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Whispering Woods at Bamm Hollow Inc. v. Township of Middletown Planning Board

Decided: June 3, 1987.

WHISPERING WOODS AT BAMM HOLLOW, INC., A CORPORATION OF THE STATE OF NEW JERSEY, AND HARRY KANTOR, FRANK DIMISA AND VICTOR LOSQUADRO, PLAINTIFFS,
v.
TOWNSHIP OF MIDDLETOWN PLANNING BOARD, AND JUDITH STANLEY, DEFENDANTS, AND SUNNYSIDE OPEN SPACES, ET AL., DEFENDANTS-INTERVENORS



McGann, J.s.c.

Mcgann

This matter came before the Court on plaintiffs motion for summary judgment dismissing the Counterclaim and Cross-claim of the defendants-intervenors and a cross-motion for summary judgment in favor of defendants-intervenors seeking a declaration that a "settlement" entered into between the plaintiff developer and the Planning Board in this litigation is void and of no legal effect. The facts on which both parties argue are not in dispute. They have fully briefed the legal issues. The matter is ripe for summary judgment.

Plaintiffs are the owners of a 275 acre tract of land (presently known as Bamm Hollow Country Club) located in an area of Middletown Township zoned for residential uses. On March 18, 1986 they filed an application with the Planning Board for conditional use, site plan and subdivision approvals as well as certain design waivers to enable them to develop the tract by the construction of 215 residential units surrounding a full, 18 hole golf course. The first public hearing on the application was duly scheduled for April 30, 1986. Subsequent public hearings were conducted on May 28 and June 18, 1986. All meetings were well attended. It was a matter of substantial public interest. The plaintiffs made a full presentation before the Board by way of expert testimony from professional planners, architect, engineer and traffic consultant. Detailed plans, supporting documents, expert reports and drawings were marked as exhibits. Input from the public was received by the Board. At the conclusion of the hearing on June 18, 1986, by a vote of five to four, the Board denied the application. A formal written resolution to that effect was not, however, prepared and entered. N.J.S.A. 40:55D-10g.

Instead the plaintiffs, through counsel, persuaded the Board to reopen the matter and reschedule it for a public hearing to consider a revised plan intended to address the concerns of the majority members who had voted to deny the application at the regular meeting of July 18, 1986. August 6, 1986 was set as the "workshop meeting" at which the revised plan would be informally discussed with the Board and August 20, 1986, as the public hearing date. Plaintiffs waived the time limitations under N.J.S.A. 40:55D-10g(2). Contrary to the plaintiffs' expectations, when the Board met again on August 6, 1986 it did not consider the revised plan but instead voted a resolution to memorialize the prior denial (on June 18, 1986) of the original plan. Nonetheless the Board's agenda for its August 20, 1986 public meeting listed as an item to be considered a "review of revised plans" for Bamm Hollow. Plaintiffs duly complied with the Municipal Land Use Law by notifying all property owners within 200 feet of that meeting and also by publishing newspaper notice.

Since notice of the August 6th memorializing resolution had been published in the newspaper and in order to stay within the 45 day time limitation set by R. 4:69-6, plaintiffs filed this action in lieu of prerogative writs on August 20, 1986. Named as defendants were the Board and its Chairperson, Judith Stanley.

The complaint contains three counts. The first count sets forth the usual claim that the denial by the Board was arbitrary, capricious, unreasonable and illegal. The second count sought to set aside the resolution of denial as well as the oral 5-4 vote on the ground that both actions of the Board were "tainted" by the participation and vote (negative to plaintiffs in both instances) of Stanley because of the conflicting interests which motivated her vote. The third count alleged reversible "taint" in the Board's proceedings based on the fact that a condemnation action by the County of Monmouth against the Bamm Hollow tract was not only pending but loomed large (and improperly) in the thinking of the members who had voted to deny the application.

Concomitant with the filing of the Complaint the Court entered an Order to Show Cause as initial process. It contained a temporary restraint against Stanley's participating in any further Board proceedings affecting the Bamm Hollow property. For the return date of September 10, 1986, the Board was directed to show cause why the vote of denial of the application should not be set aside as invalid and Stanley was directed to show cause why the temporary restraint should not be continued pendente lite. Stanley's Answer, Counterclaim and Motion to dissolve the temporary restraint were filed on September 2, 1986. On the return date an order was entered denying the motion to dissolve the restraints and continuing the restraints and return date of the order to show cause to a date to be fixed. An interlocutory appeal by Stanley to the Appellate Division was denied on September 11, 1986.

