TOLL BROS., INC., et al. v. LAUREL CREEK, L.L.P.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1248-04T51247-04T5

A-1248-04T5

TOLL BROS., INC., and

LAUREL CREEK, L.L.P.,

Plaintiffs-Appellants,

v.

PLANNING BOARD OF THE

TOWNSHIP OF MOUNT LAUREL,

Defendant-Respondent.

______________________________

TOLL BROS., INC. and

LAUREL CREEK, L.L.P.,

Plaintiffs-Appellants,

v.

WHITESELL CONSTRUCTION COMPANY,

INC. and THE PLANNING BOARD OF

THE TOWNSHIP OF MOUNT LAUREL,

Defendants-Respondents.

________________________________

 

Argued April 4, 2006 - Decided September 18, 2006

Before Judges Lefelt, Hoens and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Burlington

County, L-1849-02 and L-2548-02.

Carl S. Bisgaier argued the cause for

appellants (Flaster/Greenberg, attorneys;

Mr. Bisgaier and Richard J. Hoff, Jr.,

on the brief).

Christopher Norman argued the cause for respondent Planning Board of the Township of Mount Laurel in A-1247-04T5 (Norman, Kingsbury and Norman, attorneys; Mr. Norman, on the brief).

Brian J. Mulligan argued the cause for

respondents Whitesell Construction Company, Inc. and the Planning Board of the Township of Mount Laurel in A-1248-04T5 (Sterns and Weinroth, attorneys; Mr. Mulligan and Mitchell A. Livingston, on the brief).

PER CURIAM

These appeals, which we have consolidated for purposes of decision, deal with two decisions of the Township of Mount Laurel Planning Board (the Board). The first decision reviewed in A-1247-04T5 denied that portion of a site plan application by plaintiff seeking to relocate a driveway servicing its country club; and approved, with a condition, that portion of the application seeking to replace approximately eighty-one temporary parking spaces for the clubhouse with the same number of paved, permanent spaces. The second decision reviewed in

A-1248-04T5 approved a separate, but related, application for site plan and subdivision approval submitted by Whitesell Construction Company, Inc. (Whitesell).

Plaintiff filed complaints in lieu of prerogative writs challenging both decisions. After appropriate discovery, defendants in both actions moved for summary judgment. The motion judge, in a single oral opinion, sustained the Board's actions on both applications. We affirm on A-1247-04T5 except with respect to the condition imposed on the approval, which we find legally unsupportable and which we consequently vacate. We affirm on A-1248-04T5.

In Docket No. A-1247-04T5, the Board granted preliminary and final site plan approval of plaintiff's application to replace approximately eighty-one temporary parking spaces at its country club with an equal number of permanent, paved parking spaces. The approval of that application was conditioned upon plaintiff's contribution of more than $300,000 to realign and improve the half of Centerton Road that abuts the country club property. At the same time, the Board denied plaintiff's application to relocate the driveway servicing the country club farther to the north. The judge rejected plaintiff's contentions that the denial of the application to relocate the driveway was arbitrary and that the Board had no authority to impose costs for improving the abutting roadway as a condition of approval for the replacement parking spaces. He granted summary judgment on all issues to defendant.

In Docket No. A-1248-04T5, the Board approved a site plan and subdivision for the construction, by defendant Whitesell, of a 400,000 square foot office complex. The approval was granted over plaintiff's objection (a) that the Board had failed to insure adequate access to plaintiff's contiguous parcel, upon which it intended to construct retail sales locations; and

(b) that Whitesell was required to obtain a use variance for the construction. Those contentions were rejected by the motion judge, who granted summary judgment in favor of defendants.

The background of this controversy has been described in some detail in Toll Bros., Inc. v. Board of Chosen Freeholders of County of Burlington, ___ N.J. Super. ___ (App. Div. 2006) (No. A-4814-03T5), published today. To that background, we add the following facts, which are necessary to understand the issues presented here.

Whitesell owns a forty-seven acre tract of land bounded by Centerton Road on the north, Interstate Route 295 on the south, Creek Road on the east, and Parkers Creek on the west. Plaintiff owns the Laurel Creek Country Club located directly across Centerton Road from Whitesell's property and an additional tract of almost seventeen acres that would be adjacent to the Whitesell property on the north once the existing Centerton Road has been relocated in accordance with the agreements described in our published opinion. The country club is accessed by a driveway from Centerton Road.

