MAJESTIC CONTRACTING LLC v. WILLIAM H. NUNZIATO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1659-09T3

MAJESTIC CONTRACTING, LLC,

Plaintiff-Appellant,

v.

WILLIAM H. NUNZIATO and THE

TOWNSHIP OF HOWELL,

Defendants-Respondents.

____________________________________

November 18, 2011

 

Argued December 7, 2010 - Decided

 

Before Judges Graves, Messano, and Waugh.

 

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2541-08.

 

Mark Williams argued the cause for appellant (Mehr LaFrance & Williams, attorneys; Mr. Williams on the briefs).

 

Ernest Bongiovanni argued the cause for respondents (Marriott Callahan Blair & Greer, attorneys; Mr. Bongiovanni, on the brief).

 

PER CURIAM

Plaintiff Majestic Contracting, LLC (Majestic), appeals from the order of the Law Division dismissing its action in lieu of prerogative writs challenging the actions of defendant William H. Nunziato, Jr., in his capacity as the municipal engineer of defendant Township of Howell, in requiring certain actions prior to signing the subdivision plat for Majestic's subdivision known as Evergreen Estates. Majestic also challenges the validity of the Township's ordinances requiring a developer agreement, drainage-basin maintenance escrow agreement (escrow agreement), and tree removal and replacement approval. We affirm as to all issues except the escrow agreement. We hold that the amount of the escrow required by Howell with respect to the drainage basin was beyond its statutory authority. We reverse with respect to the escrow agreement, but remand to the Law Division for consideration of whether Majestic waived or is estopped from asserting entitlement to a refund.

I.

We discern the following facts and procedural history from the record on appeal.

Majestic is a developer of residential properties. It applied to the Howell Township Planning Board (Board) for preliminary and final approval for the Evergreen Estates subdivision, which consists of eight building lots and one open-space lot containing a drainage basin. Because the proposed subdivision required the removal of trees, Majestic was also required to submit a woodlands management plan to the Board. Howell, N.J., Code 188-193(B)(1).

The Board held a public hearing on Majestic's application in October 2005. On November 3, it adopted a resolution granting preliminary and final major subdivision approval and also woodlands management approval. In the resolution's findings of fact, the Board noted that Majestic had "agreed to comply with all recommendations by the Township's Certified Tree Expert." The resolution also contained the following conditions to the Board's approval:

2. Except where specifically modified by the terms of this Resolution, the Applicant shall comply with all recommendations of the Board Consultants contained in the reports as set forth on the attached Exhibit List.

 

. . . .

 

7. The Applicant shall comply with all recommendations from the Township's Certified Tree Expert with regard to landscaping and Woodlands Management approval.

 

. . . .

 

11. Subject to all other applicable rules, regulations, ordinances and statutes of the Township of Howell, County of Monmouth, State of New Jersey or any other jurisdiction.

 

Majestic subsequently applied for amended subdivision approval, seeking to substitute septic systems for public sewer connections. Following a public hearing in July 2006, the Board adopted a resolution on August 17, granting approval to the amended plan, allowing the substitution of septic systems for public sewers.1 The second resolution contained language similar to the initial resolution.

Significantly for the purpose of this appeal, neither of the Board's resolutions specifically required Majestic to sign a developer's agreement or an escrow agreement, or to file deeds of easements in conformance with the final subdivision map. Nunziato advised Majestic in a May 17, 2007 letter that it was required to enter into both a developer's agreement and an escrow agreement. The amount eventually calculated for the escrow agreement was $224,000.85. Nunziato's letter also required Majestic to prepare and submit five deeds for approval and recording with the subdivision plat. The deeds were to reflect dedication of the drainage-basin property to the Township, perimeter buffer and conservation easements, conservation easements for riparian buffer, and a shade tree and utility easement. Nunziato informed Majestic that he would not sign the subdivision plat map until the escrow agreement, the developer's agreement, and the deeds were submitted and approved.

