NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Transcription

1 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. FRANK PAGANO, v. Plaintiff-Respondent, WOOLWICH TOWNSHIP JOINT LAND USE BOARD; MAIN STREET AT WOOLWICH, LLC; WOOLWICH COMMONS, LLC; and WOOLWICH CROSSINGS, LLC, Defendants-Respondents. BENJAMIN AMMONS, v. Plaintiff-Appellant, MAIN STREET AT WOOLWICH, LLC; WOOLWICH, LLC; WOOLWICH CROSSINGS, LLC; and THE JOINT LAND USE BOARD OF WOOLWICH TOWNSHIP, Defendants-Respondents. Argued April 14, 2015 Decided August 7, 2015 Before Judges Hayden and Sumners. On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L and L

2 PER CURIAM R.S. Gasiorowski argued the cause for appellant Benjamin Ammons (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, on the brief). Stephen R. Nehmad argued the cause for respondents Main Street at Woolwich (Nehmad Perillo & Davis and Kaplin Stewart Meloff Reiter & Stein, attorneys; Mr. Nehmad and Tracy A. Siebold, on the brief). Michael A. Aimino argued the cause for respondents Woolwich Township Joint Land Use Board (Aimino & Deenen, attorneys; Mr. Aimino, on the brief). Plaintiff Benjamin Ammons appeals from an April 24, 2014 Law Division order granting summary judgment to defendants Main Street at Woolwich, LLC, Woolwich Commons, LLC, and Woolwich Crossings, LLC (collectively "Landowner") and Woolwich Township Joint Land Use Board (Board). Ammons' complaint alleged the Board erred by approving the Landowner's application for a general development plan (GDP) in 2010 and its subsequent amendment in After reviewing the record in light of the applicable law, we affirm. I. The Landowner acquired an interest in certain property located in Woolwich Township from its predecessor-in-interest Woodbury Adult, LLC (Woodbury Adult). Woodbury Adult had initiated and settled Mt. Laurel 1 litigation against Woolwich in a 1 S. Burlington Cnty. NAACP v. Twp. of Mt. Laurel, 67 N.J. 151 (1975). 2

3 comprehensive agreement that addressed proposed residential and non-residential development on the property in As part of the settlement, Woodbury Adult agreed to apply for a GDP. After entry of the settlement, the trial court entered a judgment of repose from further Mt. Laurel litigation in Pursuant to the settlement, in 2008, Woolwich amended its zoning ordinance specifically addressing, among other things, the development of this property. In 2010, the Landowner proposed a GDP encompassing several hundred acres along the Route 322 corridor in Woolwich Township to the Board, which granted its approval in a seventeen-page resolution on July 15, Essentially, the project consisted of three separate retail and commercial developments, each with its own time frame. The first phase, Woolwich Commons, consisted of more than 500,000 square feet and was scheduled to be completed within ten years. The second phase, called Woolwich Crossings, consisted of about 225,000 square feet and was scheduled to be completed within fifteen years. The final phase was called Main Street at Woolwich, which consisted of 650,000 square feet, and was scheduled to be completed within twenty years. The Landowner and Woolwich Township executed a Developer's Agreement for the project on June 25, 2011, which required the Landowner to obtain sewer and water for all phases. 3

4 On September 20, 2012, the Board considered the Landowner's application for an amended GDP (AGDP) and approved the plan on December 6, The Landowner's application proposed three changes: (1) the addition of forty-one acres to the GDP without a specific plan for the land at the time; (2) an increase in retail and commercial space of the Woolwich Commons parcel by about 60,000 square feet and additional outdoor sales space of about 15,000 square feet; and (3) a change in the phasing dates to begin on the date of approval of the AGDP rather than the GDP. After a hearing, the Board approved the requested changes. Subsequently, two residents of Woolwich, Frank Pagano 2 and Ammons, filed actions in lieu of prerogative writs to challenge the Board's approval. Ammons filed his complaint on January 17, 2013, pleading seven counts challenging certain Board action, including: the change of the phasing dates; the failure to provide sufficient water and sewer resources; the inclusion of additional land in the plan without a specific development plan; general violations of provisions of the Municipal Land Use Law (MLUL); 3 the grant of variances without sufficient information; the failure 2 The trial court consolidated the cases, but Pagano did not appeal from the grant of summary judgment. 3 N.J.S.A. 40:55D-1 to

