was set to expire — that the Township enacted its own stormwater management plan. Under these circumstances, defendants have no authority to contravene the NJDEP permit. To that end, the Board's Resolution 2009-09 conditioning approval of the Cheddar Close project on the substitution of "other measures" for the VorTechnics system impermissibly contravened the NJDEP permit.
We find no error here.
C.
Defendants next contend that the trial court erred in voiding Ordinance 2007-8. While we agree in principle that the judge erred in voiding the ordinance, any disagreement with the trial judge does not affect the outcome of the appeal, as we conclude that Ordinance 2007-8 does not affect plaintiff.
N.J.S.A. 40:55D-62.1 provides that:
Notice of a hearing on an amendment to the zoning ordinance proposing a change to the classification or boundaries of a zoning district . . . shall be given at least 10 days prior to the hearing . . . to the owners of all real property . . . located, in the case of a classification change, within the district and within the State within 200 feet in all directions of the boundaries of the district . . . .The statute provides, however, that notice need not be given in the case of "classification or boundary changes recommended in a periodic general reexamination of the master plan by the planning board pursuant to [N.J.S.A.] 40:55D-89 . . . ."
N.J.S.A. 40:55D-89 states that "[t]he governing body shall, at least every six years, provide for a general reexamination of its master plan and development regulations by the planning board, which shall prepare and adopt by resolution a report on the findings of such reexamination . . . ." The report shall contain, among other things, "[t]he specific changes recommended for the master plan or development regulations, if any . . . ." N.J.S.A. 40:55D-89d.
We have previously recognized that:
Amendments to N.J.S.A. 40:55D-89 . . . recognized the difference between an amendment to a zoning ordinance . . . or an adoption of a reexamined revised master plan resulting in enabling ordinances to implement such revisions. . . . The former involves compliance with statutory procedures that will generally be time restricted and may well involve public involvement resulting from the specific notice required by the statutes. On the other hand, the master plan review envisioned by N.J.S.A. 40:55D-89 involves . . . extensive public review and analysis by consultants and experts, hearings, general public notice, and in most cases, extensive publicity and notoriety.
[Gallo v. Mayor and Twp. Council, 328 N.J. Super. 117, 125 (2000).]
Gallo addressed N.J.S.A. 40:55D-63, a provision that is parallel to N.J.S.A. 40:55D-62.1, in terms of its notice requirement. Gallo, supra, 328 N.J. Super. at 122-23.
In Gallo, we concluded that "the very nature of periodic review of a master plan preclude[s] it from remaining a secretive process and outside of public oversight and scrutiny." Id. at 126. We based this finding, in part, on the fact that in Gallo, "the master plan reexamination extended in excess of two years involving more than a score of working meetings and public hearings," "[g]eneral notice was provided to the entire municipality," "[t]here was contentious debate on the issues before both the Planning Board and Township Committee," and "the [Land Use Ordinance] was adopted by a split vote of the Township Committee." Id. at 125-26. We further noted the "practical consideration" that the master plan review process "is a dynamic process which may involve hundreds of changes, some major and some minor, during the deliberative and review process," and that "[t]o require individualized and personal notice to those within two hundred feet each time such change is contemplated or proposed would be counterproductive and would essentially stall the review process." Id. at 126. Gallo held that under such circumstances, no personal notice was required. Id. at 127.
More recently, in Cotler v. Township of Pilesgrove, we again held that no personal notice was required where "the rezoning of plaintiffs' properties was the product of an ongoing planning process that started with the preparation of the periodic reexamination report and concluded with the adoption of the amended zoning ordinance plaintiffs challenge . . . ." 393 N.J. Super. 377, 385 (App. Div. 2007).
We specifically rejected the argument that the reexamination report had to explicitly recommend the zoning changes ultimately made:
[a]lthough the reexamination report did not recommend specific changes in the Township's zoning, it concluded that the land use plan should be revised and specifically recommended that the boundaries of the [single-family residential (SR)] district, in which plaintiffs' properties were located, "should be updated." Moreover, the Planning Board resolution adopting the report recommended that "an update to the Township Master Plan and Land Use Ordinance be undertaken to consider the specific issues identified in the Reexamination Report[.]" Following the adoption of the periodic reexamination report, the Board and its planner engaged in a lengthy review of the Township's zoning, which included work sessions open to the public and public hearings. This review culminated in the Board's adoption of a revised land use element, which recommended numerous changes in the Township's zoning, including a reduction in the size of the SR district and the creation of an [agricultural retention] district . . . where plaintiffs' properties are located. The Township Committee subsequently adopted an amended zoning ordinance implementing these recommendations.We concluded that the changes affecting plaintiffs' properties were properly adopted without personal notice. Id. at 385.
