PATRIOT HOMES, L.L.C., et al. v. FRANKLIN TOWNSHIP PLANNING BOARD, et al.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0699-06T10699-06T1

A-0700-06T1

PATRIOT HOMES, L.L.C.,

a New Jersey limited

liability company,

Plaintiff-Appellant,

v.

FRANKLIN TOWNSHIP PLANNING

BOARD; TOWNSHIP OF FRANKLIN;

and DIRECTOR OF FRANKLIN

COMMUNITY DEVELOPMENT DEPARTMENT,

Defendants-Respondents.

________________________________

PATRIOT HOMES, L.L.C.,

a New Jersey limited

liability company, and

KEVIN and REGINA ANDERSON,

husband and wife,

Plaintiffs-Appellants,

v.

FRANKLIN TOWNSHIP PLANNING BOARD;

TOWNSHIP OF FRANKLIN; and

DIRECTOR OF FRANKLIN TOWNSHIP

COMMUNITY DEVELOPMENT DEPARTMENT,

Defendants-Respondents.

__________________________________________________________

 

Submitted June 12, 2007 - Decided

Before Judges Stern and Coburn.

On appeal from the Superior Court of New Jersey,

Law Division, Gloucester County, L-1829-04 and

L-1499-05.

Angelini, Viniar & Freedman, attorneys for

appellants (Maria DeTitto, on the brief).

B. Michael Borelli, attorney for respondent

Franklin Township Planning Board.

Holston, MacDonald, Uzdavinis, Eastlack,

Ziegler & Lodge, attorneys for respondents

Franklin Township and Director of Franklin

Township Community Development Department

(William F. Ziegler and Samuel J. Myles,

on the brief).

PER CURIAM

In these actions in lieu of prerogative writs, which we have consolidated for purposes of this opinion, plaintiffs appeal, contending primarily that the trial court erred in failing to grant their requests for automatic approval of their subdivision plans pursuant to N.J.S.A. 40:55D-10.4. We disagree and affirm substantially for the reasons expressed by Judge Curio in her oral opinion of August 14, 2005, during which she concluded that plaintiffs had failed to prove that the municipal actions at issue were unreasonable, arbitrary, or capricious.

I

The first case, A-0699-06T1, concerns the development by plaintiff Patriot Homes, L.L.C. ("Patriot") of property on Coles Mill Road, located at Block 1602, Lot 16. The second case, A-0700-06T1, concerns property located at Block 301, Lot 15, purchased by plaintiff Patriot from plaintiffs Kevin and Regina Anderson (the "Andersons"). Both properties are located in Franklin Township.

In the first case, Patriot submitted a major subdivision and site plan to the Franklin Township Planning Board ("Planning Board" or "Board") on or about April 4, 2004. On April 8, 2004, Patricia Knobloch, Director of the Community Development Department (the "Director") advised Patriot that the application was incomplete because several items were missing. There were twenty-three items that needed to be addressed. These items included:

1. Pinelands Certificate of Filing or a NJDEP Freshwater Wetlands Application/LOI/Exemption;

2. Written statements of any submission waiver request or variance required and the reasons why the waiver(s) or variance(s) should be granted;

3. Key map showing: the entire subdivision, the proposed street pattern in the area to be subdivided, the distance to the nearest existing developed area, and the relationship of the subject tract to the surrounding area and road system;

4. The name of the proposed subdivision; municipal tax map sheets; & block and lot numbers; the date; reference meridian; graphic scale;

5. The location of the outline of any wooded areas, together with the limit of and proposed clearing. Vegetation information, may be required in any major subdivision application at the request of the reviewing board;

6. Profiles and cross sections of proposed streets within the subdivision and existing streets and highways abutting the subdivision;

7. Typical cross section of street shall clearly indicate the type and width of paving, location of curb, location of sidewalks and street tree locations;

8. Buffer or screen planting locations, any existing proposed sight triangles at intersections and the radius of the curb lines shall be indicated;

9. Where any regrading is proposed, finished grade contours should be shown in solid lines;

10. The total acreage of the drainage basin, upstream of the proposed subdivision of any water course, running through or adjacent to said subdivision;

11. The total acreage of the drainage basin to the nearest downstream drainage structure;

12. The location and extent of drainage or conservation easements and stream encroachment lines;

13/14. The plat shall show or be accompanied by plans and computations for a storm drainage system;

15. A landscape plan showing the location of all plant materials to be installed on site and all areas of existing vegetation to be preserved;