Whitesell's property is in the Major Commercial Planned Development District zone, which permits a number of commercial and office uses including retail and office space. Mt. Laurel, N.J. Zoning Ordinance, 154-30(B)(4)(r)(2001) provides that a developer, proposing a planned development of at least 100 acres, may seek a general development plan approval provided the developer submits:

[a] staging plan, where the planned development is intended to be developed over a number of years, indicating the areas to be developed in each stage and the priority of each stage. The eventual development of each stage should be specifically related to the land use plan, the traffic circulation plan, the stormwater management plan and the utility plan in order to ensure that the staging plan is a workable one, that a

reasonable balance of the different components are maintained in each stage and that the interests of the public and of the residents and employees, as applicable, who

occupy any section of the planned development prior to the completion of the planned development in its entirety will be protected.

On February 19, 2002, Whitesell applied for concept plan approval for four office buildings to be located on its forty-seven acre parcel. At a March 14, 2002, public hearing, Whitesell informed the Board that the buildings would be occupied by Lockheed-Martin, which wanted to create a campus-like setting with a secure entry, in the form of a guardhouse, from Centerton Road. Plaintiff did not oppose the application for concept approval and the Board unanimously approved it.

On March 28, 2002, the Board held a hearing on Whitesell's application for preliminary major subdivision and site plan approval for the first of its four proposed buildings. The Board's traffic engineer informed the Board that it was important to align the access into Whitesell's site from Centerton Road with the existing access into the Laurel Creek Country Club. That access was located in accordance with a 1987 concept plan proposed by plaintiff. The access point would work with the proposed relocation of the Centerton Road and would allow ingress and egress, for both the Country Club and the office complex, to be controlled by one traffic signal on Centerton Road.

Although plaintiff did not oppose the application, it did advise the Board that it had submitted a site plan application to replace temporary parking, serving its clubhouse, with a paved lot. The Board was told that plaintiff also sought permission to relocate the access road into the golf course so that it would be opposite a contemplated access to the seventeen-acre parcel on which plaintiff intended to construct retail space, but for which no development plan had been submitted. Nevertheless, plaintiff produced no testimony or other evidence that approving the Whitesell application and aligning the proposed access to Whitesell's property with the existing access to the country club would have any detrimental effect on later access to its seventeen acre parcel.

The Board also considered whether Whitesell was required to obtain a variance for its development. Having received the advice of its counsel, the Board concluded that, although the Major Commercial Planned Development District zone requires fifty contiguous acres, 154-24, no variance was necessary. The resolution approving the preliminary subdivision plan explained the basis for the determination:

Applicant received concept plan approval pursuant to Resolution R-2002-17 on March 28, 2002, for the subject parcel. Applicant now seeks subdivision approval for the subject parcel in order to implement the previously approved concept plan. Applicant indicated that the subject parcel was part of a larger parcel containing approximately 528 acres located in both Mount Laurel

Township and Moorestown Township. The portion of this lower parcel located in Mount Laurel was previously subdivided pursuant to Mount Laurel Planning Board

Resolution R-88-69 in 1988. Consequently the parcel which is the subject of this application originally contained more than 50 acres and satisfied the minimum lot

requirement for the Major Commercial

District (MCD). With the exception of proposed Lot 5, all the lots satisfy all bulk requirements for the MCD.

The Board voted unanimously to approve the preliminary subdivision plan and the preliminary site plan.

On May 23, 2002, the Board considered Whitesell's application for final subdivision and site plan approval. Plaintiff's representative testified that it had suggested to Whitesell that its entrance be moved northward to be opposite a proposed relocated country club entrance. This would allow the country club, the office complex, and the retail site access to Centerton Road at the same point and using the same traffic signal. Whitesell rejected that suggestion on the grounds that its tenant, Lockheed-Martin, wanted to maintain its security and campus-like setting and thus opposed access to a retail site through its office complex. The Board approved the plan proposed by Whitesell and included the following language in its decision:

Toll's attorney suggested that Toll and this applicant were directed to agree upon a relocation and subsequent realignment of the country club access and this applicant's access, and Toll's attorney proposed a sketch (Exhibit T-1). The Board disagreed that there was any such requirement, and the Board's Attorney confirmed this and stated that the Resolution for Preliminary Major Subdivision Approval did not contain the

suggested requirement. The applicant testified that it did not agree to Toll's proposal.

