ALFIERI-OLD BRIDGE ASSOCIATES, LLC. v. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF OLD BRIDGE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1644-06T11644-06T1

ALFIERI-OLD BRIDGE

ASSOCIATES, LLC.,

Plaintiff-Respondent,

v.

BOARD OF ADJUSTMENT OF THE

TOWNSHIP OF OLD BRIDGE,

Defendant-Appellant.

___________________________________

 

Argued September 17, 2007 - Decided October 29, 2007

Before Judges Lintner, Graves and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-4014-06.

John P. Belardo argued the cause for appellant (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, attorneys; Mr. Belardo and Michael V. Cresitello, Jr., on the brief).

Frank J. Petrino argued the cause for respondent (Sterns & Weinroth, attorneys; Mr. Petrino, of counsel and on the brief; Vincent J. Paluzzi on the brief).

PER CURIAM

In this land use case, the Old Bridge Zoning Board of Adjustment ("the Board of Adjustment") contends that, in retrospect, it acted outside of its statutory authority when it approved a general development plan ("GDP") for a large tract of land in Old Bridge in 1985, and that the municipality's Planning Board instead has exclusive jurisdiction over that plan and any related land use issues. Specifically, the Board of Adjustment appeals an order of the Law Division dated October 30, 2006, which determined that the Board of Adjustment did have the lawful power in 1985 to approve the GDP, and that the Board of Adjustment should continue to exercise jurisdiction over any further applications relating to the plan or to the development of the property.

We affirm the Law Division's determination, but modify it to prospectively require that any subsequent site plan applications concerning the property be presented to the Planning Board rather than to the Board of Adjustment, on the condition that the Planning Board, in exercising its jurisdiction, does not nullify any prior approvals issued by the Board of Adjustment.

I.

The property at issue in this appeal is a 140-acre parcel in Old Bridge Township ("the Township") near the Metropark train station. In 1985, Edward J. Rondinelli, a developer, sought approval from the Board of Adjustment for a general development plan for the site. Rondinelli is the predecessor in title to the respondent in the present appeal, Alfieri-Old Bridge Associates, LLC. ("Alfieri"). The GDP application envisioned substantial construction on the property, including, at that time, 1.7 million square feet of office and research space, 250 to 350 hotel rooms, convention space, and 400 dwelling units. The dwellings would be a mix of townhouses, duplexes, four-unit residences and eight-unit residences.

Following two public hearings, the Board of Adjustment on September 5, 1985 approved the GDP, and also granted certain variances. The resolution implementing that decision stated, in pertinent part, as follows:

WHEREAS, Edward J. Rondinelli, hereinafter applicant, has made Application No. 40-85Z to the Zoning Board of Adjustment for approval of a General Development Plan for a Class I Planned Development, as well as variances from the density requirements of the Zoning Ordinance to allow 100% medium density residential including eightplexes, quadruplexes and townhouses, with waiver of staging requirements . . . .

WHEREAS, a public hearing was held on said application by the Board on August 15, 1985 and September 5, 1985; and

WHEREAS, the Board[,] after carefully considering the evidence presented to it by or on behalf of the applicant, by or on behalf of the adjoining property owners and the general public[,] has made the following findings of fact:

1. Applicant proposes a Class I Planned Development encompassing 139 acres with provision for 1.7 million square feet of office, research, and hotel convention space with 400 residential units of medium density.

2. The property is in a PD-1 zone.

3. The applicant has complied with the requirements for a Class I General Development Plan with the exception of densities and staging requirements.

. . . .

7. The testimony presented taken as a whole has indicated the following justification for the granting of a Variance for the subject premises as well as the Class I PD General Development Plan.

Special reasons exist which warrant the granting of the Variances sought in that the area is too difficult and expensive to develop under strict compliance with the requirements of the Ordinance due to topographical and other conditions including prior dumping of refuse and mining operations.