16. Any lands to be dedicated or reserved for public uses shall be clearly indicated;

17. Soil test boring and permeability test for septic system and stormwater suitability;

18. A copy of any protective covenants or deed restrictions proposed for application to the land being subdivided;

19. The location of standards, distance from intersections and illumination factors for all street lights shall be included;

20. An area acceptable to the reviewing board suitable for recreation purposes;

21. A site clearing plan showing limits of clearance, all areas of disturbance and detailing proposed vegetation protection measures;

22. A list of other agencies requiring their approval; and the status of the application to these agencies;

23. Any other information deemed necessary to the review of the subdivision.

Under item #23, the Director specifically asked Patriot to provide information using the New Jersey Department of Environmental Protection Nitrate Dilution Model.

On June 4, 2004, Patriot revised its plans and addressed the items that were deemed deficient. Its June 4, 2004, application included several documents that were not provided in its initial application. The application also included the Nitrate Dilution Test.

Nonetheless, on July 6, 2004, the Director advised Patriot that the application was still incomplete. There were still nine issues that were considered deficient. Specifically, the Director requested a copy of a waiver letter from the Gloucester County Planning Board regarding a proposed roadway.

On July 30, 2004, Patriot filed three revised plans and stated that "the associated plans and report [have] been revised to address the deficiencies . . . ." On August 20, 2004, the application was deemed incomplete because Patriot had failed to provide a copy of the waiver letter from the Gloucester County Planning Board.

On September 14, 2004, a new ordinance was passed by the Township of Franklin. On September 15, 2004, Patriot provided the Community Development Department with the copy of the Gloucester County Planning Board's official waiver. On that same day, the Director deemed Patriot's application complete and the application was placed on the Board's October 19, 2004, agenda. However, on September 16, 2004, the Director removed the completeness determination from Patriot's application and removed the application from the Planning Board agenda. The application was no longer deemed complete because it did not comply with requirements of the new ordinance adopted on September 14, 2004.

On November 1, 2004, Patriot filed a complaint in lieu of prerogative writs. On January 24, 2005, Patriot requested default approval, and on February 10, 2005, pursuant to N.J.S.A. 40:55D-50(b), Patriot filed a Notice of Default Approval with the Planning Board. A letter dated February 11, 2005, from B. Michael Borelli, the Planning Board Solicitor, denied the request. On August 15, 2005, Patriot submitted a preliminary and final subdivision application. The Director refused to accept the application.

In the second case, A-0700-06T1, Patriot purchased real property from the Andersons and on or about May 7, 2004, the Andersons and Patriot (hereinafter referred to as the "applicants") submitted a major subdivision and site plan application. The Director deemed the application incomplete on May 19, 2004. Several items were still needed including: a letter of interpretation; profiles and cross sections of proposed streets within the subdivision; typical cross sections which clearly indicate the type and width of paving, location of curbs, sidewalks and street tree locations; an indication of buffer or screen planting locations; a landscape plan showing the location of all plant materials; soil test boring and permeability test for septic system and stormwater suitability; a copy of any protective covenants; a site clearing plan; and "any other information deemed necessary to the review of the subdivision." Under the above-quoted catchall provision, the Director requested a Letter of Interpretation regarding the wetlands.

The application was resubmitted on May 26, 2004 and it was again deemed incomplete on May 27, 2004. On June 7, 2004, another revised application was submitted. However, on July 6, 2004, the Director found that the application was incomplete because it failed to provide the wetlands's Letter of Interpretation.

The applicants had sent the letter of interpretation to the Director via facsimile on Friday, July 2, 2004. But, the Director did not see the letter until after she had mailed out her completeness review on July 6, the Tuesday following the Fourth of July holiday.

By a letter dated August 12, 2004, the application was deemed complete and was placed on the Planning Board agenda for September 21, 2004. However, on September 16, 2004, due to the Township's new ordinance, which had been passed on September 14, 2004, the application no longer complied with the requirements of the Township and was removed from the Planning Board's agenda.

On September 21, 2004, the applicants' prior counsel appeared at the Planning Board hearing and sought a continuance and a waiver of time limits. The Township's Solicitor replied that because of the adoption of the ordinance, the application could no longer be heard without an amended application.

On January 10, 2005, the applicants filed a notice of default with the Planning Board. The request was denied on January 28, 2005. On September 2, 2005, applicants filed a complaint in lieu of prerogative writs. This matter was consolidated with the first case.