The Board approved the final subdivision application because it was consistent with the preliminary approval and satisfied all of the terms and conditions of the land use ordinance.

On June 13, 2002, approximately three weeks after the Board had granted final approvals to Whitesell, it heard plaintiff's application for site plan approval to relocate the clubhouse driveway to the north and for approximately eighty-one permanent parking spaces to replace the existing parking spaces. Plaintiff sought to move the access to the country club so as to align it with a proposed access to the retail parcel once Centerton Road was realigned and relocated. That realignment had been delayed as the result of the dispute we have described in Toll Bros., Inc. v. Board of Chosen Freeholders of County of Burlington, supra. The relocation of the access was necessary, plaintiff argued, because Whitesell would not allow plaintiff to access its seventeen-acre site through Whitesell's office complex.

The Board's traffic expert opposed the application for several reasons, not the least of which was that the approval given to Whitesell (to which plaintiff had not objected) located the Whitesell access across from the existing country club entrance. The access to both the country club and the office complex was to be signalized at Whitesell's expense. The traffic expert, Alexander Litwornia, noted that retaining the current access to the country club would not deny access to the proposed retail center. Moreover, it was unlikely, Litwornia opined, that permission for two signals could be obtained if plaintiff's proposed realignment was approved. Accordingly, allowing relocation might leave access to the country club and the retail space uncontrolled. Indeed, as Whitesell noted, plaintiff had not submitted an application for development of the retail parcel and there was no assurance that it would be developed for retail space. Whitesell suggested that planning for a development of unknown parameters at some undefined future time was not now appropriate. The Board accepted the position advanced by its traffic expert and denied plaintiff's request to relocate the country club entrance.

The Board then approved, without any opposition, plaintiff's application respecting the parking spaces. However, as a condition of approval, the Board required plaintiff to contribute more than $300,000 to the eventual relocation and improvement of Centerton Road.

The judge heard cross-motions for summary judgment on the Board's action respecting both applications on September 15, 2004, and rendered an oral opinion on that date. He resolved all issues against plaintiff. With respect to the grant of both development applications, the judge recognized his scope of review was "tightly circumscribed" and concluded that the actions taken by the Planning Board were not arbitrary, capricious or unreasonable. He concluded further that "it was not necessary to require Whitesell to obtain a bulk variance. First of all, this use was a permitted use within the MCD zone. . . . and it was one section of an overall 540-acre assemblage that was being developed at a stage of overall development, and that it was not required that [Whitesell] make an application for a variance." He also concluded, as a matter of law, that the imposition of a requirement to contribute to Centerton Road was authorized as a condition for replacing overflow parking with paved parking. Accordingly, he entered two separate orders and these appeals followed.

In reviewing the grant of summary judgment, we apply the same standard to resolve the dispute as did the motion judge, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998), without affording any special deference to the judge's interpretation of the law. Balsamides v. Protameen Chem., Inc., 160 N.J. 352, 372 (1999); Manalapan Realty L.P. v. Twp. Committee of Manalapan, 140 N.J. 366, 378 (1995). That is, we review the record in the light most favorable to plaintiff and determine if the record, thus viewed, requires the entry of judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In the context of a review of the action of a Planning Board, we review the record to determine if "the board could reasonably have reached its decision." Davis Enters. v. Karpf, 105 N.J. 476, 485 (1987). The action may be reversed only if it is "arbitrary, capricious, or unreasonable." Bressman v. Gash, 131 N.J. 517, 529 (1993). The action of the Board is presumptively valid and the burden of demonstrating otherwise is upon the party seeking to invalidate the action. Antonelli v. Planning Board of Waldwick, 79 N.J. Super. 433, 440 (App. Div. 1963).