5 to set forth findings of fact and conclusion of law; and inadequate notice. After the complaint was filed, the Landowner applied to the Board for approval of a second amended GDP (SAGDP). The SAGDP proposed to include some of the unallocated land added by the AGDP into the Woolwich Crossings portion of the project. On April 18, 2013, the Board voted to approve the SAGDP and finalized its action on June 20, Ammons did not amend his complaint to include a challenge to the SAGDP. On September 26, 2013, the Landowner filed a motion to dismiss or for summary judgment; shortly thereafter, the Board also filed a similar motion. After hearing oral argument, the trial court denied the motion to dismiss and ordered additional briefing. After the parties submitted their supplemental briefs, the trial judge granted summary judgment to defendants on April 24, 2014 and dismissed the plaintiffs' complaints with prejudice. In its statement of reasons, the court found that the municipal ordinance authorizing the Board to approve GDPs was valid, and that plaintiffs' challenge to the ordinance was barred as untimely under Rule 4:69-6(a) as was any substantive challenge to the GDP. Concerning the AGDP, the court rejected the allegations that the AGDP did not adequately address sewer and water availability, finding that the Landowner did more than the 5

6 statute required. The court also found that the addition of fortyone acres in the AGDP without a specific plan for development was not prohibited by the ordinance or the MLUL. Additionally, the court rejected plaintiffs' argument over the changing of the phasing dates, noting that the twenty-year maximum period for GDPs did not run until "the developer receives final approval of the first section of the planned development." Finally, the court found that in approving the AGDP, the Board made the required general findings. This appeal followed. II. On appeal, Ammons raises several arguments for our consideration. First, he argues that the amendment to Woolwich's ordinances which permitted the development of GDPs on the specific property at issue did not properly grant the Board the authority to approve a GDP, thereby making the GDP and its amendments void. He also claims that since the GDP was void, any challenge to the GDP and its amendments was timely. He further contends that the GDP approval was deficient for not containing the necessary findings. He also maintains that the AGDP approval was not valid because the developer did not demonstrate the availability of water and sewer, and added additional acres without a specific proposal for their use. Finally, he contends that the Board did not have the authority to grant changes in the timing of the phases 6

7 of each development because it was bound by the twenty-year period of the initial GDP approval. We are unpersuaded by these arguments. We begin with a review of the well-established legal principles that guide our analysis. As a threshold matter, when reviewing a trial court's determination of the validity of an action taken by a land use board, we are bound by the same standard as the trial court. N.Y. SMSA, Ltd. P'ship v. Bd of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). Thus, we give substantial deference to findings of fact, Pomerantz Paper Corp. v. New Community Corp., 207 N.J. 344, 362 (2011), but review de novo those "interpretations of the law and the legal consequences that flow from established facts...." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We have long recognized that "because of their peculiar knowledge of local conditions," municipal land use boards "must be allowed wide latitude in their delegated discretion." Jock v. Zoning Bd. of Adjustment, Twp. of Wall, 184 N.J. 562, 597 (2005); accord Booth v. Bd. of Adjustment of Rockaway Twp., 50 N.J. 302, 306 (1967). The MLUL is "a comprehensive statute that allows municipalities to adopt ordinances to regulate land development 'in a manner which will promote the public health, safety, morals 7

