MICHAEL J. ROGERS v. HOLLAND TOWNSHIP PLANNING BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1607-10T3

MICHAEL J. ROGERS and

JAN ROGERS,

Plaintiffs-Appellants,

v.

HOLLAND TOWNSHIP PLANNING

BOARD and ALLEN BLUMBERG,

Defendants-Respondents.

____________________________________________________

October 31, 2011

Argued September 13, 2011 - Decided

Before Judges Messano, Yannotti and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-0540-09.

Richard P. Schubach argued the cause for appellants.

Donald W. Morrow argued the cause for respondent Holland Township Planning Board (Morrow & Morrow, attorneys; Mr. Morrow, of counsel and on the joint brief).

Darren J. Leotti argued the cause for respondent Allen Blumberg (Mauro, Savo, Camerino, Grant & Schalk, P.A., attorneys; Mr. Leotti, of counsel and on the joint brief).

PER CURIAM

Plaintiffs Michael J. and Jan Rogers appeal from the November 12, 2010 order of the Law Division affirming the decision of defendant Township of Holland Planning Board (the Board), and dismissing plaintiffs' complaint against the Board and defendant Allen Blumberg with prejudice. The facts are essentially undisputed. We recite the convoluted procedural history leading to the filing of plaintiffs' complaint in lieu of prerogative writs.

I.

Plaintiffs own property that they purchased from Blumberg on September 24, 2004; their property is contiguous to 110 acres that Blumberg also owns (the property). In July 2004, the Board granted Blumberg subdivision approval to divide the property into sixteen building lots.

On September 1, 2004, other contiguous property owners, Jeffrey and Ellen Broadhurst, filed a complaint in lieu of prerogative writs challenging the Board's approval (the Broadhurst litigation). The record is silent as to whether or not plaintiffs were aware of that litigation. The trial judge, Peter A. Buchsbaum, granted the Board and Blumberg summary judgment, finding the complaint was untimely. The Broadhursts appealed and we remanded the matter to Judge Buchsbaum to consider the merits of the complaint. Broadhurst v. Twp. of Holland Planning Bd., No. A-3892-04 (App. Div. Mar. 23, 2006).

On April 23, 2007, Judge Buchsbaum affirmed the Board's grant of Blumberg's subdivision application. The Broadhursts again appealed and we affirmed the judge's decision in an unreported opinion. Broadhurst v. Twp. of Holland Planning Bd., No. A-5098-06 (App. Div. Aug. 15, 2008) (Broadhurst II).

On August 10, 2009, the Board granted Blumberg a three-year extension of the subdivision approval. Plaintiffs filed their complaint in lieu of prerogative writs on September 17, 2009. Plaintiffs contended that Blumberg's failure to file the subdivision plat in accordance with the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163 (the MLUL), rendered the Board's original approval null and void. Plaintiffs also alleged that the Board's decision extending its prior approval was arbitrary, capricious and unreasonable because Blumberg did not satisfy the provisions of N.J.S.A. 40:55D-21.

On February 22, 2010, plaintiffs moved for summary judgment. Defendants filed opposition. On March 26, citing our opinion in Willoughby v. Planning Bd. of Deptford, 306 N.J. Super. 266 (App. Div. 1997), the judge notified all counsel that he would not consider the motion and the matter would "be scheduled for a hearing on the record below in the normal course."

On April 30, the parties appeared before Judge Buchsbaum. The judge noted that the Broadhurst litigation, and its effect upon Blumberg's approval, was the "major issue" in the case. Yet, given the "relatively brief transcript of" the proceedings before the Board on August 10, 2009, the judge observed that the "only evidence in the record . . . is that there was litigation." Over plaintiffs' objection, Judge Buchsbaum concluded that "the solution" was to remand the matter to the Board "to supplement the record on . . . the circumstances of the tolling with testimony." He entered an order requiring "remand proceedings, to include sworn testimony, [to] be completed by June 15, 2010."

The Board conducted the remand hearing on the record on June 14. Doug Henshaw, the attorney who represented Blumberg and secured the subdivision approval, was the sole witness. Henshaw outlined the original proceedings, the initiation of the Broadhurst litigation, and the basis for the Board's attorney's decision to forestall the signing of the subdivision plat while the litigation was pending. Henshaw agreed with that decision, noting that the Broadhurst litigation "went to the heart of the approval," and, while it was pending, perfecting the subdivision and selling the lots to prospective purchasers would have been "inappropriate."