In December 2006, Howell's tree expert submitted a summary report reflecting that his tree count was at variance with Majestic's approved woodlands management plan. According to the report, 165 more trees were to be removed than would be replaced. Consequently, Majestic was required to pay $49,500 to the Township's tree fund pursuant to Howell, N.J., Code 188-195(C). Majestic made the required payment in April 2007.

In May 2008, Majestic filed an action in lieu of prerogative writs. The complaint alleged that, because the Board lacked the authority to delegate technical matters to Township officials, requirements imposed by Nunziato and the tree expert were ultra vires and unenforceable. It further alleged that certain municipal ordinances were invalid as ultra vires, preempted by State statutes, or contrary to the purposes of the Municipal Law Use Law (MLUL), N.J.S.A. 40:55D-1 to -136, specifically N.J.S.A. 40:55D-2. Finally, Majestic alleged that the conditions at issue were invalid because they were imposed by municipal officials after the Board's approval of Majestic's application.

Following discovery and the denial of motions for summary judgment filed by both sides, the case was tried over five days in September and October 2009. On October 15, the trial judge delivered an oral decision rejecting Majestic's arguments. She determined that (1) the challenged ordinances were valid, (2) the Board's delegation of limited authority to Township officials was permissible, and (3) the conditions imposed on the approval were reasonable. The judge further concluded that, in any event, Majestic's claims were procedurally barred because it failed to appeal the conditions under the appellate process outlined in the Township's ordinances. Howell, N.J., Code 188-203. The judge entered an order of dismissal on October 27, 2009.

This appeal followed. We denied Majestic's application for summary disposition.

II.

Majestic argues on appeal that the trial judge erred in dismissing its complaint.

When we review a decision reached by a trial judge following a bench trial, "[t]he general rule is that [factual] findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). We do not disturb the factual findings of the trial judge unless we are "'convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484); see also Beck v. Beck, 86 N.J. 480, 496 (1981). However, we review issues of law decided by the trial courts on a de novo basis. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

Majestic's appeal is broadly focused on four items required by the Township's engineer prior to his execution of the subdivision plat: (1) the execution of a developer's agreement; (2) the execution of an escrow agreement; (3) the required payments to the Township's tree fund based upon the calculations of the Township's tree expert; and (4) the preparation and execution of the five deeds. With respect to the developer's agreement, the escrow agreement, and the five deeds, Majestic argues that the Township's engineer acted improperly because the items were not specifically made conditions of the subdivision approval granted by the Board. Majestic also argues that the ordinances requiring the developer's agreement, the escrow agreement, and the tree fund payment are invalid. Finally, Majestic challenges the methods utilized in determining the amount of the escrow for maintenance of the drainage basin and the tree fund payment.

A.

We turn first to the issue of the developer's agreement, as to which Majestic argues that the Board did not require such an agreement and that the municipal ordinance requiring one is invalid.

Howell, N.J., Code 188-46(P) provides, in relevant part, as follows:

The developer shall enter into a developer's agreement with the governing body prior to the signing and recording of final major subdivision plats and as a condition of final site plan approval. . . . This agreement shall be of a form that is acceptable to the Township Attorney and Township Engineer. The developer's agreement shall require that the developer agrees to abide by the terms and conditions and the Board approval, construct the required improvements in accordance with the approved plans, agree to maintain the constructed improvements, including but not limited to, payment of streetlighting charges, snow removal, maintenance of storm drain, sewer and water facilities. The developer shall also agree that in the event that improvements are not maintained, the Township can utilize the cash portions of the performance guarantees to immediately attend to such items.

 

The Board's resolutions approving Majestic's subdivision conditioned approval on compliance with all municipal ordinances. Although the resolution's conditions might have been articulated more clearly, a fair reading of both resolutions makes execution of a developer's agreement, as required by ordinance, a condition of approval. Consequently, we reject Majestic's argument that execution of the agreement was not a condition of the Board's approval.