At the Board level other actions were occurring in the meanwhile. At its regular meeting of August 20, 1986 (and with the restraint against Stanley's participation in place) the Board requested a closed session meeting with plaintiffs' counsel to discuss settlement of this litigation. A proposed settlement by way of a revised plan to meet the concerns of the members (other than Stanley) who had voted against the original application was arrived at. A majority (6-1) of the Board was favorably inclined based on an informal poll. Counsel for the Board and for the plaintiffs subsequently agreed on the specific terms of a Stipulation of Settlement which was then reduced to writing. At a public meeting of the Board held September 3, 1986, a majority (7-1) voted to approve that Stipulation. Counsel for the Board and for the plaintiffs then signed the Stipulation on September 11th and filed it with the Court on September 12, 1986.

Aware, apparently, of the settlement negotiations being conducted by the Board and the plaintiffs, various civic associations and affected property owners filed a motion to intervene as parties-defendant on September 2, 1986. Over plaintiffs' objection that motion was granted on September 24, 1986. The

intervenors filed their Answer, Counterclaim and Crossclaim on September 26, 1986. The First Count of the Counterclaim -- Crossclaim attacked the "action" taken by the Board at the August 20th meeting as void because of an alleged violation of the Open Public Meeting Law as well as because of a claimed lack of "jurisdiction" of the Board to act while this action was pending in court. The Second Count seeks a dismissal of any reapplication by plaintiffs on the ground that they have no "standing" because the County of Monmouth had instituted condemnation proceedings against the property and had filed a declaration of taking. By order of December 22, 1986 the issues raised by the intervenors were severed from those raised in the Complaint for purpose of trial. Intervenors' issues were directed to be first resolved.

The Stipulation of Settlement filed with the court recites the original application made by plaintiffs; the fact that, with additional agreed-to requirements, the application for preliminary major subdivision approval and the requested design waivers is granted. The additional agreed-to items were: 1) that no overall site grading questions remained open. (Individual lot grading requirements of the Township Engineer were to be addressed either at the time of final subdivision approval or when application was made for issuance of a Building Permit); 2) a new replanting plan showing the planting of trees after site clearance; 3) preparation of appropriate legal documents which would insure the open space use of the golf course in perpetuity either for a golf course or other open space or recreational purposes and upon terms protecting the interests of the current membership of the existing golf course and the future interests of the home owners in the proposed development. 4) Compliance by the developers with the requirements of the Township Engineer as to various sidewalk and street construction and 5) the payment of additional engineering review fees to the Township Engineer. From the standpoint of a major subdivision of the magnitude involved here, those requirements may rightly be termed insubstantial changes from the original submission.

The Stipulation further provided that "This application, including the discussion of any items which are conditions of this approval shall be heard on September 3, 1986, and thereafter if necessary, as previously resolved by Defendant, Township of Middletown Planning Board." The return date of the Order to Show Cause signed August 20, 1986 was agreed to be October 8, 1986 in order to allow for the following action to occur. "The within, settled matter, shall become a matter of public record and shall be . . . considered at a public hearing after due notice, with any questions or comments from the public to be limited to any new evidence presented." The Stipulation further provided: "Once the conditions of approval herein are approved by the Defendant at a public meeting and resolution published to that effect, a Consent Order or Stipulation of Dismissal dismissing the matter as between the parties who are signatories to this agreement shall be filed."

Subsequent to the September 3, 1986 Board meeting, plaintiffs submitted a revised tree planting scheme to the Board and provided newspaper notice and notice to all property owners within 200 feet of the premises of a hearing to be held concerning the Bamm Hollow matter by the Board on September 17, 1986. The notice indicated that the Board and plaintiffs had settled the litigation and that such settlement was discussed and entered on the record at a public meeting on September 3, 1986. The notice further provided that a public hearing would be held on September 17, 1986 at which time members of the public could appear either in person, or by agent or attorney, and present any comments or objections to "any evidence presented by the applicant relating to the settlement."

On September 17, 1986, the Board conducted a public hearing to consider the additional evidence provided by plaintiffs pursuant to the stipulation of settlement. Intervenors and their attorney were present. At the conclusion of that meeting, the Board initially voted to approve the revised tree planting scheme, and then voted in favor of a ...


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