[Id. at 384.]
Here, on December 27, 2007, the Township adopted Ordinance 2007-8, which rezoned plaintiff's property to provide for minimum lot sizes of ten acres. Defendants assert that this rezoning occurred based upon the recommendation of a Nitrate Dilution Model Study (Nitrate Study) prepared for the Board in conjunction with a Master Plan Periodic Re-examination Report (Re-examination Report).
The Re-examination Report, which was dated and adopted by the Board on July 17, 2007, noted that:
The current position of the Township is that the Land Use Plan should not be simple in terms of formulation but should have a scientific basis. The findings from the application of a nitrate dilution model should form the scientific basis for minimum lot sizes. This will ensure sound land use development that protects the Township's groundwater supply and environmental resources.
The Nitrate Study, dated June 13, 2007, found that "the carrying capacities of the Township range from a low of 4.8 acres per septic system to a high of 6.7 acres per septic system, with an area weighted average carrying capacity of 5.4 acres per septic system." It included a map labeled "Nitrate Dilution Based Carrying Capacity," which defendants assert shows plaintiff's lands as "requiring a minimum of 5.6 acres per septic system."
According to the Board's minutes, the Re-examination Report and the Nitrate Study, as well as their impact on minimum lot sizes, were discussed during at least nine Board meetings between February 20, 2007 and November 20, 2007. Four of the meetings held — on July 17, August 21, September 18, and October 16 — involved public hearings on the Re-examination Report, though no public comments were made.
The meeting notes for July 17, 2007, state, under the heading "Master Plan Re-examination":
Of particular note was the Nitrate Dilution Study which determined that the acreage required to dilute or absorb a certain nitrate load from septic sewage disposal systems was increased to over five acres in most of the Township. There was extensive discussion on this, and the Board agreed that this was serious and that the minimum zoning for the Township residential/ agricultural areas should have their lot size increased substantially to properly allow for nitrate loads on septic systems.
The Board adopted a Master Plan Land Use Element Update (LUE Update) on October 16. The LUE Update recommended that the Agricultural Residential (AR) district minimum lot size be increased to ten acres based on "a number of considerations," including "the existing character of the district where the majority of the district area consists of lots over 10 acres in size," "the goals and objectives" noted in the Re-examination Report, and the Nitrate Study.
On November 20, the Board passed a resolution adopting the LUE Update and reviewed proposed land development ordinances, including the ten-acre-minimum zoning requirement. The Board adopted Ordinance 2007-8 on December 27. The preamble to the ordinance acknowledges that its purpose was to enact the revisions made to the Master Plan and Land Use Element in accordance with the Re-examination Report.
Plaintiff claims it did not receive, and defendants did not provide, mailed notice regarding the adoption of Ordinance 2007-8. Defendants do not challenge this allegation. No party contends that defendants failed to provide general public notice to the extent required.
The trial court held that the "cryptic statement" in the Re-examination Report that "a nitrate dilution model study should be utilized to determine appropriate minimum lot sizes" was "insufficient to put a landowner on notice that their property may be rezoned," and as a result, "[s]pecific notice to affected property owners was required under the MLUL and Ordinance 2007-8 is hereby void."
We are concerned about the trial court's holding that Ordinance 2007-8 is void with regard to plaintiff. Although the reference in the Re-examination Report to the Nitrate Study was arguably unspecific, plaintiff's property was zoned in conjunction and accordance with the Township's periodic general re-examination of the master plan pursuant to N.J.S.A. 40:55D-89. Not only did the Re-examination Report reference the Nitrate Study, the significance of that study and its findings were discussed at multiple Board meetings, the LUE Update specifically noted the rezoning and the purposes for it, and Ordinance 2007-8 acknowledged in its preamble that it was enacted pursuant to the re-examination.