Majestic also argues that, because such an agreement is not specifically required or authorized by the MLUL for this type of development, Howell's ordinance is ultra vires and invalid. We disagree.

The New Jersey Constitution gives the Legislature the power to enact legislation governing zoning and land development. N.J. Const. art. IV, 6, 2. The Legislature enacted the MLUL in 1976. It allows municipalities to adopt ordinances to regulate land development "in a manner which will promote the public health, safety, morals and general welfare." Levin v. Twp. of Parsippany-Troy Hills, 82 N.J. 174, 178-79 (1980). The MLUL is the only source of municipal power to regulate land development. Rumson Estates, Inc., v. Mayor of Fair Haven, 350 N.J. Super. 324 (App. Div. 2002), aff'd, 177 N.J. 338, 349 (2003).

N.J. Const. art. IV, 7, 11 provides:

The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. The powers of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law.

 

N.J.S.A. 40:55D-92 provides that, because the MLUL is "necessary for the welfare of the State and its inhabitants," it "shall be considered liberally to effectuate the purposes thereof."

A land use ordinance is presumed valid. Rumson Estates, supra, 177 N.J. at 350. That presumption "may be overcome by showing that the ordinance is 'clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning or the [zoning] statute.'" Riggs v. Twp. of Long Beach, 109 N.J. 601, 610-11 (1988) (alteration in original) (quoting Bow & Arrow Manor, Inc. v. Town of W. Orange, 63 N.J. 335, 343 (1973)); accord Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 290 (2001), cert. denied, 535 U.S. 1077, 122 S. Ct. 1959, 152 L. Ed. 2d 1020 (2002). The party attacking an ordinance has the burden of overcoming the presumption of validity. Rumson Estates, supra, 177 N.J. at 350; Riggs, supra, 109 N.J. at 611. Where the validity of an ordinance is debatable, the ordinance should be upheld. Manalapan Realty, supra, 140 N.J. at 385; Riggs, supra, 109 N.J. at 611.

An ordinance must advance at least one of the fifteen general purposes identified at N.J.S.A. 40:55D-2. Manalapan Realty, supra, 140 N.J. at 380; Riggs, supra, 109 N.J. at 611. Even if an ordinance advances one, some, or all of the purposes of the MLUL, "the ordinance will be invalidated if the restrictions it imposes on the use of land are not 'reasonably related to those purposes' or 'conflict[] with other purposes of the MLUL.'" Bailes v. Twp. of E. Brunswick, 380 N.J. Super. 336, 349 (App. Div.) (alteration in original) (quoting Sartoga v. Borough of W. Paterson, 346 N.J. Super. 569, 579 (App. Div.), certif. denied, 172 N.J. 357 (2002)), certif. denied, 185 N.J. 596 (2005).

N.J.S.A. 40:55D-38 provides that "[a]n ordinance requiring approval by the planning board of either subdivisions or site plans, or both, shall include the following: . . . (e) [p]rovisions ensuring performance in substantial compliance with the full development plan." That language demonstrates that the MLUL is concerned with having developers comply with the conditions of subdivision approvals. Consequently, the ordinance's requirement that there be a developer's agreement is consistent with the purposes of the MLUL and does not conflict with any of its provisions.

In Talcott Fromkin Freehold Assocs. v. Freehold Twp., 383 N.J. Super. 298, 314 (Law Div. 2005), the Law Division observed that, although developer's agreements are "not the creature of statute," they "have been used for a substantial period of time in the State of New Jersey to address the terms and conditions of an approval and to allocate responsibilities, obligations, privileges and rights during construction."