With these standards in mind, we are satisfied that the Board's actions in approving the Whitesell applications and in denying plaintiff's application to relocate its driveway were well within the Board's discretion. Plaintiff's claims that those actions were arbitrary and capricious because they effectively deprived plaintiff of access to its retail parcel do not merit discussion in a written opinion. See R. 2:11-3(e)(1)(E). We add only that access remained although it might not have been the access plaintiff sought. Moreover, the Board was not required to plan access for a development that might never occur or not occur as envisioned at the time the Board initially considered these applications.

Plaintiff also raises three legal arguments. With respect to the approval of the Whitesell applications, it claims that the Board exceeded its authority in approving Whitesell's applications without first requiring Whitesell (a) to allow access through its property to plaintiff's retail property; and (b) to obtain a use variance. It also argues that the condition imposed upon the approval of its site plan was not authorized. We deal with each claim in turn.

The arguments raised with respect to the Whitesell approvals require an interpretation of the zoning ordinance. That interpretation presents a legal issue subject to de novo review. Bubis v. Kassin, 184 N.J. 612, 627 (2005). Nonetheless, the interpretation of an ordinance by a municipality or planning board is entitled to some deference. Ibid.; Fallone Properties, L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004).

Plaintiff bases its claim of right to access its seventeen acre complex through the Whitesell property on Section 154-30(B)(4)(r), quoted infra, page 5. Plaintiff believes that section imposes an "integration" requirement on the various access points to the development occurring along Centerton Road.

Although we recognize that section may not be applicable to a development of less than 100 contiguous acres, we assume, for purposes of this appeal, that Whitesell's application required the Board to relate Whitesell's development "to the land use plan, the traffic circulation plan" and the later development of the area.

Nevertheless, we agree with the judge that the Board was not arbitrary in concluding that the alignment of Whitesell's entrance drive and the existing country club's entrance drive satisfied the integration requirement. Aligning these driveways allowed the installation of a traffic signal to serve the only two developments either in existence or the subject of a concrete proposal. Plaintiff submitted no evidence that Whitesell's office complex and the location of the drives contemplated by Whitesell's applications would impair access to plaintiff's retail site. Accordingly, the Board had no basis to conclude that the Whitesell plan deprived plaintiff of reasonable access. In the absence of evidence in the record of conditions contrary to those found by the Board, plaintiff can hardly be heard to complain that the Board's action, on the record before it, failed properly to integrate the development of the area.

Similarly, we are satisfied that the Board's conclusion that no variance was necessary is appropriate. The major commercial zone permits a variety of uses, including those contemplated by Whitesell. Accordingly, the variance that might be required would not be a use, but a bulk, variance. We conclude, however, that the Board was quite correct in finding that no variance was required at all.

The ordinance defines a Major Commercial Planned Development District as a "continuous land area of not less than fifty acres designed to contain" the appropriate uses. Section 154-24. However, the evidence before the Board showed that, over the years, the Board has permitted developments of less than fifty acres if those developments were located on a site originally containing more than fifty acres.

In 1987, when Mount Laurel rezoned this area from industrial to major commercial, the portion of the development in Mount Laurel consisted of approximately eighty acres, which was contiguous to some 500 acres in Moorestown. In September 1988, the Board granted the application of plaintiff's predecessor for preliminary subdivision approval of a thirty-seven acre site. In 1989, approval was given to the same entity for the country club clubhouse, located on less than fifty acres, and for the retail parcel located on slightly less than seventeen acres.

The Board has interpreted the ordinance, for some fifteen years, as establishing a minimum lot size of fifty acres for the entire zone, not for each development within that zone. That is a reasonable interpretation of the requirement that a major commercial development district shall not be less than fifty contiguous acres.

Finally, we turn to the judge's affirmation of the Board's imposition of costs on plaintiff for improvements to Centerton Road as a condition of the approvals for its paved parking to replace the overflow parking originally approved.

Plaintiff argues that the improvements demanded for Centerton Road as a condition of subdivision approval are off-tract improvements and subject to the reasonable relationship test of N.J.S.A. 40:55D-42. We disagree. Originally, streets abutting a proposed development were treated as subject to the limitations contained in N.J.S.A. 40:55D-42 permitting "reasonable and necessary street improvements . . . necessitated or required by" virtue of the development. Cameron & Cameron, Inc. v. Planning Bd. of Warren Twp., 250 N.J. Super. 296, 302-04 (App. Div. 1991). In 1998, however, the legislature amended the statute to clarify that the pro rata share limitation applied only to "off-tract" improvements. L. 1998, C. 95, Section 8.