Nonetheless, while the Broadhurst litigation was pending, Henshaw submitted "proposed form of easements, descriptions . . . [and] bonding information," -- "all the standard work . . . to bring [one] into compliance" with the conditions of the approval -- to the Board's attorney and other municipal officials for review. During cross-examination by plaintiffs' counsel, Henshaw admitted that Blumberg did not post any performance bonds while the Broadhurst litigation was pending.

Three Board members who were also members during the August 2009 hearing were questioned as to their knowledge of the Broadhurst litigation and advice of the Board's attorney. They all indicated their understanding that Blumberg's 2009 extension request was occasioned by the delay caused by the Broadhurst litigation.

Blumberg did not testify. The Board's attorney stipulated no testimony was taken at the August 2009 hearing that addressed whether Blumberg was ready, willing and able to proceed with the development at that time.

Judge Buchsbaum conducted another hearing on August 26, 2010, that resulted in an order requiring the Board to approve a resolution "memorializing its findings and conclusions reached at the June 14, 2010 hearing." The Board approved a memorializing resolution on September 13.

In particular, the Board's resolution noted that it had followed the advice of its attorney and refused to permit the subdivision plat to be signed while the Broadhurst litigation was pending. The resolution further cited counsel's opinion that the Broadhurst litigation "attacked the very heart of the approval, and involved issues pertaining to the public safety and welfare . . . ." The resolution noted Blumberg's "efforts in pursuing the Application through the Courts evidenced the fact that he was ready, willing and able to proceed with the subdivision."

On November 12, Judge Buchsbaum entered an order affirming the Board's decision to extend the subdivision approval and dismissing plaintiffs' complaint with prejudice. In a written opinion accompanying the order, the judge thoroughly explained the reasons for his decision. We discuss them below. Plaintiffs' appeal followed.

Before us, plaintiffs raise the following arguments:

Point 1

PLAINTIFFS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW BECAUSE DEFENDANT ALLEN BLUMBERG FAILED TO RECORD THE FINAL MAJOR SUBDIVISION PLAT AS REQUIRED BY THE [MLUL]

Point 2

BLUMBERG DID NOT ESTABLISH THE FACTS NECESSARY FOR THE BOARD TO GRANT AN EXTENSION OF FINAL APPROVAL UNDER N.J.S.A. 40:55D-21

Point 3

THE FACTS ADDUCED AT THE TWO REMAND HEARINGS BEFORE THE BOARD DO NOT CONSTITUTE GROUNDS TO EXCUSE THE FAILURE TO RECORD THE PLAT OR SUPPORT THE FINAL APPROVAL EXTENSION UNDER N.J.S.A. 40:55D-21

Point 4

THE TRIAL JUDGE ERRED IN REFUSING TO CONSIDER AND GRANT PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

We have considered these contentions in light of the record and applicable legal standards. We affirm.

II.

We apply "[t]he same standard of review" to the Board's decision as does the trial court. N.Y. SMSA, L.P. v. Bd. of Adjustment of Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004); Fallone Props. L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). A reviewing court can "set aside" a municipal board's decision "when it is 'arbitrary, capricious or unreasonable.'" Cell S. of N.J., Inc., v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)). We may "not substitute [our] judgment for that of [the] [B]oard even when [we are] doubtful about the wisdom of the action." Ibid. (quotation omitted). "[B]ecause of [its] 'peculiarknowledge of local conditions,'" the Board s factual findings are entitled to substantial deference and are presumed to be valid. Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990) (quoting Medici, supra, 107 N.J. at 23); see also Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965). The Board s conclusions of law, however, are subject to de novo review. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993).

A.