In Toll Bros. v. Board of Chosen Freeholders of Burlington, 194 N.J. 223, 248 (2008) (internal quotation marks omitted), the Supreme Court described "[a] developer's agreement [a]s a contract between a developer and a public authority that details the manner in which the conditions of approval will be fulfilled." The Court recognized that they are not mentioned in the MLUL, except in connection with general development plans under N.J.S.A. 40:55D-45.2(l), but noted that "'the practice of entering into developer's agreements on developments not covered by the statute has become common and has been recognized by some courts.'" Ibid. (quoting William M. Cox, New Jersey Zoning and Land Use Administration 24-7.5 at 565 (2007)). The Court recognized that "[b]y its very nature, a developer's agreement is not . . . an independent contractual source of obligation," but that "its purpose is to help carry out the conditions imposed by the Board." Id. at 249.

Consequently, we reject Majestic's arguments with respect to the validity of Howell's ordinance concerning developer's agreements and the Township's engineer's requirement that one be signed prior to his signing of the subdivision plat. We affirm the order on appeal with respect to those issues.

B.

We turn next to the escrow agreement, which Majestic characterizes as ultra vires and vague. Majestic also argues that it was not required by the Board, and that the amount of what the applicable ordinance characterizes as an "escrow contribution" was improperly calculated.

Howell, N.J., Code 188-27 requires control of storm water runoff. 188-27(D)(5)(h)(3)(c) provides, in pertinent part, as follows:

Where continued maintenance of a detention basin is to be the responsibility of the Township, the following provisions may apply:

 

[i] The applicant shall maintain the basin during the construction phase of the project.

 

[ii] The applicant shall enter into an escrow agreement with the governing body prior to the signing and recording of the final subdivision plat and as a condition of subdivision approval from the Boards. The Township shall not accept the basin until the applicant has executed and filed the escrow agreement which shall include a statement that the escrow contribution is made in consideration of the Township assuming all future maintenance of the basin. . . .

 

[iii] Prior to final approval, all applicants must submit an operations and maintenance plan . . . subject to the review and approval of the Board Engineer. The amount of the developer's contribution shall be based upon said plan, which will include a detailed cost estimate, outlining the cost of basin, operation, and maintenance tasks, including interim and formal maintenance operations such as mowing, sediment, trash, and debris removal, maintenance of the infiltration layer of recharge basins, storm sewer cleaning, etc. Regardless, the minimum contribution shall be $42,550.

 

[(Emphasis added.)]

 

We reject Majestic's argument that the use of the word "may" at the beginning of the provision makes the escrow agreement an option that the board never imposed with respect to its subdivision. A fair reading of the ordnance as a whole reveals that the operative provisions of the ordinance are mandatory. It uses terms such as "shall maintain" and "shall enter into an escrow agreement." The municipal engineer's action in requiring the escrow was not unauthorized, arbitrary or capricious in light of the language in the resolutions conditioning approval on compliance with municipal ordinances and statutory enactments.

N.J.S.A. 40:55D-38(c) requires municipalities to adopt ordinances to create, among other things, standards for drainage facilities. N.J.S.A. 40:55D-53(a) specifically authorizes a municipality to

require . . . in accordance with the standards adopted by ordinance and regulations adopted pursuant to section 1 of P.L. 1999, c. 68 (C. 40:55D-53a) for the purpose of assuring the installation and maintenance of on-tract improvements:

 

. . . .

 

(2) Provision for a maintenance guarantee to be posted with the governing body for a period not to exceed two years after final acceptance of the improvement, in an amount not to exceed 15% of the cost of the improvement, which cost shall be determined by the municipal engineer according to the method of calculation set forth in section 15 of P.L. 1991, c. 256 (C. 40:55D-53.4).

 

In addition, as previously noted, N.J.S.A. 40:55D-38 more generally authorizes ordinances concerning compliance with the terms of subdivision approval.

