FULTON'S LANDING, INC. v. THE PLANNING BOARD BOROUGH OF SAYREVILLE, in the County of Middlesex, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1990-05T31990-05T3

FULTON'S LANDING, INC.,

Plaintiff-Appellant,

v.

THE PLANNING BOARD OF THE

BOROUGH OF SAYREVILLE, in the

County of Middlesex, and

THERESA A. FARBANIEC,

SAYREVILLE BOROUGH CLERK,

Defendants-Respondents.

_________________________________________________

 

Argued September 19, 2006 - Decided October 12, 2006

Before Judges Weissbard and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, L-3570-05.

Thomas F. Carroll, III, argued the cause

for appellant (Hill Wallack, attorneys;

Mr. Carroll and Henry T. Chou on the brief).

Marc D'Angiolillo argued the cause for

respondent Planning Board of the

Borough of Sayreville (Riker Danzig Scherer

Hyland & Perretti, attorneys; Gerald A. Liloia of counsel, Mr. D'Angiolillo

and Dara Aquila Govan on the brief).

Therese H. Cubba argued the cause for respondent Theresa A. Farbaniec, Sayreville Borough Clerk (Weiner Lesniak, attorneys; Brian M. Hak, of counsel, Bernard Mercado and Ms. Cubba on the brief).

PER CURIAM

This appeal by plaintiff Fulton's Landing Inc., a developer of residential property, requires us to consider whether the defendant Sayreville Planning Board validly conditioned its consideration of an application by Fulton for preliminary subdivision approval upon its acquisition of off-site easements to permit road connections that would accord with the traffic circulation plan set forth in Sayreville's Master Plan. Issues raised in this appeal are governed by New Jersey's Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, which provides in N.J.S.A. 40:55D-10.3:

An application for development shall be complete for purposes of commencing the applicable time period for action by a municipal agency, when so certified by the municipal agency or its authorized committee or designee. In the event that the agency, committee or designee does not certify the application to be complete within 45 days of the date of its submission, the application shall be deemed complete upon the expiration of the 45-day period for purposes of commencing the applicable time period, unless: a. the application lacks information indicated on a checklist adopted by ordinance and provided to the applicant; and b. the municipal agency or its authorized committee or designee has notified the applicant, in writing, of the deficiencies in the application within 45 days of submission of the application.

The principal issue on appeal is whether Fulton's application for preliminary subdivision approval, declared "administratively complete" by Sayreville's borough engineer in correspondence dated August 13, 2004, was legally complete when submitted to the Board later in August 2004, or whether, as the Board contends, it lacked a necessary checklist item consisting of easements from the adjoining property owner, E.I. duPont de Nemours and Company, to permit the road connections that Sayreville envisioned. DuPont has refused to grant the easements. Because the easements were not obtained, the Board declined to schedule a hearing on Fulton's application.

Faced with municipal inaction, in a letter to the Board dated March 4, 2005, counsel for Fulton, relying on default approval rights conferred by N.J.S.A. 40:55D-48c, stated that "Fulton's Landing considers the application deemed approved as the result of the Board's failure to decide the application within the statutory 95 day review period." Following receipt by Fulton of two additional letters from the Board stating that the application remained incomplete, on April 11, 2005, Fulton sent defendant Sayreville Borough Clerk Theresa Farbaniec an affidavit of service and publication of the default approval, and Fulton enclosed a certificate of default approval for Farbaniec's signature.

When no response was received from Farbaniec, Fulton instituted an action in lieu of prerogative writs against the Board and Farbaniec requesting that the court declare plaintiff's preliminary subdivision application approved as a matter of law. Following a hearing, in an order dated August 19, 2005, the court denied default approval of Fulton's application, and it remanded the matter back to the Board with instructions that the Board specify to Fulton within fifteen days any "checklist" items that rendered the application incomplete and that Fulton cure any deficiencies within ninety days. The court gave the Board an additional ninety days after the Board's determination that the application was complete to conduct a hearing, and a further ninety days to reach a decision to approve or reject the application.

Following a further declaration by the Board that Fulton's application was incomplete as the result of Fulton's failure to obtain off-site easements for roadway extensions into the project, Fulton moved for reconsideration by the court. A hearing was held, and on December 2, 2005, the court issued an opinion and order denying reconsideration and finding that the Board's decision that Fulton's application was incomplete because of its failure to obtain easements from duPont was not arbitrary or capricious, and that its requirement that such off-tract easements be obtained was lawful. Fulton has appealed from both orders.

I.

We declared in ECLLC v. Planning Bd. of Eastampton, 354 N.J. Super. 171 (App. Div. 2002) that the intent of the requirement of N.J.S.A. 40:55D-10.3 that the content of a development application be governed by a checklist adopted by municipal ordinance was "to avoid ad hoc board requirements of which an applicant had no fair, advance notice." Id. at 191. We observed that as the result of this statutory requirement, a municipal agency may not declare an application incomplete because the applicant has failed to supply information that is not required in the checklist. Ibid.

In this case, Sayreville's Zoning Ordinance Section 26-75.2 "Preliminary Major Subdivision and Site Plan Checklist" (December 15, 1999) provides the required reference. Section 26-75.2.25 of that ordinance, of relevance to this litigation, requires that an application contain:

A copy of any protective covenants or deed restrictions applying to the land . . . being subdivided or developed and a notation on the plat or plan of any easements required by the Board, such as, but not limited to, sight triangle easements. Said easements may also include utility lines, public improvements and ingress and egress for emergency vehicles.

