King, Brody and Ashbey. The opinion of the court was delivered by King, P.J.A.D.
This case presents issues concerning (1) intervention as of right for purposes of appeal under R. 4:33-1, (2) automatic approval of variance applications under N.J.S.A. 40:55D-61, and (3) the power to grant so-called "flexible variances" under N.J.S.A. 40:55D-70(c)(2) for substantially sized tracts.
Chesterbrooke Limited Partnership (plaintiff) is the owner of a 570-acre parcel of land in the Township of Chester. It applied to the Planning Board of the Township (Board) for subdivision approval and for certain variances, pursuant to N.J.S.A. 40:55D-70c(2) of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -112, in order to create an 82-lot subdivision using a "lot averaging plan." Plaintiff's 570-acre parcel
was in the R-5 zone, which permitted single-family residences on a minimum lot size of five acres, with a minimum lot width of 300 feet at the front setback line and an inscribed circle with a minimum diameter of 300 feet tangent to the front setback line. This zone also required a front yard of 80 feet, one side yard of 50 feet, two side yards totalling 120 feet, and a rear yard of 80 feet.
Under plaintiff's lot averaging plan, 76 wetland acres of its 570-acre parcel were dedicated to the Morris County Park Commission for park purposes and 27 acres were dedicated for road rights-of-way. The remaining 467 acres were divided into 82 lots varying in size from 2.7 acres to 22.33 acres, resulting in an arithmetical "average lot size" of about five acres.
Specifically, plaintiff's plan created 39 lots of under five acres each; two of these lots were under three acres each. The plan also created 27 lots with a width of less than 300 feet at the front setback line and three lots with a width of less than 275 feet. It created 21 lots with an inscribed circle having a diameter of less than 300 feet tangent to the front setback line, and two lots with an inscribed circle of less than 275 feet in diameter. The plan also required some variances from the zoning ordinance's side yard and rear yard requirements.
This is the procedural background. On May 18, 1987 plaintiff filed its application which was certified as complete as of July 27, 1987. The Board held public hearings in 1987 on August 25, September 8, October 13, November 10 and on December 8, when plaintiff finished its evidentiary presentation. The Board asked for an extension until January 12, 1988, which plaintiff refused. The Board then voted to deny the application "without prejudice."
On January 12, 1988 the Board described the relief sought by plaintiff as "massive in scope" and adopted a written resolution memorializing its December 8, 1987 decision. The Board noted that at the end of the December 8 meeting it had asked plaintiff to consent to an "extension of time until January 12, 1988 to
permit members of the public to be heard, there not having been sufficient time for this purpose on December 8." The Board felt that its extension request was "modest and reasonable" and that it did not constitute "undue delay." It also felt that plaintiff's refusal to grant the extension was "unreasonable" and that because of that refusal, the Board "lack[ed] sufficient information upon which to make an informed decision concerning the merit of this application." The Board denied the application without prejudice, because "further delay would result in an approval by default, by operation of law, which would be contrary to the intent of the Municipal Land Use Law and local ordinances enacted thereunder."
Plaintiff then filed a timely complaint and amended complaint in the Law Division and the Board answered. On June 7, 1988 the matter was argued and the judge rendered an oral decision granting automatic approval of the application pursuant to N.J.S.A. 40:55D-61. However, he gave the Board additional time to submit proposed "standard conditions" to be "attached to the approval" (i.e., "the standard kind of conditions that you always have in these . . . major subdivision approvals").
On June 26, 1988 the judge entered a final judgment declaring the application "approved, including the granting of all requested and necessary variances therefor." He dismissed all other claims asserted by plaintiff. On June 30, 1988 the judge held a hearing to discuss the standard conditions.
On July 28, 1988 the Board held a public meeting. It voted not to appeal the June 16, 1988 judgment and to execute a stipulation of settlement to "fully and finally conclude this matter."
On July 29, 1988 appellants and objectors, Augustus and Jane Knight, who owned property within 200 feet of plaintiff's parcel, filed their intervention motion. They sought merely to "intervene and appeal." That is, they sought intervention not to "start the process from the beginning," but only to "continue the legal process by use of appeal."
The judge denied their motion, because the "basic adjudication" was finished, and there was "nothing left to be done in the trial court." He concluded that the motion was "simply too late." On August 4, 1988, the day the motion was argued, the judge rendered an oral decision and entered an order denying it. On August 5, 1988 the objectors filed their notice of appeal from the August 4, 1988 order. On the same date objectors, by way of amended appeal, appealed the June 26, 1988 judgment.
On September 22, 1988 objectors filed a motion in this court for an order "permitting intervention on appeal." On October 28, 1988 plaintiff filed a motion for an order dismissing objectors' appeal of the June 26, 1988 judgment. On November 2, 1988 plaintiff and the Planning Board filed their stipulation of settlement which incorporated their agreed-upon approval conditions. On December 22, 1988 we denied plaintiff's motion and reserved ruling ...