LEIGH REALTY COMPANY v. JACKSON TOWNSHIP PLANNING BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1643-05T51643-05T5

LEIGH REALTY COMPANY,

Plaintiff-Respondent,

v.

JACKSON TOWNSHIP PLANNING BOARD,

Defendant-Appellant.

________________________________

 

Submitted May 31, 2006 - Decided June 19, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County,

L-3589-04.

King, Kitrick & Jackson attorneys for appellant (Mark G. Kitrick, on the brief).

Levin, Shea & Pfeffer attorneys for respondent (Denis P. Kelly, on the brief).

PER CURIAM

The Jackson Township Planning Board appeals from a trial court order reversing the Board's resolution denying Leigh Realty Company's application for final major site plan approval. We affirm.

Leigh proposed to build 1,641 homes, including affordable housing, on a large tract of land in the Township. The development was to take place in twelve phases. Leigh received preliminary site plan approval for the housing development in 1989, based on a stormwater management study submitted as part of its application. The 1989 resolution granting preliminary approval recited the Board's extensive consideration of the drainage issues affecting the property:

The Jackson Township Planning Board at its previous meetings questioned the applicant at great length as to the type of drainage system proposed for this site. It is recognized by the Board that the great portion of this site is wet. . . .

As a consequence of the meetings with the Board, the applicant reduced its plan and now seeks approval for only 1,641 dwelling units. The applicant has proposed a drainage system which, in the opinion of its engineers, is adequate to maintain the drainage from this site. . . .

The Board's engineer also testified that the wet ponds which had been designed for this site will not create any adverse drainage impact upon the site and more importantly that the drainage plan will not adversely impact upon the [sensitive] environmental areas located on this site.

The 1989 approval granted Leigh "a statutory protection of ten years, pursuant to N.J.S.A. 40:55[D]-49d for the proposed project." Hence, its protection was effective until 1999. In 1996, Leigh applied for and obtained a five-year extension of the preliminary approval. That application, which the Board granted in 1997, gave Leigh an extension from 1999 through March 14, 2004. The Board did not condition its 1997 approval on Leigh's performing any updated or additional stormwater management studies.

In 2003, prior to the March 14, 2004 deadline, Leigh submitted what the Township engineer deemed to be a complete application for final site plan approval for phase one of the development, consisting of the first 130 homes. Its site was not subject to newly adopted DEP Stormwater Management regulations, because those regulations exempted "major development" that already had preliminary site plan approval prior to February 2, 2004, the date the rules were adopted. N.J.A.C. 7:8-1.6(b). However, the Planning Board insisted that the applicant submit a new stormwater management plan, as well as a new traffic study and an environmental impact statement. The applicant eventually agreed to provide the traffic and environmental studies but refused to submit a new stormwater management plan. The Board rejected the application based on the applicant's refusal to submit a new plan.

At the motion argument, Leigh's counsel contended that the Board's action was contrary to the Township's obligation to facilitate rather than hinder construction of affordable housing. He also represented to the court that his client had spent a "significant amount of money getting infrastructure to this site, [in] reliance on the 1999 extension," although he agreed that Leigh had not yet constructed a sewer system on the site itself. He also conceded that if, after phase one was constructed, there were problems with drainage, the Board could require "some design adjustments" in the stormwater management plan for the succeeding phases, based on actual experience with the existing plan, although he contended the Board could not require a whole new plan.

Judge Serpentelli did not address the issue as to whether the 1997 approval (granting an extension from 1999 to 2004) protected the applicant for all phases of the development. Rather, he tailored his opinion narrowly to the facts before him:

Now, in this case maybe the [developers] waited too long . . . as it relates to other phases; I don't know. Likely, some other judge will decide that . . . .

[A]t some future date the defendant can argue that the information it seeks must be provided as to subsequent phases of this development since the second extension has now expired. The record suggests that plaintiff's counsel believes Leigh remains protected. The Court need not address that issue now.

Instead, the Court concludes as to phase one only, that the planning board's decision to deny the application for final approval because of the refusal to submit the storm water management plan must be reversed. As a result, the Court need not address the other grounds for reversal asserted by the plaintiff.

Accordingly, Judge Serpentelli reversed the Board's decision, concluding that with respect to the application for final site plan approval for phase one of the development, N.J.S.A. 40:55D-49(a) did not authorize the Board to ask for additional information of the type that could and should have been obtained at the time of preliminary approval. He concluded that drainage issues should be resolved during the preliminary site plan approval process and hence those issues could and should have been addressed at the time of the 1997 approval. In an order issued on November 10, 2005, he ordered the Board to hear Leigh's application and to review the application for consistency with the prior preliminary site plan approval, without requiring revised stormwater, traffic or environmental impact plans.

On this appeal, the Board raises the following issues:

POINT I: DECISIONS OF MUNICIPAL PLANNING BOARDS MUST BE PRESUMED CORRECT BY THE COURT BECAUSE OF THE BOARD'S INTIMATE KNOWLEDGE OF LOCAL CONDITIONS, AND MAY ONLY BE OVERTURNED BY A FINDING THAT THE DECISION WAS ARBITRARY, UNREASONABLE, OR CAPRICIOUS.

POINT II: THE BOARD WAS WELL WITHIN ITS RIGHTS, UNDER THE EXEMPTION IN N.J.S.A. 40:55D-49, WHICH ALLOWS THE MUNICIPALITY TO MODIFY SUCH GENERAL TERMS AND CONDITIONS OF PRELIMINARY APPROVAL AS THEY RELATE TO PUBLIC HEALTH AND SAFETY, TO DEMAND A STORMWATER MANAGEMENT REPORT FROM RESPONDENT.

POINT III: WHEN THE APPLICANT FAILS OR REFUSES TO PROVIDE THE INFORMATION PERTINENT TO THE PLAN, THE BOARD MAY DENY THE PLAN ON THAT BASIS.

POINT IV: ALLOWING THE BOARD TO DEMAND AN UPDATED STORMWATER MANAGEMENT REPORT IN THE PRESENT CASE, UNDER THE HEALTH AND SAFETY EXCEPTION IN N.J.S.A. 40:55[D]-49, WOULD NOT UNDERMINE THE RULE AND THE PROTECTION OF DEVELOPERS' INTERESTS WOULD NOT BE COMPROMISED.

Having reviewed the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We could not improve upon Judge Serpentelli's cogent oral opinion, which precisely and thoroughly addressed the issue before him and reached the correct result. We therefore affirm for the reasons stated in his opinion, placed on the record on September 29, 2005.

Affirmed.

 

We infer from counsel's representations, which his adversary did not dispute, that the Township designated this site for affordable housing as part of its fair share affordable housing plan under the Fair Housing Act, N.J.S.A. 52:27D-301.

Judge Serpentelli also noted that "the record does not reflect precisely why the planning board wanted updated information concerning storm water management." We agree. Other than broad generalities concerning the extent of recent development in the Township, the record is barren of specific facts to justify this additional requirement.

(continued)

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A-1643-05T5

June 19, 2006