The Board has taken the position that this checklist item authorizes it to require the acquisition by Fulton of off-site property rights from duPont. Fulton construes the item as applying only to the use of the site itself, and it argues that it cannot be compelled to obtain property rights from an unwilling seller, which it claims duPont to be, as a condition of the Board's consideration of its preliminary subdivision application.

We concur with Fulton's position, finding it to be supported by the plain language of the ordinance and consistent with the purpose of N.J.S.A. 40:55D-10.3 of providing certainty as to the requirements for a land use application. Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 392 (2001). Our acceptance of the Board's position that the checklist ordinance permitted it to impose a requirement that Fulton obtain off-site easements would be contrary to the MLUL's intent, since if such were the case, Fulton could not predict with any certainty what off-site requirements would be imposed upon it as a condition for consideration of its preliminary site development application - a circumstance manifestly contrary to the purpose of N.J.S.A. 40:55D-10.3. We reject an interpretation that achieves this result. Hubbard, supra, 168 N.J. at 392-93.

Moreover, as we held in Tennis Club Assoc. v. Planning Bd. of the Twp. of Teaneck, 262 N.J. Super. 422, 433 (App. Div. 1993), in the context of a municipally required purchase of property by a developer as a condition for final site approval, the MLUL does not obligate a developer to acquire rights to non-owned property for needed off-site improvements.

One good reason is that the private developer has no power to condemn such property. Furthermore, the developer is not required to go out and attempt to purchase such property, particularly when it is apparent that such efforts will likely fail or perhaps be counterproductive to the bona fide negotiations required of the condemnor.

[Ibid.]

We decline to interpret Sayreville's checklist ordinance in a manner that would permit such a requirement to be imposed as a condition for Board consideration of Fulton's application for preliminary subdivision approval. Whether the Board can condition its approval of the plan itself upon acquisition of the subject easements is not before us, and we decline to address the issue.

Because the record on appeal demonstrates no alleged deficiency in the content of Fulton's application other than the absence of required off-site easements, a requirement that we have rejected, we regard that application to be complete and remand it to the Board for consideration within the ninety-five-day period set forth in N.J.S.A. 40:55D-48c. We reverse the court's orders deeming the application incomplete and recognizing the requirement that Fulton obtain the off-site easements as a valid checklist item. We also reverse the timeframe established by the court for the Board's consideration of Fulton's application, finding it to exceed statutory limits.

II.

In determining the remedy that we have just stated, we have rejected Fulton's argument that it is entitled to default approval pursuant to N.J.S.A. 40:55D-48c, despite the determination by the borough engineer that Fulton's application was "administratively complete" and our conclusion that the Board's additional requirement that Fulton obtain off-site easements was invalid.

The statute upon which Fulton relies provides that if the board has not granted or denied a complete application for preliminary subdivision approval encompassing more than ten lots within ninety-five days, "the planning board shall be deemed to have granted preliminary approval to the subdivision." Despite the mandatory language of the statute, it has been held that automatic approval should not be granted except upon a showing of bad faith or inattention by a municipal board. Manalapan Holding Co. v. Planning Bd. of the Twp. of Hamilton, 92 N.J. 466, 482 (1983); ECLLC, supra, 354 N.J. Super. at 193; Star Enterprise v. Wilder, 268 N.J. Super. 371, 375-77 (App. Div. 1993); D'Anna v. Planning Bd. of Washington Twp., 256 N.J. Super. 78, 83 (App. Div.), certif. denied, 130 N.J. 18 (1992).

The record in this case does not reflect bad faith or inattention, but rather a misconception of the law by the Board that is insufficient to meet the bad faith standard. In a circumstance such as this, we have counseled restraint in the application of automatic approval statutes such as N.J.S.A. 40:55D-48c. Fallone Props. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 570-71 (App. Div. 2004). As in Fallone, where we held that a different legal dispute precluded the exercise of a right of automatic approval, a legitimate dispute existed throughout the course of dealings between Fulton and the Board as to whether Fulton legally could be required to obtain off-site easements for road connectors. And as in Fallone, "there is no indication that the Board's position was anything other than an understandable misconception of the law, demonstrating neither 'bad faith [n]or obstructionism by the [Board]'" Id. at 571 (quoting Manalapan, supra, 92 N.J. at 457). As we have observed, if we were to grant default approval in this circumstance, we would "say that a Board that errs in good faith, in determining that an application is incomplete, risks automatic approval of an arguably incomplete application. That was not the intention of the Legislature in enacting the default approval statutes." Eastampton, supra, 354 N.J. Super. at 196.

The trial court's order denying default approval is thus affirmed. Additionally, we exercise our original jurisdiction pursuant to R. 2:10-5 to dismiss Fulton's action against Borough Clerk Farbaniec as mooted by our decision on the default approval issue.

 
The application of Fulton's Landing, Inc. for preliminary subdivision approval is deemed complete, and the application is remanded to the Planning Board of the Borough of Sayreville for its consideration within the time limits established by the MLUL. Trial court orders to the contrary are reversed. The action against Theresa A. Farbaniec is dismissed as moot.

The statute provides:

Upon the submission of a completed application for a subdivision of more than 10 lots, the planning board shall grant or deny preliminary approval within 95 days of the date of such submission or within such further time as may be consented to by the developer. Otherwise, the planning board shall be deemed to have granted preliminary approval to the subdivision.

Claims of other deficiencies have been abandoned.

The word "and," recognized as superfluous, appears at this point.

(continued)

(continued)

7

A-1990-05T3

 

October 12, 2006