The trial court's finding that the reference to the Nitrate Study in the Re-examination Report was "insufficient to put a landowner on notice that their property may be rezoned" is not supported by existing case law. As defendants aptly point out, "the trial court improperly perceived the Re-Examination Report as merely a vehicle for proxy service of notice, instead of a vital component of a vigorous planning effort." Neither Gallo nor Cotler require that a re-examination report contain enough specificity to "put a landowner on notice that their property may be rezoned"; rather, in both cases, we concluded that notice is not required where rezoning occurs based on periodic re-examination conducted in accordance with N.J.S.A. 40:55D-89. See Cotler, supra, 393 N.J. Super. at 385 (holding that no notice is necessary where rezoning is "the product of an ongoing [periodic re-examination] process"); Gallo, supra, 328 N.J. Super. at 124 (noting that "[c]ommentators have interpreted the change to mean just what it says: 'Zoning changes, if made on the basis of a reexamination report for the Planning Board, may be enacted without complying with the notice requirements . . .'"). In Gallo, we observed that the inherent nature of the periodic review process, not the specific findings or recommendations themselves, "precluded it from remaining a secretive process" and further emphasized the "practical consideration" that to require individualized and personal notice for each change or proposal contemplated in a periodic re-examination "would be counterproductive and would essentially stall the review process." Gallo, supra, 328 N.J. Super. at 126.
Plaintiff asserts that the Re-examination Report "does not recommend 10 acre zoning, or any other rezoning, and it therefore cannot possibly form the basis for a finding that direct notice of the ultimately adopted 10 acre rezoning was not required." However, as we noted in Cotler, a re-examination report need not recommend the specific changes adopted by a township as long as the specific changes are based upon and consistent with general recommendations made by the report. See Cotler, supra, 393 N.J. Super. at 384 ("[a]lthough the reexamination report did not recommend specific changes in the Township's zoning, it concluded that the land use plan should be revised and specifically recommended that the boundaries of the SR district, in which plaintiffs' properties were located, 'should be updated'").
Plaintiff further asserts that:
while the principle underlying [Cotler and Gallo] is that the direct notice obligation . . . may be excused if there have been well-publicized planning board proceedings regarding rezonings proposed during the master plan re-examination process, the defendants in this case did everything they could to proceed as stealthily as possible. Indeed, they did not even advise plaintiff of their months-long master plan revision or rezoning efforts even as they were asking plaintiff for an endless list of revised plans throughout 2007. It has become obvious in retrospect that defendants were just "playing for time" as they secretly scurried to rezone plaintiff's property.However, plaintiff provides nothing to support the claim that defendants acted "secretly" or "stealthily." Essentially, plaintiff argues that defendants owed plaintiff a special duty of notice where plaintiff and defendants were in the process of negotiating a land use and variance approval dispute while the periodic re-examination was underway. As plaintiff argued before the trial court:
I think it's rather shocking that the town and its consultants had discussions with my client and their consultants for almost a year without so much as mentioning that they were busily working on this 10-acre zoning to put the kibosh on his development . . . . I don't think it's directly relevant to this issue of notice under section 62.1, but it's certainly something that municipalities just should not do. That's not fair dealing.
The argument is counter to the purpose of N.J.S.A. 40:55D-89 as we discussed in Gallo and Cotler. A municipality may be engaged in multiple disputes and negotiations involving land use and variance approval while simultaneously dealing with a periodic re-examination. Just as requiring individualized and personalized notice for each change or proposal contemplated in a periodic re-examination "would be counterproductive and would essentially stall the review process," so would requiring individualized and personalized notice to all parties involved in active disputes as new changes or proposals arise that affect those disputes. See Gallo, supra, 328 N.J. Super. at 126.
We eschew the suggestion that N.J.S.A. 40:55D-62.1 and -89 should apply differently to large municipalities as opposed to small ones, or municipalities with a large versus small number of developers. These statutes make no such distinction. The fact that here there were only two active approvals in the Township is of no moment.
While we conclude that the trial judge erred as to this issue, it does not change the ultimate result of this appeal. As we previously noted, the Permit Extension Act protected plaintiff's approval from zoning changes made between January 1, 2007 and December 31, 2012. As Ordinance 2007-8 was enacted on December 27, 2007 — within the Act's extension period — plaintiff's approval was insulated from the ten-acre rezoning. Ultimately, the result remains the same, and we affirm the decision of the trial judge.
III.
We now address the cross-appeal. Although some of the issues raised on the cross-appeal are rendered moot by our decision on the direct appeal, other issues require our attention.
A.