8 and general welfare' using uniform and efficient procedures." Rumson Estates, Inc. v. Mayor & Council of Fair Haven, 177 N.J. 338, 349 (2003) (citing N.J.S.A. 40:55D-2a). Zoning ordinances enacted pursuant to these principles, which are enumerated in N.J.S.A. 40:55D-2, are entitled to a presumption of validity. Riggs v. Twp. of Long Beach, 109 N.J. 601, (1988). A party challenging the zoning ordinance has the burden of overcoming the presumption. N.J. Shore Builders Ass'n v. Twp. of Jackson, 401 N.J. Super. 152, 161 (App. Div. 2008) (citing Ward v. Twp. of Montgomery, 28 N.J. 529, 539 (1959)). Like other laws enacted by local governments, zoning laws are liberally construed in the municipality's favor. Rumson Estates, supra, 177 N.J. at 351. The MLUL defines a GDP as "a comprehensive plan for the development of a planned development...." 4 N.J.S.A. 40:55D- 4. "The planned development shall be developed in accordance with the [GDP] approved by the planning board notwithstanding any provisions of [the MLUL]." N.J.S.A. 40:55D-45.1(a). N.J.S.A. 40:55D-45.1(b) provides that "the term of the effect of the [GDP] approval... shall not exceed 20 years from the date upon which the developer receives final approval of the first section of the planned development...." Consequently, "[t]he developer is 4 A "planned development" is defined broadly by reference to various types of developments, each of which is defined in the MLUL. N.J.S.A. 40:55D-6. 8

9 protected from zoning changes for a period to be set by the planning board, not to exceed twenty years." Citizens United to Protect the Maurice River and Its Tributaries, Inc. v. City of Millville Planning Bd., 395 N.J. Super. 434, 446 (App. Div. 2007) (emphasis added). N.J.S.A. 40:55D-45.6(a) provides that "once a general development plan has been approved by the planning board, it may be amended or revised only upon application by the developer approved by the planning board." These provisions were part of comprehensive legislation adopted in 1987, see L. 1987, c. 129, that also permitted municipalities to enact ordinances containing discretionary provisions specific to planned developments. N.J.S.A. 40:55D- 39(c). Such ordinances may confer upon the planning board the authority "to grant [GDP] approval to provide the increased flexibility desirable to promote mutual agreement between the applicant and the planning board on the basic scheme of a planned development...." N.J.S.A. 40:55D-39(c)(1); Citizens United, supra, 395 N.J. Super. at 447; see also Cox & Koenig, N.J. Zoning and Land Use Administration, (2015). In addressing these amendments to the MLUL, we have said that "the entire GDP process is intended to be general in nature and to provide the increased flexibility desirable to promote mutual agreement between a developer and planning board regarding the basic scheme of a 9

10 planned development[.]" Citizens United, supra, 395 N.J. Super. at 448. III. Ammons first contends that the trial court erred in holding that his appeal concerning the original GDP was untimely. This action was brought pursuant to Rule 4:69, which governs actions in lieu of prerogative writs. "No action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing or relief claimed, except as provided by paragraph (b) of this rule." R. 4:69-6(a). Paragraph (b) provides that in the case of a planning board or board of adjustment that approves an application, any challenge must be filed before "45 days from the publication of a notice once in the official newspaper of the municipality or a newspaper of general circulation in the municipality...." R. 4:69-6(b)(3). There is no dispute that Ammons' complaint was only filed within fortyfive days of the AGDP, not the GDP. The forty-five day time period can be enlarged "where it is manifest that the interest of justice so requires." R. 4:69-6(c). Ammons does not request that the time limit be enlarged in the interest of justice. Rather, Ammons argues that, even though he did not challenge the GDP in 2010, he was entitled to challenge the GDP in 2013 because the Board did not have the authority to 10