On August 14, 2005, plaintiffs argued to the trial judge that their applications were unnecessarily delayed because the Director imposed ad hoc requirements that were arbitrary and contrary to the Township's codes.

Judge Curio found that there was "no indication of arbitrary or unreasonable requirements being imposed by the Board." Moreover, she added that

in the absence of evidence, actual evidence of an intentional delay, the Court frankly would be hard pressed to impose the very harsh and very drastic result of imposing an automatic approval, particularly in view of the fact that the law clearly prefers that matters of this nature be submitted to public hearing and public input.

I do note, as well, that there was never an appeal of a denial of the request for automatic approval.

Again, part of the totality of the circumstances in attempting to ascertain whether the Plaintiff has made the prima facie showing of bad faith or purposeful delay is the timing of the other responses of the Board.

In other words, after each submission, the Board could have waited 45 days and in- - and did not and in many instances, responded very quickly. So again, as part of the totality of the circumstances in addressing this argument by Plaintiff that there was a purposeful delay, this rapid response, not waiting the full 45 days available to respond in most instances, suggests to me that there was no intentional delay. And indicates that the Plaintiff has failed to make the requisite showing in that regard.

For those reasons, the trial judge denied plaintiffs' application for automatic approval.

II

When considering an appeal from an action taken by a planning board, a reviewing court must determine whether the board's decision was "arbitrary, capricious or unreasonable." Fallone Props. L.L.C. v. Bethlehem Twp. Planning Board, 369 N.J. Super. 552, 560 (App. Div. 2004). A planning board's actions are presumed to be valid and planning boards are given "wide latitude in the exercise of the delegated discretion." Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990). Thus, a "reviewing court is not permitted to substitute its judgment for that of the board's." Fallone, supra, 369 N.J. Super. at 561.

Plaintiffs argue that the Director unnecessarily delayed their applications by compelling them to meet arbitrary, ad hoc requirements. Citing to N.J.S.A. 40:55D-10.3, plaintiffs argue that their applications should have been deemed complete and that they are entitled to automatic approval. These arguments are without merit.

N.J.S.A. 40:55D-10.3 states:

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 applicant may request that one or more of the submission requirements be waived, in which event the agency or its authorized committee shall grant or deny the request within 45 days. Nothing herein shall be construed as diminishing the applicant's obligation to prove in the application process that he is entitled to approval of the application. The municipal agency may subsequently require correction of any information found to be in error and submission of additional information not specified in the ordinance or any revisions in the accompanying documents, as are reasonably necessary to make an informed decision as to whether the requirements necessary for approval of the application for development have been met. The application shall not be deemed incomplete for lack of any such additional information or any revisions in the accompanying documents so required by the municipal agency.

 
[Emphasis added.]

Plaintiffs argue that the Director required them to submit documents that were not specifically listed on the Planning Board's checklist. Thus, they argue that under N.J.S.A. 40:55D-10.3, their application was unnecessarily delayed by these ad hoc requirements. They cite to Purwin v. Bernards Township Planning Board, 221 N.J. Super. 243 (Law Div. 1987) to support their argument.

In Purwin, plaintiff submitted an application for minor subdivision approval. 221 N.J. Super. at 245. The planning board considered his application incomplete because he had failed to comply with certain resolutions that dealt with major subdivision approvals. Id. at 246. Ultimately, plaintiff moved for default approval because the planning board was seeking requirements that were not on the checklist nor adopted by ordinance. Id. at 248. Thus, the trial judge was satisfied that plaintiff only had to submit the items on the checklist in order for his application to be complete. Id. at 249. Purwin, however, was expressly overruled by Eastampton Center L.L.C. v. Planning Board, 354 N.J. Super. 171 (App. Div. 2002). In Eastampton, the court stated that

[D]espite the seemingly mandatory language of N.J.S.A. 40:55D-10.3, there is ample precedent for a court to deny automatic approval to a development application, especially where the municipal board's failure to act within the statutory deadline is technical or inadvertent, and where there is no evidence of intentional delay or inattention to the application.

[135 N.J. Super. at 193].

"Our courts have been reluctant to uphold an automatic approval absent a clear showing of purposeful delay." Id. at 194.

Plaintiffs argue that Eastampton did not overrule Purwin in terms of the "completeness" issue. However, from our reading of Eastampton, it is clear that we rejected a mechanical and inflexible rule against municipalities. Rather, our courts are only willing to grant automatic approvals when the municipality intentionally delays the application.