As Judge Buchsbaum aptly noted, plaintiffs' challenge before the Board involved two separate provisions of the MLUL. We consider the provision implicated by Point 1 of plaintiffs' argument.1

N.J.S.A. 40:55D-54 provides:

a. Final approval of a major subdivision shall expire 95 days from the date of signing of the plat . . . . The planning board may for good cause shown extend the period for recording for an additional period not to exceed 190 days from the date of signing of the plat. The planning board may extend the 95-day or 190-day period if the developer proves to the reasonable satisfaction of the planning board (1) that the developer was barred or prevented, directly or indirectly, from filing because of delays in obtaining legally required approvals from other governmental or quasi-governmental entities and (2) that the developer applied promptly for and diligently pursued the required approvals. The length of the extension shall be equal to the period of delay caused by the wait for the required approvals, as determined by the planning board. The developer may apply for an extension either before or after the original expiration date.

b. No subdivision plat shall be accepted for filing by the county recording officer until it has been approved by the planning board as indicated on the instrument by the signature of the chairman and secretary of the planning board . . . . The signatures of the chairman and secretary of the planning board shall not be affixed until the developer has posted the guarantees required pursuant to [N.J.S.A. 40:55D-53].

The grant of major subdivision approval secures for the developer a two-year period during which "all other rights conferred" by the approval are protected, and the approval is immunized from changes in the zoning map. N.J.S.A. 40:55D-52(a). The developer may seek three additional one-year extensions in the Board's discretion. Ibid.; see Friends of Peapack-Gladstone v. Borough of Peapack-Gladstone Land Use Bd., 407 N.J. Super. 404, 431 (App. Div. 2009) (holding the total period of statutory protection cannot exceed five years). However, the period of protection is predicated upon the developer's recording of the subdivision plat in accordance with N.J.S.A. 40:55D-54. N.J.S.A. 40:55D-52(a).

Addressing plaintiffs' argument that Blumberg's failure to file a signed plat and submit the required performance bond in a timely fashion rendered the approval null and void, Judge Buchsbaum concluded their reliance upon N.J.S.A. 40:55D-54(a) was misplaced. He reasoned that since there was "no signed plat," "the 95 days never began to run." He also noted that plaintiffs could not "point to any viable theory [by] which such plat execution could be imputed as of a date certain." Further referencing the Board's September 2010 resolution, Judge Buchsbaum observed "it was impractical" to undertake the filing of the plat while the Broadhurst litigation was pending. He concluded that this decision by the Board was entitled to deference, citing Kramer, supra.

In most situations, the developer will attempt to comply with the time limits provided by N.J.S.A. 40:55D-54(a) because it is in his self-interest. Only the posting of the required performance bonds, obtaining the necessary signatures and filing the approved plat will trigger the "protection period" provided by N.J.S.A. 40:55D-52(a). If a developer is thwarted through the inaction of the Board, he could presumably initiate litigation to force the filing of any otherwise conforming final plat. See, e.g., Kligman v. Lautman, 91 N.J. Super. 488 (App. Div. 1966) (considering applicant's challenge to the municipality's refusal to permit the filing of a map, but concluding the map failed to comply with applicable statutes). Thus, as one noted commentator has stated, having the plat remain unsigned beyond the 190 period provided by N.J.S.A. 40:55D-54(a) "is obviously not the intent of the statute." Cox, New Jersey Zoning & Land Use Administration, 16-12 at 443 (2011).

In some circumstances, we can imagine a decision reached by the developer, alone or in conjunction with municipal officials, to refrain from taking the necessary steps to perfect the filing of a subdivision plat might present fertile ground for collusion contrary to the public interest. But, in this case, there has been no allegation that Blumberg or the Board were motivated by any reason other than a well-founded belief that filing the approved plat and posting the necessary bonds while the Broadhurst litigation was pending would be unnecessary and imprudent.

Absent any clear provision in the MLUL to the contrary, we must conclude that the Board's decision, first made in 2004, and implicitly made again in 2009, was within its broad discretion and does not require reversal.

B.

The argument raised by plaintiffs in Point 2 implicates a different provision of the MLUL. Plaintiffs argue, as they did below, that the Board erred in granting Blumberg an extension because he failed to establish the necessary statutory prerequisites contained in N.J.S.A. 40:55D-21.

We agree with plaintiffs that the statutory tolling provisions of N.J.S.A. 40:55D-21 require two predicates. The developer must demonstrate he was "prevented, directly or indirectly, from proceeding with the development . . . by a legal action instituted by any . . . party to protect the public health and welfare." Ibid. He must also demonstrate that he was "otherwise ready, willing and able to proceed with said development." Ibid.