On November 12, 1987, the Board of Adjustment issued another resolution concerning the development site. That resolution was intended to accomplish two things. First, the resolution specifically provided that the previously-issued GDP would be vested for twenty years, calculated from the date of the original resolution on September 5, 1985. According to the November 1987 resolution, this vesting language was inserted to correct an "oversight" in the original resolution. Second, the Board corrected what it described as "typographical error[s]" in the original resolution concerning the square footage of hotel and office space on the premises. In particular, the November 12, 1987 curative resolution recited:

WHEREAS, [Alfieri's predecessor in title,] hereinafter applicant, has made App. No. 40-85Z to the Zoning Board of Adjustment for approval of a General Development Plan on premises . . .

WHEREAS, a Public Hearing was held on said application by the Board on August 15, 1985 and September 5, 1985; and

WHEREAS, the Board passed a Resolution on September 5, 1985 approving the G.D.P. which called for 20 year vesting from September 5, 1985; and

WHEREAS, the Resolution should have contained specific provision for 20 year vesting which was omitted by oversight;

WHEREAS, the Resolution also contained a typographical error as to the square feet of hotel and office space;

NOW, THEREFORE, BE IT RESOLVED, by the Zoning Board of Adjustment of the Township of Old Bridge, this 12th day of November, 1987, that the Resolution of September 5, 1985 is amended to include granting of 20 year vesting from September 5, 1985 and is further amended in paragraph 1, to permit 1.7 million square feet of office space plus 250 - 350 hotel rooms, plus convention space and other amenities.

In 1989 the Board of Adjustment granted the site owner approval to amend the GDP in various respects. The modifications included a relocation of certain townhouse units because of wetland requirements enforced by the State Department of Environmental Protection. The Board of Adjustment also approved the deletion of a "park 'n' ride" commuter rail station, and of a direct roadway connection to the Garden State Parkway, also because of wetlands mitigation concerns. In its April 6, 1989 resolution effecting these changes, the Board of Adjustment reaffirmed that the developer had "complied with all necessary jurisdictional requirements . . . ."

The actual development of the site lagged for many years. Among other things, the project became bogged down in litigation over whether it was subject to affordable housing requirements under the Mount Laurel doctrine. That litigation resulted in an appeal to this court, Rondinelli v. Twp. of Old Bridge, No. A-2823-90T1 (App. Div. August 6, 1992). In a per curiam opinion, we held that the project was exempt from Mount Laurel housing requirements because the developer had vested rights in the GDP, as approved in 1985, which had not contained any conditions requiring the construction of affordable housing units on the site. Id. at 5. As a predicate of our analysis, we observed that it was undisputed that "Old Bridge had the authority under the Municipal Land Use Law [N.J.S.A. 40:55D-1 to -163] to adopt an ordinance under which a developer could acquire vested rights as part of a general development approval." Id. at 5. We also recognized that the GDP had been duly approved by the Board of Adjustment on September 5, 1985, and that the Board of Adjustment had modified the original approval on November 12, 1987 to specify a twenty-year vesting period. Id. at 2.

Subsequently, in 1994, the Board of Adjustment granted additional variances for the site. The modifications included a reduction of the number of anticipated single-family homes from 200 to 155, and permission to build 1.69 million square feet of commercial/industrial buildings on the site, subject to market conditions. The October 20, 1994 resolution memorializing this action specifically stated that "[t]he Board [of Adjustment] determined on April 29, 1993 that it had jurisdiction to hear and decide this matter."

The present owner, respondent Alfieri, purchased the property in 1998. Thereafter, despite its long-standing exercise of jurisdiction over the GDP and its issuance of related approvals for the site, the Board of Adjustment changed course. In particular, the Board of Adjustment began taking the legal position that it never had the authority to approve the GDP in the first place, and that it would no longer review filed applications to modify or to extend the GDP. Consequently, when Alfieri presented more applications concerning the site, including three Preliminary Subdivision and Site Plan Approval requests between June 2003 and April 2005, the Board of Adjustment eventually balked. This prompted Alfieri to file an action in lieu of prerogative writs in May 2006, with the Law Division, seeking to compel the Board of Adjustment to act upon its pending applications. The Board of Adjustment moved to dismiss the complaint under R. 4:6-2(e), for failure to state a claim. Alfieri cross-moved for a remand to the Board of Adjustment.

