BREEDERS WALK, L.L.C. 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NOT FOR PUBLICATION WITHOUT THE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-4924-04T3

BREEDERS WALK, L.L.C.,

Plaintiff-Respondent,

v.

JACKSON TOWNSHIP PLANNING

BOARD,

Defendant-Appellant.

 

Submitted: May 1, 2006 - Decided July 13, 2006

Before Judges Fall and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket Number OCN-L-789-04-PW.

Charles P. Tivenan, attorney for appellant.

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

PER CURIAM

Defendant Jackson Township Planning Board appeals from an order entered on April 1, 2005, reversing the determination of the Board, at its March 25, 2003 meeting, that plaintiff Breeders Walk, L.L.C. had withdrawn its preliminary and final major subdivision approvals that had been granted by the Board in September 2000. The following factual and procedural history is relevant to our consideration of the arguments presented on appeal.

On or about January 21, 2000, Capstone Residential Communities, Inc. submitted an application to the Jackson Township Planning Board for preliminary and final major subdivision approval of property located partially in Jackson Township and partially in Manchester Township, on South Hope Chapel Road, into seventy residential building lots, the development to be known as Breeder's Walk. The subject property consisted of approximately 28.597 acres in Jackson Township known as Block 12, Lot 4, and approximately 4.3 acres in Manchester Township known as Block 66, Lot 1. Capstone also contemporaneously submitted the same application to the Manchester Township Planning Board.

On August 8, 2000, the Jackson Planning Board granted preliminary and final major subdivision to Breeder's Walk as a sixty-nine-lot subdivision. On September 12, 2000, the Board adopted Resolution #00-38, memorializing that approval. The subdivision approval was contingent upon Capstone receiving all necessary approvals for the development from the Manchester Township Planning Board and other agencies. Specifically, the approval was contingent upon Capstone "obtaining the appropriate approvals for the providing for water and sewer from the Manchester Utilities Authority."

On or about February 1, 2002, principally because the application had not yet received approval from the Manchester Utilities Authority for water and sewer service to the site, plaintiff filed an application with the Jackson Township Planning Board seeking an extension of the September 12, 2000 subdivision approval. The application for extension was deemed complete and was scheduled for a hearing on May 14, 2002, then carried to August 13, 2002, to November 26, 2002, and finally to March 25, 2003.

By letter sent to the attorney for the Jackson Planning Board by facsimile transmission dated March 20, 2003, Raymond F. Shea, Jr., counsel for plaintiff, stated he was unable to appear before the Board on March 25, asking that the extension application be carried to the Board's meeting on May 6, 2003 or May 13, 2003, due to his required appearance on March 25 before the Lakewood Township Planning Board on a court-remanded matter. Counsel for the Board informed Mr. Shea that the final decision concerning adjournment of the extension application rested with the Board.

On March 25, 2003, Samuel Z. Brown, an associate of plaintiff's counsel, appeared before the Board and again requested an adjournment. After some discussion, the Board's chairman asked Mr. Brown whether he would withdraw plaintiff's application and, if not, informed him "we will continue." When asked what the ramifications would be of a withdrawal, the Board's counsel informed him, "[i]f you withdraw, it's the same as if the Board were to deny the application." Mr. Brown then stated:

Then the applicant would withdraw the application based on the inability that I have to present or deal with any of the substantive issues. We will withdraw the application and reapply and hopefully schedule it such that it can be properly addressed by the folks who know more about it.

On or about September 23, 2003, plaintiff re-filed the application for an extension of the final major subdivision approval. By letter to plaintiff's counsel dated September 23, 2003, the Board's secretary refused to accept the extension application, stating in pertinent part:

During the Planning Board meeting of March 25, 2003, Mr. Glasner, Conflict Attorney for Jackson Township stated that Mr. Brown, attorney for the applicant, could either 'withdraw the application or the Planning Board could deny it without prejudice.' Mr. Brown chose to withdraw the application. A copy of the Jackson Township Planning Board Meeting minutes dated March 25, 2003 is enclosed for your reference.

At the direction of Mr. Glasner, this application for extension of time is invalid, as the application for Breeders Walk is withdrawn. . . .

* * * *

Should you wish to go forward with an application for this site, you must submit an entirely new application for Major Subdivision, including all items required per our checklist for completeness.