Because we read 188-27(D)(5)(h)(3)(c) together with N.J.S.A. 40:55D-38, we are satisfied that the ordinance is not ultra vires per se. However, Howell's ordinance goes beyond the language of the statute in two ways. First, it requires a contribution to the municipality, rather than an escrow or security bond to cover maintenance cost. Although denominated an "escrow contribution," it is really a payment to the municipality based on the estimated costs of maintenance as to which the developer is entitled to no refund of any unused funds. Second, it sets a minimum maintenance contribution of $42,550. To the extent that minimum exceeds the fifteen percent cap set forth in N.J.S.A. 40:55D-53(a)(2), it conflicts with N.J.S.A. 40:55D-38 and cannot be enforced.

In addition, although the method of calculation is not set forth in the ordinance, the escrow required by the Township's engineer was calculated on maintenance costs for ten years, which is beyond the two years contained in N.J.S.A. 40:55D-53(a)(2). The parameters for the escrow set forth in N.J.S.A. 40:55D-53(a)(2) have been discussed as follows:

As to completed improvements which have been accepted by the governing body, the developer may by ordinance be required to post a maintenance bond for a period not to exceed two years, the amount which is limited to 15% of the cost of improvements. N.J.S.[A.] 40:55D-53(a)(2) and 40:55D-53.4. But see Talcott Fromkin [Freehold Assocs.] v. Freehold Twp., 383 N.J. Super. 298, [311-312] (Law Div. 2005), holding that a township's requirement that a developer maintain a dedicated drainage basin for a period of ten years did not violate N.J.S.[A.] 40:55D-53(a)(2).

[William M. Cox & Stuart R. Koenig, New Jersey Zoning & Land Use Administration 24-5 at 570 (2011).]

 

In Talcott Fromkin, supra, 383 N.J. Super. at 312, the Law Division held that the municipal ordinances similar to Howell's were

a valid exercise of municipal legislative power and are not violative of or contradictory to the [MLUL], N.J.S.A. 40:55D-53(a)(2), or any other authority. The Township is lawfully permitted to require the maintenance of the voluntarily dedicated and voluntarily accepted basins for a reasonable amount of time. The Court finds the 10-year requirement in the amount of $83,175.41 reasonable under these circumstances.

 

However, the judge did not explain why he determined that an ordinance could require an escrow in excess of the specific parameters of the statute concerning duration and amount.

The judge in Talcott Fromkin relied, in part, on the provisions of N.J.A.C. 7:8-5.8, a regulation of the New Jersey Department of Environmental Protection (DEP). Id. at 311. However, N.J.A.C. 7:8-5.8(i) merely provides that the DEP regulation does not "preclude the municipality in which the major development is located from requiring the posting of a performance or maintenance guarantee in accordance with N.J.S.A. 40:55D-53." It does not address the issue of the amount or duration of the escrow.

Of more significance on the issue of the amount of the escrow is N.J.A.C. 5:36-4.2, which is a regulation of the Department of Community Affairs (DCA). It sets out a standardized surety bond for maintenance of improvements accepted by a municipality as part of a subdivision. The form provides, in part, as follows:

Pursuant to municipal ordinance, adopted under authority of the [MLUL] (N.J.S.A. 40:55D-1 [to -136]), the principal, as a condition of approval or acceptance of improvements, hereby furnishes this maintenance bond in the amount of $ ...... (not to exceed 15 percent of the cost of the improvements as certified by the municipal engineer), written by ......., a surety licensed in the State of New Jersey, guarantying full and faithful compliance with all terms and conditions of the approval. The bond shall continue in effect for a period of ...... (not to exceed two years) from the date of approval or acceptance of the said improvements.

 

[(Emphasis added.)]

 

The DCA regulation was adopted pursuant to authority granted to the DCA by N.J.S.A. 40:55D-53a, which was enacted by Section 1 of L. 1999, c. 68 (Act). Section 2 of the Act, codified as N.J.S.A. 40:55D-53b, provides that "[n]otwithstanding any ordinance to the contrary, an approving authority shall accept the standardized form for a performance guarantee, maintenance guarantee or letter of credit adopted" by the DCA under N.J.S.A. 40:55D-53a. Section 3 of the Act amended N.J.S.A. 40:55D-53 to incorporate a reference to the DCA regulations establishing the standardized form. It is clear, therefore, that the DCA was given explicit statutory authority over implementation of the escrow provisions of N.J.S.A. 40:55D-53(a)(2).