Following oral argument, the Law Division judge denied the Board of Adjustment's motion to dismiss, and granted Alfieri's motion for a remand. The judge concluded that the Board of Adjustment did, in fact, have jurisdiction under the then-existing version of the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163 ("MLUL"), to approve the GDP in 1985, and that it continued to have such jurisdiction.

As part of his findings, the judge noted that certain amendments to the MLUL restricting a board of adjustment's authority over GDP applications did not become law until May 1987, almost two years after the Old Bridge Board of Adjustment had already approved the GDP for this site. The judge also noted that, as a separate ground for jurisdiction, a Land Development Ordinance ("LDO") in Old Bridge, enacted in 1983 and in force in 1985, had conferred authority on both the Board of Adjustment and the local Planning Board to entertain GDP applications. Consequently, the judge remanded the pending site plan applications to the Board of Adjustment for appropriate action.

The Board of Adjustment now appeals the Law Division judge's determination. In particular, it argued in its brief that (1) the judge erred in finding that the Board had jurisdiction to act upon the developer's applications; (2) the Legislature never delegated to boards of adjustment the power to hear applications involving either planned developments or general development plans; and (3) that "all actions taken by the Board of Adjustment" regarding the developer's applications in this case were "ultra vires in the primary sense and [thus] void." At oral argument before us, appellant's counsel clarified that the Board of Adjustment was not seeking a judicial declaration to nullify its past approvals of the GDP and related variances, but instead sought a ruling that any prospective applications concerning the site, including the pending site plan applications, should be presented to the Municipal Planning Board. We now consider those arguments.

II.

In 1975, the Legislature authorized municipalities in New Jersey to create zoning for planned development districts. N.J.S.A. 40:55D-65c, enacted by L. 1975, c. 291, 52; see also Eastampton Ctr., LLC v. Planning Bd. of Eastampton, 354 N.J. Super. 171, 176 (App. Div. 2002). The concept of a planned development includes, among other things, planned commercial developments, industrial developments, and residential developments, all to be developed by a single entity. See N.J.S.A. 40:55D-6 (definitional section). Larger parcels containing such planned developments, typically parcels of more than 100 acres, came to be described as general development plans ("GDPs").

In 1983 the Township of Old Bridge enacted its LDO. Section 7 of the LDO addresses the concepts of planned developments and general development plans. Section 7-1:1.1 of the LDO provides that an applicant for certain classes of planned development in the Township "may file a General Development Plan encompassing all of the applicant's land constituting the proposed Planned Development." Id. at 7-7:1.1(a). That provision instructs that "[t]he applicant shall first obtain approval of the General Development Plan as provided herein and shall thereafter, from time to time, proceed to obtain Preliminary and Final Plan Approval(s) of the various section(s) or subdivision(s) that collectively constitute the G.D.P. . . . ." Ibid. The LDO further instructs that the applicant present the proposed General Development Plan to the "Approving Board," which must either "grant approval of the [GDP] as submitted or with changes and[/]or conditions, or deny approval," within ninety-five days, unless the time for such action is extended by the applicant. Id. at 7-7:1.1(e).

The LDO flexibly defines the "Approving Board" that may exercise authority over the developer's GDP application. As set forth in Section 3-6 of the LDO, "[t]he term 'Approving Board' . . . means either the Planning Board or Zoning Board of Adjustment, whichever Board has jurisdiction over the development application." Id. at 3-6 (emphasis added).

As the trial judge recognized in this case, the Board of Adjustment had jurisdiction over the developer's application concerning the project site by virtue of a variance it granted for the property on April 17, 1985. Although the parties dispute the legal significance of the Board's action, the resolution of April 17, 1985 clearly reflects that the Board of Adjustment approved a variance on that date "to permit [a] 140

acre Planned Development in [the] SD-5 and R-7 zones[,] including residential, office, research and hotel uses on premises known as Block 2000.11 - 2000.18, Block 2000.21, Block 2000.22 [and] Block 2150."