11 approve GDPs and thus the GDP approval was void from the beginning. He contends that since his argument is jurisdictional, the time limit in Rule 4:69-6 does not apply. 5 Because we find that the Board had the authority to approve GDPs, we need not delve into the complex issue of whether the Board's action was void or voidable. The record shows that in 2008 the municipality developed an ordinance entitled "Woolwich Regional Center and Auburn Road Village Regulations and Design Standards" and amended the zoning ordinance as required by the MLUL. This almost two-hundred page ordinance, known as Part 2 of the zoning ordinance, controlled two specified areas, including the area "along the Route 322 corridor," which is where the GDP at issue was located. Although included in the zoning ordinance, Part 2 stated that for the areas covered by the ordinance it "supersede[d] any of the other provisions of the Township Subdivision and Land Development Ordinance or Zoning Ordinance as they apply to the Township as a whole." Woolwich, 5 While actions beyond the jurisdiction of a municipality can be challenged in certain instances even if the challenge was not timely made, "'there is a distinction between an act utterly beyond the jurisdiction of a municipal corporation and the irregular exercise of a basic power under the legislative grant in matters not in themselves jurisdictional.'" Heyert v. Taddese, 431 N.J. Super. 388, 429 (App. Div. 2013). An action that is challenged as an irregular exercise of a power that was granted by the legislature will not be permitted to move forward if not timely raised. See ibid. 11

12 N.J., Ordinance No (hereinafter "Woolwich Ordinance") (October 27, 2008). It also stated that "in the event of any inconsistencies or contradictions, this Part 2 shall be deemed as controlling over those lands located in the two [c]enters." Ibid. The ordinance articulated numerous goals and purposes but also stated that it was an "enabling ordinance." Woolwich Ordinance The ordinance clearly authorized the Board to consider GDPs according to the statutory requirements for such plans in the MLUL. In the event any single property owner or consortium of property owners owns properties consisting of 15 acres or more, he/she or it may apply to the Joint Land Use Board for General Development Plan (GDP) approval for its portions of either center and shall be subject to the provision of N.J.S.A. 40:55D- 45 et seq. regarding GDP review and approvals. [Woolwich Ordinance, D.] Part 2 also empowers the Board to review and approve the phasing schedule, Woolwich Ordinance , approve deviations from Part 2 standards, Woolwich Ordinance , and approve "variances, waivers and/or deviations from the provisions of... Part 2[.]" Woolwich Ordinance Moreover, the Board had the power to review applications for GDPs for minor subdivisions, Woolwich, N.J., Ordinance No (hereinafter "JLUB Ordinance") (October 1, 2007), major subdivisions, 12

13 JLUB Ordinance 23-25, 23-26, and site plan approval. JLUB Ordinance We reject Ammons' claim that this substantial and specific ordinance does not authorize the Board to review and approve GDPs because Part 2 is in the zoning ordinance and not in the JLUB ordinance that establishes the powers and duties of the Board. The MLUL permits a municipality to authorize the planning board to grant GDP approval "to promote the increased flexibility desirable to promote mutual agreement between the applicant and the planning board on the basic scheme of a planned development... " N.J.S.A. 40:55D-39(c)(1). The statute does not set forth any specific language that the municipality must use or specify where in its ordinances the authorization must be placed. It is necessary to look at all land use ordinances in the municipality to understand its intent in passing Part 2. "[A] legislative provision should not be read in isolation or in a way which sacrifices what appears to be the scheme of the statute as a whole without undue emphasis on any particular word or phrase and, if possible, in a manner which harmonizes all its parts so as to do justice to its overall meaning." [Chasin v. Montclair State Univ., 159 N.J. 418, 427 (1999) (quoting Zimmerman v. Municipal Clerk of Twp. of Berkeley, 201 N.J. Super. 363, 368 (App. Div. 1985)). See also In re Passaic Cnty. Utils. Auth., 164 N.J. 271, 300 (2000).] 13