"When interpreting a statute, our main objective is to further the Legislature's intent," and to do so we "first turn to the plain language of the statute in question." TAC Assocs. v. N.J. Dep't of Envtl. Prot., 202 N.J. 533, 540-41 (2010) (citations omitted). In addition, the interpretation of an agency empowered to enforce the statute is given "substantial deference in the context of statutory interpretation." Klumb v. Bd. of Educ., 199 N.J. 14, 24 (2009) (citations omitted).

A plain reading of the language of N.J.S.A. 40:55D-53(a)(2) leads us to the conclusion that the Legislature intended the phrase "for a period not to exceed two years after final acceptance of the improvement, in an amount not to exceed 15% of the cost of the improvement" to set the outside limits of a maintenance escrow for an improvement, including a drainage basin. Our interpretation is fully supported by DCA's implementing regulation, N.J.A.C. 5:36-4.2, which incorporates the fifteen-percent cap and two-year period in the standardized form.

We also note that the DEP's sample municipal stormwater ordinance refers to "a two year maintenance guarantee in accordance with N.J.S.A. 40:55D-53." N.J. Dep't of Envtl. Prot., New Jersey Stormwater Best Management Practices Manual, app. D, sec. 10.B.9 note (2004); see also R.J.P. Builders, Inc. v. Twp. of Woolwich, 361 N.J. Super. 207, 211 (App. Div. 2003) (presumed, but not decided, that the maintenance escrow is for the two year period mentioned in the statute).

A municipality "must exercise [its] powers relating to . . . land use in a manner that will strictly conform with [the MLUL's] provisions." New Jersey Shore Builders Ass'n v. Twp. of Jackson, 199 N.J. 449, 452 (2009). Consequently, we hold that a municipality cannot require by ordinance, and a planning board cannot impose as a condition of subdivision approval, a maintenance escrow in excess of the parameters set by N.J.S.A. 40:55D-53(a)(2) and embodied in N.J.A.C. 5:36-4.2. Similarly, we see no statutory basis for requiring payment of a non-refundable "escrow contribution," as opposed to a security bond or other such undertaking. To the extent Talcott Fromkin reached a different result, we decline to follow it.

Although the opinion in Talcott Fromkin was broadly worded to approve the ordinance at issue in a way we have rejected, the decision also turned on the judge's determination that the plaintiff developer was estopped from challenging the amount of the escrow. Talcott Fromkin, supra, 383 N.J. Super. at 314-16. The estoppel was based upon the fact that the developer challenged the amount of the escrow only after the development was completed and the lots sold, at which point it was too late for the municipality to refuse to accept the maintenance obligation. Ibid.

In this case, the challenge came much earlier in the process. Although Majestic did not appeal the amount of the escrow to the county construction board of appeals, as permitted by N.J.S.A. 40:55D-53(a)(2) through its reference to N.J.S.A. 40:55D-53.4, it did challenge the escrow-agreement ordinance itself, as well as the municipal engineer's insistence that the escrow agreement be signed prior to signing the plat map. Majestic's suit was started before it signed the escrow agreement and started work on the project. It appears, however, that the agreement was subsequently signed while the suit was pending, shortly before the date on which the subdivision approval was to expire.

The failure to exhaust the administrative appeal as to the amount of the escrow and the signing of the agreement while the litigation was pending, if done without a reservation of rights, could constitute a waiver of the right to recoup the escrow or warrant an estoppel as found in Talcott Fromkin, supra, 383 N.J. Super. at 314-16.2 Such action might have foreclosed the Board from making a different decision on the issue of whether to accept dedication of the drainage basin in light of a determination that Howell's implementation of its authority to require an escrow agreement was invalid.