The April 17, 1985 resolution made findings that the requested variance would not "adversely affect the value of adjacent and nearby properties," would not "alter the essential character of the neighborhood," would not be "detrimental to . . . health, safety and welfare," and would be "without substantial detriment to the public good and without substantial impairment of the intent and purpose of the Zone Plan and Zoning Ordinance." The resolution thus authorized "development of the subject property as a Planned Development, subject to the provisions of the Land Use Ordinance of the Township of Old Bridge as applicable to such developments." Anticipating that subsequent applications would be presented to flesh out the particulars of the development in greater detail, the resolution also noted that "[t]his [v]ariance shall not be construed as approving any specific aspect of the conceptual plan presented other than the development of the property as a Planned Development."

The MLUL generally confers upon boards of adjustment the power to decide applications for use and density variances. See N.J.S.A. 40:55D-70d. Although the April 17, 1985 resolution of the Board of Adjustment does not explicitly state that it is a "use" variance, the resolution does address the contemplated uses of the site, which was physically located within the SD-5 and R-7 zones, and notes that the applicant had agreed to be instead "subject to all requirements and procedures with regard to a PD [Planned Development] zone." A subsequent resolution of the Board of Adjustment, dated September 1, 2005, referred to the April 17, 1985 resolution as the grant of a "use variance." We agree with the trial judge that the April 17, 1985 resolution granted a use variance, and that such a variance was properly within the jurisdiction of the Board of Adjustment.

Pursuant to N.J.S.A. 40:55D-76b, which was in effect in 1985, a board of adjustment has ancillary jurisdiction "to grant, to the same extent and subject to the same restrictions as the planning board," subdivision or site plan approval, or conditional use approval, "whenever the proposed development requires approval by the board of adjustment of a variance pursuant to subsection d. of [N.J.S.A. 40:55D-70]." Ibid. See also Michelotti Realty Co. v. Zoning Bd. of Adjustment of Twp. of Saddle Brook, 191 N.J. Super. 568, 571-72 (App. Div. 1983). The variance granted by the Board of Adjustment for the subject premises on April 17, 1985 qualifies as such a use variance under subsection (d) of the statute. See N.J.S.A. 40:55D-70d(1) (regarding approval of "a use or principal structure in a district restricted against such use or principle structure"). Here, the developer sought and obtained approval to pursue a project as a planned development, under the standards pertinent to a "PD" zone in Old Bridge, for property situated in SD-5 and R-7 zones.

Accordingly, we concur with the trial judge that the Board of Adjustment obtained ancillary jurisdiction in 1985 to pass upon the site owner's application for a general development plan concerning that same property. Such ancillary jurisdiction stems from two, equally sufficient, sources. First, the Board of Adjustment was a duly-qualified "Approving Board" under Section 3-6 of the Township's LDO. Appellant does not argue to us that the LDO was invalid, or that the applicable provisions in Section 7 were not in force when Alfieri's predecessor-in- title presented its GDP application in September 1985. Second, the Board of Adjustment had ancillary power under the MLUL, N.J.S.A. 40:55D-76b, to entertain follow-up applications that ordinarily would have been heard by the Township's Planning Board.

After the GDP in this case was duly approved by the Board of Adjustment in September 1985, the Legislature amended the MLUL to insert a new provision that, among other things, confers exclusive jurisdiction upon planning boards to evaluate proposals for general development plans. That amendment, N.J.S.A. 40:55D-45.1, was adopted in May 1987. It provides, in relevant part:

b. The term of the effect of the general development plan approval shall be determined by the planning board using the guidelines set forth in subsection c. of this section, except that the term of the effect of the approval shall not exceed 20 years from the date upon which the developer receives final approval of the first section of the planned development pursuant to P.L. 1975, c. 291 ([N.J.S.A.] 40:55D-1 et seq.).

[N.J.S.A. 40:55D-45.1b (emphasis added).]

By this statute, the Legislature established that the approval of general development plans, which are generally large in scope, would be entrusted to municipal planning boards and not to boards of adjustment. We appreciate the wisdom of that jurisdictional assignment, given the breadth, complexity, and scope of projects within GDPs, and the customary expertise of planning boards in evaluating large-scale land use projects such as applications for major site plan approval.