Judge Buchsbaum relied extensively on the Board's memorializing resolution that followed the remand. Citing our opinion in Peapack-Gladstone, supra, the judge noted that the Broadhurst litigation "sought to declare the approval illegal." As such, it "sufficiently implicated matters of public health and welfare to trigger a tolling." Judge Buchsbaum further noted that the developer "at all times defended the approval," and "was doing all it could as a practical matter to preserve its approval." He concluded the Board's decision that Blumberg was entitled to the statutory extension "was not arbitrary," and "was sufficiently supported by the record."

The Broadhursts challenged the Board's approval by alleging, among other things, that Blumberg's storm drainage system and open space access easement were inadequate. Broadhurst II, supra, slip op. at 1,3. We agree with Judge Buchsbaum that "[t]he nature of the legal arguments raised . . . sufficiently implicate[d] matters of 'public health and welfare' to trigger the tolling protections of N.J.S.A. 40:55D-21." Friends of Peapack-Gladstone, supra, 407 N.J. Super. at 429.

Plaintiffs further contend that Blumberg was not ready, willing and able to proceed with the development. In this regard, plaintiffs cite to a certification Michael filed when they moved for summary judgment. Michael claimed that Blumberg told him he was having financial difficulties and was selling the property, along with the subdivision approvals. Michael noted that a sign was posted advertising the availability of the property. Plaintiffs contend that these facts were unrebutted since Blumberg never testified at the remand hearing. Plaintiffs also argue that since Blumberg never posted the performance guarantees, he was not ready, willing and able to proceed with the development.

Absent an express provision of the MLUL defining the terms "ready, willing and able to proceed," we conclude determination of the issue is left to the sound discretion of the Board. We have in similar, although not identical circumstances, concluded that the good-faith pursuit of litigation brought by the applicant equitably tolls the protection periods accorded by N.J.S.A. 40:55D-52(a). See Darst v. Blairstown Twp. Zoning Bd. of Adjustment, 410 N.J. Super. 314, 339 (App. Div. 2010) (holding that "[t]he pendency of the litigation, which was based upon good-faith (albeit not successful) arguments by [the] plaintiffs and their counsel, equitably tolled the two-year period of protection") (citing Friends of Peapack-Gladstone, supra, 407 N.J. Super. at 431).

Here, the Board determined that Blumberg's vigorous defense of the Broadhurst litigation, coupled with his extension request made in 2009, "evidenced the fact that he was ready, willing and able to proceed with the subdivision." We cannot conclude that decision was a mistaken exercise of the Board's broad discretion.

C.

In Point 4, plaintiffs contend that Judge Buchsbaum erred by not considering their motion for summary judgment. The argument lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We add only the following.

"Because our court rules and established practice contemplate the previously described procedures for the early disposition of prerogative writ actions which challenge quasi-judicial decisions of local agencies, summary judgment is generally inappropriate in such cases." Willoughby, supra, 306 N.J. Super. at 274 (citations omitted). To be sure, there are exceptions, for example, when the issue presents a purely legal challenge, the consideration of which does not require review of the administrative record. See id. at 275 (noting summary judgment may be appropriate when dismissal is sought because the complaint is untimely).

Plaintiffs' contentions to the contrary, the judge's decision to consider the existing record below and to remand the matter to the Board when he determined the record was inadequate was entirely proper. See Cox, supra, 33-6.2 at 751 (noting the propriety of a remand because of the Board's failure to "make specific findings of fact and legal conclusions," the scope of which can be "for the purpose of an entirely new hearing, so as to make a record").

III.

We add some final comments. The final subdivision in this case was approved more than seven years ago. The Board's decision has spawned litigation resulting in two prior opinions by this court. As a result of those decisions, there appears to be no substantive impediment to Blumberg's proposed development. And, based solely upon the record before us, plaintiffs have never alleged any substantive challenge to the approval. In short, under those circumstances, we are hard-pressed to reverse and require the Board to consider anew Blumberg's application to subdivide his property. The litigation should come to an end. See e.g., Gandolfi v. Town of Hammonton, 367 N.J. Super. 527, 549 (App. Div. 2004) (exercising original jurisdiction to affirm the grant of a subdivision when the litigation had been ongoing for five years).

1 In Point 3, plaintiffs challenge the sufficiency of the evidence adduced before the Board at its August 2009 hearing on Blumberg's request for an extension, and the June 2010 remand hearing. We incorporate consideration of that issue into our discussion of the substantive legal arguments raised by plaintiffs.