On appeal from the Superior Court of New Jersey, Law Division, Bergan County.
Michels, King and Edward Gaulkin. The opinion of the court was delivered by King, J.A.D.
[192 NJSuper Page 341] Defendants appeal from an order of the Law Division compelling issuance of soil removal and partial building permits. The matter was treated in a summary fashion. See R. 4:67. For reasons to be explicated, we conclude that a remand for a plenary hearing is required on these issues: (1) whether plaintiff materially and substantially complied with the conditions attached to the final site-plan approval within two years of its issue, and (2) if there was no such compliance whether the
municipality unreasonably thwarted by delay or otherwise plaintiff's attempts to comply with the conditions within that two-year period, thereby making performance by plaintiff within the time limit impossible. If the judge on remand finds material and substantial compliance within the two years, the permits should issue. If there were no material and substantial compliance because of unconscionable conduct by the municipal authorities, the permits also should issue. If the two-year period expired without any application for extension and the plaintiff had not materially and substantially complied with the conditions through no fault of the municipality, the Township may lawfully refuse the permits because of the expiration of the two-year period of protection from zoning change under N.J.S.A. 40:55D-52(a).*fn1
Plaintiff, YM-YWHA of Bergen County, is a non-profit organization whose goal is to serve the cultural and recreational needs of all residents of the community. In 1979 plaintiff contracted to buy a tract of land in Washington Township -- identified on the township tax map as Lot 3, Block 3202. Later that year, plaintiff applied to defendant Washington Township Planning Board for preliminary site plan approval for the building of a cultural, recreational center on that tract. At the time of plaintiff's application for preliminary approval, the proposed structure was a permitted use under the municipality's zoning
ordinance. While plaintiff's application for preliminary site approval was pending, an amendatory ordinance to the zoning scheme pertaining to plaintiff's property was introduced before the council of Washington Township on January 1, 1980. The amendatory ordinance eliminated plaintiff's proposed use of the tract from the list of permitted uses in that zone. Nevertheless, on February 6, 1980 preliminary site approval was granted by the defendant planning board. Less than a month later, on March 3, 1980, the amendatory ordinance which excluded the proposed use of plaintiff's property was adopted.
Sometime within this period, a group of Washington Township citizens started a suit challenging the grant of preliminary approval to plaintiff by the planning board. While this suit was pending, the plaintiff applied for final site plan approval which was granted on October 1, 1980. This final site plan approval was subject to four major conditions:
(1) That the final site plan approval be contingent upon Bergen County Planning Board approval;
(2) That the applicant enter into an agreement with the municipality that it will construct and install all the improvements set forth in the final site plan, at its cost and expense, with appropriate performance and maintenance guarantees, and provision for the payment of the municipality's legal and engineering expenses concerning the application and inspection and installation of said improvements. . . .
(3) Final subdivision approval be contingent upon the Superior Court of New Jersey affirming the action of the Planning Board's preliminary site plan approval or such terms and conditions as the Superior Court of New Jersey hereinafter orders in the pending litigation;
(4) That final subdivision approval be subject to further review and approval of the landscaping plan, the submission of which to the Planning Board shall be no later than the submission of the architectural plans to the appropriate official of the Township and prior to the planting of any landscaping vegetation.
From the time of the conditional final site plan approval on October 1, 1980 until October 1, 1982 a number of exchanges between the parties culminated in the Township's assertion that plaintiff's proposed use of its land was no longer permitted and in plaintiff's institution of the present suit. This dispute concerns the parties' disagreement over whether the conditions necessary for final site plan approval were met by the October 1, 1982 deadline and upon the interpretation of N.J.S.A. 40:55D-52,
which insures developers that the zoning requirements applicable to their land at the time preliminary approval was granted will not be changed for two years after the date of final approval. Because the Law Division judge decided the case as a summary matter, without taking evidence, the pertinent facts must be gleaned from the ...