The Board of Adjustment has argued that the adoption of N.J.S.A. 40:55D-45.1 in May 1987 nullified the GDP approval obtained in this case because that approval was not rendered by the Township Planning Board. However, the Legislature did not require N.J.S.A. 40:55D-45.1 to have retrospective effect. To the contrary, the historical notes accompanying the codified version of N.J.S.A. 40:55D-45.1 make clear that the new statute would be "effective May 28, 1987, but not applicable to any developer who received final approval of a site plan or subdivision for any section of a planned development prior to said date." See L. 1987, c. 129, 1, 3.

The question thus becomes whether Alfieri's predecessor in title obtained "final approval of a site plan or subdivision for any section of [its] planned development" prior to May 28, 1987. Ibid. The record discloses that it was not until November 12, 1987, when the property owner received what was denominated as the first "final approval" under the GDP. The question then arises as to the legal impact of the Legislature's intervening enactment of N.J.S.A. 40:55D-45.1 in May 1987 on the GDP in this matter.

We concur with the trial judge's core finding that the GDP was lawfully approved by the Board of Adjustment under then-existing law in September 1985, and that the subsequent enactment of N.J.S.A. 40:55D-45.1 did not vitiate that approval. In this vein, we reject the appellant's arguments that the September 1985 approval of the GDP was ultra vires and consequently void. As we have already explained, the Board of Adjustment had the legal authority under the Township's LDO and also under the then-existing provisions of the MLUL to grant the property owner a use variance in April 1985 and approval of the GDP, as it was conceptually presented, in September 1985.

The doctrine of ultra vires simply does not apply here, either in the so-called "primary" sense or "secondary" sense. That is so because appellant fails to demonstrate that its own actions in April 1985 and November 1985 regarding this project were either acts "'utterly beyond the jurisdiction of a municipal corporation'" or "'the irregular exercise of a basic power under [a] legislative grant.'" Middletown Policemen's Benev. Ass'n v. Twp. of Middletown, 162 N.J. 361, 368 (2000) (quoting Skulski v. Nolan, 68 N.J. 179, 198 (1975)). The actions of the Board of Adjustment concerning this project before the passage of N.J.S.A. 40:55D-45.1 were patently valid.

Our conclusion regarding the legitimacy of the September 1985 GDP is fortified by our 1992 decision in Rondinelli, which was logically predicated on the notion that Alfieri's predecessor-in-title had obtained a valid approval of the GDP and related variances from the Board of Adjustment in 1985. Had the Board's approval been invalid, the property's exemption from subsequently-enacted affordable housing requirements may well have been suspect.

All parties before us in Rondinelli accepted the jurisdictional validity of the GDP, and no one argued that the GDP was void because it had not been issued by the Planning Board. We deem it imprudent to revisit the project's history at this point, and to unravel what already has long been decided and accomplished. Similarly, we shall not disturb the additional variances granted by the Board of Adjustment for the site in 1989 and in 1994, nor have we been asked to by the appellant.

Having established that the 1985 GDP was lawfully granted, we now consider the impact of the subsequent adoption of N.J.S.A. 40D:55D-45.1 on (1) the Board of Adjustment's November 12, 1987 resolution specifying the property owner's vesting rights; and (2) with respect to jurisdiction over Alfieri's pending site plan applications that remain unheard in the municipality, and any such future applications.

With regard to vesting rights, we note that the language of the November 12, 1987 resolution expressly provided that the September 5, 1985 resolution authorizing the GDP was "amended to include granting of 20[-]year vesting from September 5, 1985." Consequently, the developer's rights were initially vested through September 5, 2005. Thereafter, the Board of Adjustment adopted resolutions further extending the GDP to December 5, 2005 and again to March 2, 2006, for the express purpose of considering the merits of Alfieri's pending site plan applications.

Alfieri argues that the GDP should be further extended to "at least" November 12, 2007, pursuant to N.J.S.A. 40:55D-45.1b, which authorizes the extension of GDP vesting rights through "[twenty] years from the date upon which the developer receives final approval of the first section of the planned development." Ibid. In this vein, Alfieri notes that the first final approval under the GDP, for a unit known as "Metropark South," was granted on November 12, 1985.