Because we conclude that we do not have sufficient facts or briefing to address the issues of waiver or estoppel, we remand for further consideration by the trial judge.

C.

Majestic also challenges the validity of Howell's tree removal and replacement ordinance, arguing that it too is ultra vires and unenforceable.

Howell, N.J., Code 188-187 to -200 provides a comprehensive woodlands management program governing tree removals throughout the Township, with limited exemptions not relevant here. Although allocated to the land use section of the Township's ordinances, the ordinances implementing the woodlands management program are of general application. They apply equally to tree removals wherever located and are not restricted to removals related to subdivisions or similar development. Consequently, they are a valid exercise of a municipality's police power under N.J.S.A. 40:48-2. New Jersey Shore Builders Ass'n v. Twp. of Jackson, 199 N.J. 38, 54 (2009).

The primary goal of the woodlands management program appears to be the replacement of removed trees. However, there is a waiver provision, Howell, N.J., Code 188-195(C), applicable when the number of trees removed exceeds the number of replacement trees "due to limited available planting area." In such instances, there can be a contribution to the Township tree fund, at the rate of $300 per non-replaced tree, in lieu of replacement. There is an overall cap of $35,000 on the contribution requirement. The payment-in-lieu-of-replacement provision is a provision of general application, and not one that is limited to tree removals incident to a subdivision or other development. A similar provision was upheld in New Jersey Shore Builders, supra, 199 N.J. at 60.

To the extent the tree removals involve new developments such as Evergreen Estates, the process is implemented through the applicable land use board. Howell, N.J., Code 188-193(B)(1). We view that as an administrative convenience, and not an attempt by Howell to exercise authority conferred by the land use provisions of the MLUL. In addition, we see no inconsistency between that approach and the MLUL. Similarly, we are not persuaded by Majestic's argument that the allocation of the ordinance to the land use section of the ordinance book has juridical significance in terms of its relationship to the MLUL. Such an argument elevates form over substance. The woodlands management plan is, as we have noted, clearly authorized by N.J.S.A. 40:48-2, which is not part of the MLUL.

The trial judge found that

[a]t the hearings, plaintiff agreed to comply with the recommendations of Township's certified tree expert and to comply with all the recommendations contained in the reports of the Board's professionals, and to submit an additional environmental impact statement. The appli- cation was conditioned not only upon compliance with these recommendations, but also subject to "all other applicable rules, regulations, ordinances, and statutes of the Township of Howell, County of Monmouth, State of New Jersey, and/or other jurisdictions."

 

Compliance with the woodlands management ordinances was an appropriate condition of subdivision approval. It was sought by Majestic in connection with its application to the Board and was agreed to by Majestic during the hearings on its application.

Majestic never sought an administrative review of the tree expert's determinations, as permitted by Howell, N.J., Code 188-203, and failed to present evidence that they were incorrect at trial. We reject its challenge to the amount of the required contribution for those reasons.

Consequently, we affirm the order on appeal as it relates to the woodlands management program and the required payment to the tree fund.

D.

We have reviewed Majestic's remaining arguments, including those related to the requirement that it prepare the five deeds, in light of the trial judge's findings and the applicable law, and find them to be without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). With regard to Majestic's remaining arguments, we affirm for the reasons stated by the trial judge in her October 15, 2009 oral decision and the general principles we have outlined above. R. 2:11-3(e)(1)(A).

Affirmed in part, reversed in part and remanded in part. We do not retain jurisdiction.

 

1 Majestic's woodlands management plan was amended in November 2006 to reflect recommendations made by the tree expert in light of the substitution of a septic systems for a public sewer connections.

2 Presumably, Evergreen Estates has been built and some or all of the lots have been sold. If so, a return of the maintenance escrow made by Majestic could constitute a windfall to Majestic, at least to the extent the expense of the "escrow contribution" was built into the price of the houses and recouped in that manner.