14 The intent and purpose of Part 2 plainly included submission of GDPs to the Board for its consideration. Thus, we reject Ammons' claim that the Board did not have the authority to consider the original GDP or its amendments. Consequently, we agree with the trial judge that the filing of the prerogative writs action concerning the 2010 GDP was untimely. IV. Next, Ammons argues that the AGDP was "invalid" due to several deficits. Ammons contends that the AGDP failed to make required findings for an approval of a GDP. Initially, we note that Ammons' challenge to the Board's factual findings rests on facts that did not change from the GDP to the AGDP. Thus, this challenge is barred because Ammons failed to challenge the alleged inadequacy in the GDP at the time of its approval. See Cortesini v. Hamilton Twp. Planning Bd., 417 N.J. Super. 210, 216 (App. Div. 2010). Furthermore, our review of the GDP shows the resolution approving the AGDP contains adequate fact-finding. An application for a GDP is a precursor to a subdivision or a site plan application. Citizens United, supra, 395 N.J. Super. at 450. It is an optional procedure that permits a planning board and a developer to agree on an overall scheme for development. Ibid. 14

15 When reviewing GDP applications, boards are to consider them "in a general matter, but with a view to determining whether, so considered, those elements would establish that the proposed development" satisfies the requirements of N.J.S.A. 40:55D-45. See Citizen's United, supra, 395 N.J. Super. at 451 (discussing the N.J.S.A. 40:55D-45(d) requirement that a planned development not have an unreasonable adverse impact on the area of the project). Concerning information required by the Board at the GDP phase, "a more general type of information might be sufficient to establish no unreasonably adverse impact... whereas, at a later stage, namely subdivision or site plan review, detailed engineering data will be required." Id. at 452. As the trial court found, the Board's general findings concerning the GDP were more than enough to address the general findings required at this stage of the application process. Ammons specifically claims that the AGDP's inclusion of forty-one acres without a plan was without authority. We cannot agree. Once a GDP has been approved, the developer may amend the plan, but must apply to the planning board and receive its approval to do so. N.J.S.A. 40:55D-45.6(a). We reject Ammons' contention, which is without any statutory support, that at the GDP stage of the process, an applicant is required to submit a specific plan for the entire site. Such an obligation is inconsistent with the 15

16 structure and purpose of the statute, which requires boards to consider applications "in a general manner." See Citizen's United, supra, 395 N.J. Super. at 451. Ammons further contends that the MLUL does not authorize a Board to change the phasing dates on an approved GDP. A planning board has discretion to determine how long its approval of a GDP will have legal effect. N.J.S.A. 40:55D-45.1(b). However, this discretion is not unfettered, as there is an absolute limit of twenty "years from the date upon which the developer receives final approval of the first section of the planned development...." N.J.S.A. 40:55D-45.1(b). The MLUL defines "final approval" as the official action of the planning board taken on a preliminarily approved major subdivision or site plan, after all conditions, engineering plans and other requirements have been completed or fulfilled and the required improvements have been installed or guarantees properly posted for their completion, or approval conditioned upon the posting of such guarantees. [N.J.S.A. 40:55D-4.] Contrary to Ammons' argument, the language is clear concerning when the twenty years begins to run. A court's function is not "to rewrite a plainly-written enactment of the Legislature or presume that the Legislature intended something other than that expressed by way of the plain language." Borough of Glassboro v. 16

17 Fraternal Order of Police, Lodge No. 108, 197 N.J. 1, 11 (2008) (internal quotation marks and citations omitted). At the time the Board restarted the time allotments for the GDP phases, the statutory clock had not yet begun to run as none of the phases had reached a point of "final approval[.]" N.J.S.A. 40:55D-45.1(b). Moreover, a developer may seek to modify the proposed timing schedule by requesting permission from the planning board. N.J.S.A. 40:55D We conclude that the Board granted an extension of the planning schedule in accordance with N.J.S.A. 40:55D-45.4 and that extension had no effect on the statutory twenty-year period under N.J.S.A. 40: (b). We have considered Ammons additional arguments and find them to be without sufficient merit for further discussion. R. 2:11-3(e)(1)(E). Affirmed. 17