The term "off-tract" is now defined by N.J.S.A. 40:55D-5: "not located on the property which is the subject of a development application nor on the closest half of the abutting street or right-of-way." Centerton Road, by definition, is not "off-tract" and, consequently, not subject to the limitations of N.J.S.A. 40:55D-42.

It is, however "off-site" as defined by N.J.S.A. 40:55D-5: "located outside the lot lines of the lot in question but within the property, of which the lot is a part, which is the subject of a development application or the closest half of the street or right of way abutting the property of which the lot is a part." Thus, the closest part of Centerton Road to plaintiff's development would be "off-site" but not "off-tract."

Improvements of "off-site" locations may be authorized by N.J.S.A. 40:55D-38. William M. Cox and Donald M. Ross, New Jersey Zoning and Land Use Administration, 16-6.2 (Gann 2006). Nevertheless, the off-site improvements must relate to the scope of the development. "A street, immediately abutting a development tract, is generally so intimately related to the development that improvements necessitated by reason of the scope of the development are required particularly with respect to drainage and curbing." Id. at 403.

The ability to require off-site improvements, however, does not mean "that the Planning Board may unreasonably require a developer to widen and pave the one-half portion of the street immediately abutting the development in every case. . . . In such a case, the Planning Board is improperly attempting to be concerned with the development of the road per se without respect to the issue of the additional vehicular impact created by the subdivision." Ibid. See Amato v. Randall Twp. Planning Bd., 188 N.J. Super. 439, 453-54 (App. Div. 1982) (holding that is would be "inappropriate" to burden the applicant of a two-lot subdivision with the obligation to make extensive improvements to the adjoining road).

In short, the improvement of Centerton Road, whether authorized as an off-tract improvement by N.J.S.A. 40:55D-42 or as an off-tract improvement authorized by N.J.S.A. 40:55D-38, must be reasonably related to the proposed development. The widening of Centerton Road or its relocation is unrelated to the replacement of eighty-one existing parking spaces with eighty-one relocated and paved parking spaces. There is no evidence in the record that additional traffic will be generated by the relocated parking spaces and no additional impact on Centerton Road results. The application to replace parking spaces provides no reasonable predicate for an improvement to the abutting road. The authorization to require contribution to abutting road improvements is not unlimited; it is bounded by reasonableness.

The Board seeks to justify the imposition of the condition on two other bases: The requirement imposed on plaintiff equals the requirement previously imposed on Whitesell and Toll was contractually obligated, pursuant to the 1995 developer's agreement, to make Centerton Road improvements at its own expense so that the condition imposed by the Board merely insures that plaintiff will fulfill its contractual obligation. As to the former, we note the substantial difference between the Whitesell application and plaintiff's application. The Whitesell development will generate substantial traffic and have a dramatically different impact on the need for widening, improving, and relocating Centerton Road. As to the latter, we have affirmed, in Toll Bros., Inc. v. Board of Chosen Freeholders of County of Burlington, supra, plaintiff's contractual obligation to pay more than its pro rata share of the Centerton Road improvements. Nevertheless, that obligation is unrelated to the relocation of the parking spaces proposed by plaintiff. There is no legal basis to enforce that contractual obligation through a condition on site plan approval.

Consequently, we affirm the motion judge in

A-1247-04T5 except insofar as he sustained the requirement that plaintiff contribute toward the eventual improvement of Centerton Road as a condition of the Board's approval of plaintiff's site plan application, as to which we reverse.

We affirm the motion judge in A-1248-04T5.

Affirmed in part, reversed in part.

 

Laurel Creek, L.L.P. is a wholly owned subsidiary of Toll Bros. Inc. For purposes of convenience, we refer to plaintiffs in the singular.

The record does not reveal the date on which the relevant sections were enacted.

(continued)

(continued)

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A-1247-04T5

 

September 18, 2006