While our reversal would appear to obviate the necessity of addressing the Mayor's participation in the land use process as it applies to plaintiff's development, the record does not inform us as to whether he is still in office and what further steps must be taken to bring the development process to a conclusion. Accordingly, we will address the Mayor's participation and the claim that he should be enjoined from further participation in planning and zoning decisions affecting plaintiff's property. The factual basis of this issue is predicated on the Mayor having an interest in farming the land upon which the Cheddar Close subdivision is to be built. The trial judge concluded that the Mayor had no inherent conflict of interest.
We agree.
As mayor, Roohr was an ex officio member of the planning board. See Bracey v. City of Long Branch, 73 N.J. Super. 91, 95 (App. Div. 1962). By statute, "[n]o member of the planning board shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest." N.J.S.A. 40:55D-23b. The statute "codifies the common-law rule that '[a] public official is disqualified from participating in judicial or quasijudicial proceedings in which the official has a conflicting interest that may interfere with the impartial performance of his duties as a member of the public body.'" Randolph v. City of Brigantine Planning Bd., 405 N.J. Super. 215, 225 (App. Div. 2009) (quoting Wyzykowski v. Rizas, 132 N.J. 509, 523 (1993)). The mere existence of an interest requires invalidation of the official action. Id. at 226.
Furthermore, "it is not simply the existence of a conflict that may be cause to overturn an action of a public official, but also the appearance of a conflict." Ibid.
Public confidence requires that municipal officials avoid conflicting interests that convey the perception that a personal rather than the public interest might affect decisionmaking on matters of concern. Officials must be free of even the potential for entangling interests that will erode public trust in government actions. Thus, it is the potential for conflict, rather than proof of an actual conflict or of
actual dishonesty, that commands a public official to disqualify himself from acting on a matter of public interest.
[Id. at 226-27 (citing Thompson v. City of Atlantic City, 190 N.J. 359, 374 (2007)).]
Nevertheless, the appearance of impropriety must be "'something more than a fanciful possibility. It must have some reasonable basis.'" Id. at 227 (quoting Higgins v. Advisory Comm., 73 N.J. 123, 129 (1977)). The Court has noted that
[l]ocal governments would be seriously handicapped if every possible interest, no matter how remote and speculative, would serve as a disqualification of an official. If this were so, it would discourage capable men and women from holding public office. Of course, courts should scrutinize the circumstances with great care and should condemn anything which indicates the likelihood of corruption or favoritism. But in doing so they must also be mindful that to abrogate a municipal action at the suggestion that some remote and nebulous interest is present, would be to unjustifiably deprive a municipality in many important instances of the services of its duly elected or appointed officials.
[Van Itallie v. Borough of Franklin Lakes, 28 N.J. 258, 269 (1958).]
In determining whether a reasonable basis exists, we "'adopt[] the perspective of an informed citizen.'" In re Bator, 395 N.J. Super. 120, 127 (App. Div.) (quoting In re Opinion No. 653, 132 N.J. 124, 132 (1993)), certif. denied, 193 N.J. 222 (2007). See also Randolph, supra, 405 N.J. Super. at 227 (describing the relevant question as "Would an impartial and concerned citizen, intelligent and apprised of all the facts in the situation, feel that there was the potential for non-objectivity on the part of the officeholder making a decision?"). Finally, "[d]etermining whether a conflict exists requires a case-by-case, fact-sensitive analysis." Id. at 224. See also Van Itallie, supra, 28 N.J. at 268.
Plaintiff contends that Roohr farmed land upon which Cheddar Close is located, both before and after plaintiff purchased the land. Moreover, plaintiff claims that its "purchase of the land and development-related activities had the effect of requiring defendant Roohr to cease his farming activities on the land."
Roohr's response indicates a contrary factual scenario. In his certification, Roohr stated that he "elected not to continue farming the Cheddar Close property when its ownership changed," and that the five acres he once farmed at Cheddar Close was "a small component of [his] farming operation," which included over 500 acres of owned or leased land. Roohr further asserted that "[p]laintiff's development-related activities on the Cheddar Close site did not require me to cease farming the land because I had already done so almost two years prior to [p]laintiff's commencement of work."
The trial court found that "Mayor Roohr's farming of the property took place years prior to the rezoning of [p]laintiff's land and therefore, was too attenuated to constitute a conflict of interest warranting his disqualification."
We agree with the trial judge. Under the circumstances presented here, Roohr's interest in the land appears too remote, speculative and attenuated to constitute a conflict of interest warranting his disqualification from Board decisions or actions regarding Cheddar Close or the invalidation of those actions based on Roohr's participation. We affirm the order denying plaintiff relief as to Roohr's disqualification.
B.