On March 6, 2004, plaintiff filed a verified complaint in lieu of prerogative writs against defendant in the Law Division, seeking an order requiring the Board to consider its application for extension of the major subdivision approval. The matter was presented to Judge Eugene D. Serpentelli on January 28, 2005. On March 18, 2005, the judge issued a letter opinion stating in pertinent part:

[I]t was agreed that the sole substantive issue involved in the matter was whether Samuel Brown, Esq., the attorney appearing on behalf of the applicant at the March 23, 2003 hearing, withdrew only the application for extension for subdivision approval or, as the Board contends, consented to the withdrawal of the subdivision approval.

The court's reading of the record and consideration of the circumstances reflected therein lead to the conclusion that it was the intention of the applicant's attorney only to withdraw the application for extension. . . .

* * * *

These colloquies [before the Board], and others in the transcript, vividly demonstrate that the Board, its professional staff and the applicant's counsel understood that they were there to hear the long delayed application for extension of the previously granted approvals. The focus was on either conducting the extension hearing that night or otherwise disposing of it then. Upon learning that the Board's records reflected a withdrawal of the subdivision approval, the attorney for the applicant moved promptly to correct the misunderstanding.

As also mentioned in the telephone conference, the court is aware of the issue raised by the Board's counsel concerning the alleged violation of Rule 4:69-6. In the first instance, plaintiff's counsel correctly points out that the issue was not raised in the pretrial order. Secondly, it appears that as soon as the plaintiff's counsel became aware that it was the Board's position that the plaintiff had consented to the withdrawal of the subdivision application as opposed to the withdrawal of the application for extension, the plaintiff moved promptly to correct the misunderstanding. Finally, even if the plaintiff was not in time, given the circumstances reflected in the record, it would be in the interest of justice to extend the 45-day provision pursuant to Rule 4:69-6(c).

Given the court's conclusion as set forth above, the question remains what is the remedy to correct what has occurred in this case. To the extent that the Board contends that it properly required the applicant to withdraw its subdivision approvals, the court reverses that decision. However, the court does not pass upon whether the Board could have denied the application for extension. Unfortunately, it was never provided with the necessary evidence to pass upon that issue both because of the applicant's inability to move forward and the Board's contention that the applicant had consented to withdraw their subdivision approval.

The record suggests that the original subdivision approval occurred on September 12, 2000. Absent an application for extension of that approval, it would have expired on September 12, 2002. However, the plaintiff applied for an extension around February 1, 2002[,] well before the expiration date. . . .

Thus, the court directs that the plaintiff shall make application to the Board for extensions of the subdivision approval, which application shall be for the period from September 2002 through September 2005. It shall be the plaintiff's burden to demonstrate that during the period commencing September 12, 2002 up to the time of the hearing that is to take place, it has continued to make a good faith effort to satisfy all the conditions of its subdivision approval. If the Board is satisfied with the plaintiff's proof, it should be granted extensions for the periods from September 12, 2002 to September 12, 2003, September 12, 2003 to September 12, 2004, and September 12, 2004 to September 12, 2005. If those extensions are granted and the applicant has not obtained all of its approvals prior to September 12, 2005, it will need to make an additional application for an extension. A hearing on extensions shall be heard within 45 days of this letter opinion.

An order memorializing the rulings in the letter opinion was issued on April 1, 2005.

On appeal, the Board presents the following arguments for our consideration:

POINT I

THE DECISION BY THE TRIAL COURT CONSTITUTES A REVERSIBLE ERROR.

POINT II

THE ACTIONS OF THE JACKSON TOWNSHIP PLANNING BOARD WERE NOT ARBITRARY, CAPRICIOUS, UNREASONABLE OR ULTRA VIRES.

After analyzing the record in the light of the written arguments advanced by the parties, we affirm substantially for the reasons articulated by Judge Serpentelli in his written opinion dated March 18, 2005. The action of the Board in requiring attorney Brown to proceed with the extension application, as opposed to reasonably carrying the application to allow attorney Shea to appear and properly present the extension application on the merits, constituted arbitrary and capricious action.

 
Affirmed.

At some point, the owner of the development became Breeders Walk, L.L.C.

Footnote continued on next page.

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A-4924-04T3

July 13, 2006