We need not resolve the question of whether an additional extension of the GDP from its already extended date of March 2, 2006 to November 12, 2007 should or should not be authorized, as the record before us is inadequate to make that assessment. Rather, the issue of the merits of an extension should be first addressed at the municipal level.

This brings us, finally, to the question of which governmental entity, at this juncture, in the Township should prospectively exercise jurisdiction over the GDP and the project as a whole. We conclude that, going forward, the Planning Board rather than the Board of Adjustment should perform that regulatory role. Such a result advances the policies underlying N.J.S.A. 40:55D-45.1, reposing jurisdiction over GDPs with planning boards rather than with boards of adjustment. Such a result also recognizes the sizeable dimensions of the pending, and presumably forthcoming, site applications from the developer. We reject the notion that the 1985 GDP conferred upon the property owner a permanent right to have all subsequent applications for the site heard by the Board of Adjustment. The Board of Adjustment's exercise of authority, while lawful at the time, must yield to the terms of subsequently-enacted legislation. See Asbury Park Press, Inc. v. City of Asbury Park, 19 N.J. 183, 196-97 (1955) (noting the principle that the intent of subsequent legislation must be given effect where possible).

We therefore modify the Law Division judge's determination to provide that Alfieri's undecided and complete site plan applications, and any other future site plan applications, arising out of or connected to the GDP, shall be heard by the Old Bridge Planning Board. We do so on the strict condition that the Planning Board may not nullify the GDP itself, nor the variances and other approvals already issued by the Board of Adjustment, unless the site owner or developer seeks their modification. We further instruct that the Planning Board address, expeditiously, Alfieri's three unheard site plan applications. This dispute has festered long enough over jurisdictional disagreements, and it is time for the open applications to be considered by the municipality on their merits, with dispatch. We express no view, of course, concerning the merits of those applications.

We have considered all other arguments raised by the parties and deem them of insufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

 
Affirmed, as modified. The matter is remanded to the Old Bridge Planning Board for further proceedings, on an expeditious basis, consistent with this opinion.

S. Burlington County NAACP v. Twp. of Mt. Laurel, 67 N.J. 151, cert. denied, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975).

The "R-7" zone in the Township is a single-family residential zone. The "SD-5" zone is designated as a "special development" zone.

Our determination in this regard makes it unnecessary to rule upon Alfieri's countervailing claims of equitable estoppel.

Although the Board of Adjustment was not specifically a party in Rondinelli, we note that the Township of Old Bridge was a named defendant in that case and, despite that party status, did not participate in the briefs or arguments on appeal.

We discern nothing in Citizens United to Protect the Maurice River and its Tributaries, Inc. v. City of Millville Planning Bd., 395 N.J. Super. 434 (App. Div. 2007), cited to us in supplemental post-argument briefs, that alters our analysis. Citizens United involved the substantive standards by which a planning board reviews a proposed GDP and subsequent developmental approvals under the GDP. The case factually involved a GDP application that had been presented, not to a board of adjustment, but to a planning board in 2004, long after the adoption of N.J.S.A. 40:55D-45.1 in 1987. Id. at 437. Citizens United did not involve, as here, a GDP that had been presented to a board of adjustment before the enactment of N.J.S.A. 40:55D-45.1 and after that board of adjustment had already exercised jurisdiction over the project through approval of a use variance.

We were informed at oral argument that since the time of the trial court's October 2006 order, the Board of Adjustment denied an extension request by Alfieri, and that denial triggered an order to show cause filed by Alfieri in the Law Division, the outcome of which was undetermined as of the time this case was argued before us. Because those proceedings are not in the record, we do not address the merits of that decision. Nor do we address the related question of whether the maximum twenty-year vesting period under N.J.S.A. 40:55D-45.1 should be equitably tolled here because of the time the parties have spent litigating jurisdictional issues. If the Law Division judge remands the GDP extension issue back to the municipality, or has already done so, such remanded proceedings should be conducted before the Planning Board rather than the Board of Adjustment, consistent with our general prospective determination that jurisdiction should now lie in the Planning Board.

(continued)

(continued)

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