Plaintiff next argues that it should not be subject to affordable housing development fees under the Substantive Rules of the New Jersey Council on Affordable Housing for the Period Beginning on June 2, 2008, N.J.A.C. 5:97-1.1 to -10.5 (COAH regulations). Specifically, plaintiff argues that, despite the fact that the COAH regulations "inartfully" exempt from new fees only preexisting final "site plan" approval, the intent of the COAH regulations was to exempt final subdivision approvals as well.
Effective August 29, 2011, COAH was "abolished" and its powers and duties were transferred to the Commissioner of the Department of Community Affairs (DCA). In September 2011, the DCA issued new interim procedures exercising its new authority. Subsequently, the DCA proposed new rules, amendments, and repeals of certain rules previously promulgated by COAH. 43 N.J.R. 3069-74 (November 21, 2011). These proposals are currently in the process of being approved pursuant to the Administrative Procedures Act, N.J.S.A. 52:14B-1 to -15. We decide this case without reference to these pending modifications.
We have previously addressed the principles of statutory interpretation, and we do not repeat them here.
The COAH regulations provide in pertinent part that "[r]esidential developments that have received preliminary or final site plan approval prior to the adoption of a municipal development fee ordinance shall be exempt from development fees . . . ." N.J.A.C. 5:97-8.3(e)(3).
By its plain language, the fee exemption applies only to final "site plan" approvals, not final subdivision approvals. This is a distinction with a difference. Under the MLUL, site plans and subdivision plans refer to different activities and processes. The MLUL defines "site plan" as:
a development plan of one or more lots on which is shown (1) the existing and proposed conditions of the lot, including but not necessarily limited to topography, vegetation, drainage, flood plains, marshes and waterways, (2) the location of all existing and proposed buildings, drives, parking spaces, walkways, means of ingress and egress, drainage facilities, utilityIt defines "subdivision" as "the division of a lot, tract or parcel of land into two or more lots, tracts, parcels or other divisions of land for sale or development." N.J.S.A. 40:55D-7.
services, landscaping, structures and signs, lighting, screening devices, and (3) any other information that may be reasonably required in order to make an informed determination pursuant to an ordinance requiring review and approval of site plans by the planning board . . . .
[N.J.S.A. 40:55D-7.]
Also, the COAH regulations specifically define "final approval" as including both site and subdivision plans, N.J.A.C. 5:97-1.4, yet the fee exemption used the more restrictive term "final site plan approval."
We abide by the plain language of the COAH regulations as a whole and conclude that the fee exemption does not apply to subdivision approvals. See Perelli, supra, 206 N.J. at 200 (noting that statutes should be read "in context with related provisions so as to give sense to the legislation as a whole"). To do otherwise would make the inclusion of the words "site plan" in the fee exemption superfluous as the term "final approval" already included site plan approval by definition. See ibid.
Plaintiff cites to a prior version of this fee exemption, specifically N.J.A.C. 5:93-8.12(d), as support for its position. Plaintiff asserts that this prior version, which provided that "[d]evelopments that have received preliminary or final approval prior to the imposition of a municipal development fee shall be exempt from development fees . . . ," exempted final subdivision approvals, and that as a result the current COAH regulations intended to exempt them as well. However, the prior version of the fee exemption refutes plaintiff's argument. The Legislature knew what language had been used in the past, yet decided to change it. See Two Guys From Harrison, supra, 32 N.J. at 241.
Plaintiff also relies on the MLUL provisions governing preliminary and final approvals as "vest[ing] against the imposition of subsequently imposed fees." However, those approvals vest only against zoning changes, see N.J.S.A. 40:55D-52, or "the general terms and conditions" of the approval, see N.J.S.A. 40:55D-49, not the imposition of newly enacted affordable housing fees.
We conclude that plaintiff was subject to new affordable housing fees.
C.
Finally, plaintiff asserts that it is entitled to attorney's fees and costs pursuant to the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, and that the trial court erred in ruling to the contrary. Specifically, plaintiff contends that (1) "[d]efendants clearly violated a variety of state and federal laws and constitutional standards," (2) the "shocks the conscience" standard does not apply in this case, and (3) even if that standard does apply, defendants' conduct meets that standard.
The CRA provides that:
[a]ny person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State . . . may bring a civil action for damages and for injunctive or other appropriate relief.In a CRA claim, "the court may award the prevailing party reasonable attorney's fees and costs." N.J.S.A. 10:6-2f.