There was nothing to show that the delay in this case was purposeful or that Township's requests were arbitrary, capricious, and unreasonable.

Patriot submitted an application in the first case that was found to be incomplete on April 8, 2004. There were twenty-three items that were considered "not complete." Twenty-two of these items were specifically listed on the checklist. Patriot, however, argues that the twenty-third item, which required the nitrate dilution model, was not on the list and therefore, was an arbitrary, ad hoc requirement that intentionally and deliberately delayed Patriot's application and under N.J.S.A. 40:55D-10.3. We disagree.

First, as defendants point out, the nitrate dilution model was a required under the catchall provision of the checklist, which requires "[a]ny other information deemed necessary to the review of the subdivision by the reviewing board, Township Engineer or Township Planner." It could be argued that this catchall provision is too broad and allows N.J.S.A. 40:55D-10.3 to be circumvented. However, in this case, we do not believe that the nitrate dilution testing was arbitrary, capricious, or unreasonable. A memo was sent to all major subdivision applicants, advising them of the additional groundwater test. The memo specifically states that the test was required "to protect public health and safety" against "long-term threats to the safety of the groundwater in [the] community." There is nothing here which suggests that the test was being used to delay applications.

Moreover, even after the nitrogen dilution model was submitted, Patriot's application was still deficient. On July 6, 2004, the application was still deemed incomplete because nine items were still outstanding. On July 30, 2004, Patriot responded and sent revised copies of the plans and addressed the deficiencies. According to Patriot, they did not submit any additional document but re-submitted information that was previously provided. However, it is clear from the cover letter dated July 30, 2004 that there were additional adjustments made by plaintiffs to address the deficiencies.

On August 20, 2004, the Director still found a deficiency. Specifically, the Director wanted Patriot to "provide copy of a letter from Gloucester County Planning Board" regarding offset and sight distance issues. Patriot argues that this letter was another ad hoc requirement that was not required by the checklist. The checklist only required "a list of other agencies requiring their approval and the status of the application of these agencies." According to Patriot, it did not require a copy of the agency's approval letter.

With respect to the agency's approval, Judge Curio found

I don't think it's the least bit unreasonable. And it's certainly not arbitrary, in my view, to require that a letter from an agency be provided to articulate the status of an application. Particularly in the view of the axiomatic proposition that the action of the Township is deemed or the Planning Board is deemed valid, presumed valid.

We agree. There is nothing to show that the Director's actions were arbitrary, unreasonable or capricious. In fact, as pointed out by defendants, the Director could have taken the full forty-five days to make a completeness determination. However, each time Patriot submitted an application, the Director responded promptly.

As Judge Curio stated:

Again, part of the totality of the circumstances in attempting to ascertain whether Plaintiff has made the prima facie showing of bad faith or purposeful delay is the timing of the other responses of the Board.

In other words, after each submission, the Board could have waited 45 days and in - - and did not and in many instances responded very quickly. So again, as part of the totality of the circumstances in addressing this argument by plaintiff that there was purposeful delay, this rapid response, not waiting the full 45 days available to respond in most instances, suggests to me that there was no intentional delay.

From the totality of the circumstances, there is nothing to show that the actions of the municipality were in bad faith or that the actions were arbitrary, unreasonable or capricious. See Eastampton, supra, 354 N.J. Super. at 193.

As for the appeal in A-700-06T1, as an initial matter, the claim to relief is barred by R. 4:69-6, which provides that the action in lieu of prerogative writs must be brought within 45 days from the date of the municipal action challenged. In this case, the application for default approval was denied on January 28, 2005. However, a prerogative writ was not brought until September 2005, some eight months after the initial action. Therefore, the claim for relief is time barred.

Even assuming that the second action is not procedurally barred, plaintiffs' claims have no merit. They argue that the Letter of Interpretation was an additional requirement that was not specifically listed in the checklist. For the same exact reasons stated above, we believe that their argument is without any merit. The Letter of Interpretation was required under the catchall provision. The request was reasonable and nothing offered by the plaintiffs has rebutted the presumption of validity. Moreover, according to a certification by the Director, even if the application was completed in May 2004 without the Letter of Interpretation, it probably would not have been heard before the ordinance adoption in September 2004. Thus, there is no merit to the second action.

Affirmed.

 

(continued)

(continued)

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A-0699-06T1

July 19, 2007