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Flama Construction Corp. v. Township of Franklin

Decided: May 29, 1985.

FLAMA CONSTRUCTION CORP., PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF FRANKLIN, DEFENDANT-RESPONDENT



On appeal from Superior Court, Law Division, Somerset County.

Petrella and Baime. The opinion of the court was delivered by Petrella, J.A.D.

Petrella

[201 NJSuper Page 501] Plaintiff Flama Construction Corp. (Flama) instituted suit as a former and prospective developer of properties in Franklin Township. It challenged the validity of Franklin Township's ordinance requiring, as a prerequisite to any action by the Franklin Township Planning Board and Board of Adjustment on

a developer's application, payment into an escrow account of sums required to be expended for professional fees in connection with such application.

The municipality relied on N.J.S.A. 40:55D-8 b in adopting the ordinance, and says that the purpose of the escrow deposits is to pay the costs of professional fees which might be incurred by the township in reviewing development applications. The trial judge upheld the ordinance in a letter opinion. On this appeal Flama argues that the ordinance impermissibly delegates legislative authority in contravention of the Municipal Land Use Law because it lacks adequate standards to enable the planning board and the board of adjustment to determine costs and because the ordinance is contrary to N.J.S.A. 40:55D-24 and N.J.S.A. 40:55D-71. Flama also argues that the ordinance violates public policy.

Flama concedes that N.J.S.A. 40:55D-8 b authorizes a municipality to impose reasonable fees to defray the cost of reviewing development applications. That statute provides in pertinent part:

Fees to be charged (1) an applicant for review of an application for development by a municipal agency, . . . shall be reasonable and shall be established by ordinance.

We affirm substantially for the reasons expressed by Judge Meredith in his June 27, 1984 letter opinion. We add the following additional comments.

The ordinance provides for a specific dollar amount to be posted by the developer based on the size of the development and whether the proposed development is residential or "commercial/industrial development." Hence, a developer knows approximately the sum required to be posted. The ordinance also authorizes deviation from that fee schedule dependent upon an assessment of the complexity of the application based upon four specific criteria set forth in the ordinance.

Under the specific criteria in the ordinance the respective boards determine whether the initial deposit is "sufficient,

excessive or insufficient," and may make an adjustment accordingly. In our view these criteria express a reasonable concern that the complexity of a development proposal may vary depending on the presence or absence of enumerated factors such as public water and sewer service, environmental considerations, traffic impact, and the impact of the development on existing aquifers and above-ground water quality conditions.

The ordinance also provides for a refund, with interest, of sums not actually expended to pay the cost of professional fees, including fees for testifying, incurred by the board in connection with a particular development application. Although the exact amount ultimately to be charged may not be definitely fixed at the application stage because of uncertainty as to what may be involved in reviewing the application, mathematical certainty is not required for a fee ordinance to pass muster. See Spiegle v. Borough of Beach Haven, 46 N.J. 479, 493 (1966); cf. Airwick Indus., Inc. v. Carlstadt Sewerage Auth., 57 N.J. 107, 122, 57 N.J. 107 (1970) ...


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