[N.J.S.A. 10:6-2c]
The Legislature adopted the CRA "for the broad purpose of assuring a state law cause of action for violations of state and federal constitutional rights and to fill any gaps in state statutory anti-discrimination protection." Owens v. Feigin, 194 N.J. 607, 611 (2008) (citation omitted). The CRA was modeled after 42 U.S.C.A. § 1983. Rezem Family Assoc., LP v. Borough of Millstone, 423 N.J. Super. 103, 114-15 (App. Div.) (holding that a claim of substantive due process violation under the CRA arising from land use decisions must show that the official action "shocks the conscience"), certif. denied, 208 N.J. 366 (2011). The CRA has been interpreted analogously with § 1983. See Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011).
Under § 1983, a person's substantive due process claim is generally cognizable only where the state action "shock[s] the conscience" of the court. Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 365 (1996) (citation omitted). See also Chavez v. Martinez, 538 U.S. 760, 774, 123 S. Ct. 1994, 2005, 155 L. Ed. 2d 984, 998 (2003). The Third Circuit has held that the "shocks the conscious" standard does not apply to legislative actions. Cnty. Concrete Corp. v. Twp. of Roxbury, 442 F.3d 159, 169 (3d Cir. 2006). "[T]ypically, a legislative act will withstand substantive due process challenge if the government 'identifies the legitimate state interest that the legislature could rationally conclude was served by the statute.'" Ibid. (quoting Nicholas v. Pa. State Univ., 227 F.3d 133, 139 (3d Cir. 2000)).
"To establish a cause of action [under the CRA], a plaintiff must allege a specific constitutional violation." Matthews v. N.J. Inst. of Tech., 717 F. Supp. 2d 447, 452 (D.N.J. 2010) (citing N.J.S.A. 10:6-2(c)).
The trial court held that plaintiff was not entitled to attorney's fees under the CRA because plaintiff "did not allege a cognizable claim under the CRA and there was an insufficient record to support an award of attorneys fees." The trial judge found:
Plaintiff . . . has not provided any cases suggesting that differing standards should apply to executive violations of substantive due process or substantive rights . . . . [I]t [is] not the trial court's role to expand the law. Thus . . . a uniform "shocks the conscience" standard should apply to all of the executive violations in this case and a standard of "arbitrariness" or "irrationality" should apply to all of the alleged legislative [actions].
[Plaintiff did not allege] any conscience shocking behavior on the part of [defendants]. While there was clearly wrongful behavior . . . this behavior did not rise to the requisite level of "shocks the conscience." Therefore . . . the legislative rezoning of plaintiff's property, although inappropriate, was [not] entirely arbitrary or irrational.
[(Citations omitted).]
We agree with the trial judge. Plaintiff did not allege which specific constitutional rights defendants violated.Plaintiff states its claim only in general terms, such as by saying defendants "clearly violated a variety of state and federal laws and constitutional standards." To the extent plaintiff bases its CRA claim on the violation of the United States Constitution, the New Jersey Constitution, or any laws other than those specifically pled in earlier counts of the complaint, plaintiff failed to properly articulate his CRA claim. See Matthews, supra, 717 F. Supp. 2d at 452. Second, plaintiff has failed to demonstrate why a claim under the CRA — be it based on the alleged violation of the United States Constitution, the New Jersey Constitution, or New Jersey laws — should be viewed under standards different from those applicable to § 1983 cases. See Rezem Family Assoc., supra, 423 N.J. Super. at 115 (noting that the CRA was modeled after § 1983). See also Trafton, supra, 799 F. Supp. 2d at 443 (noting that the CRA has repeatedly been interpreted as analogous to § 1983). Third, defendants' actions, though improper, failed to rise to the high level of shocking the conscience (regarding its non-legislative actions) or of being arbitrary or irrational (regarding its legislative actions).
Plaintiff's Complaint did allege a claim for an unlawful taking. However, the trial court dismissed this claim, and plaintiff did not challenge this decision on appeal.
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Our consideration of the propriety of the trial judge's decision regarding counsel fees is reviewed under an abuse of discretion standard. See Rezem Family Assoc., supra, 423 N.J. Super. at 123. In denying counsel fees, the trial judge correctly distinguished between wrongful action and that which would "shock the judicial conscience." His analysis and reasoning was sound, and we conclude that the denial of fees was not an abuse of discretion.
IV.
We affirm the judgment of the Law Division on both the appeal and cross-appeal.