On appeal from Superior Court, Law Division, Bergen County.
Petrella, O'Brien and Havey. The opinion of the court was delivered by Petrella, P.J.A.D.
The River Vale Planning Board and the Mayor and Council of the Township of River Vale (collectively referred to as River Vale) appeal from a judgment of the Law Division which dismissed that portion of their complaint which had sought enforcement of a variance, site plan conditions and a developer's agreement. The judgment also dismissed cross-claims among the various defendants. Defendant Jon Jerman Holding Company, Inc. (Jerman)*fn1 was the original applicant for preliminary and final site plan approval and ancillary variances for a nonconforming property located on 3.41 acres of land on Rivervale Road in River Vale.
In the November 1988 judgment which dismissed the first and third counts of the complaint River Vale was ordered to refund a cash performance bond of $10,208 to Jerman which it had deposited with the Township. The judgment also recited that Jerman waived any claim it may have had against the Township of River Vale or its planning board for the return of an $8,575 deposit paid as reimbursement of expenses to River Vale. The allegations in other counts of the complaint were dismissed without prejudice by an agreement between the parties which was included in a "Stipulation of Settlement and Order of Dismissal" entered on November 16, 1988.
On this appeal River Vale argues that it is entitled to enforcement of the terms and conditions of a February 4, 1985 preliminary
and final site plan approval under N.J.S.A. 40:55D-18, notwithstanding that Jerman and the subsequent purchaser of the property from Jerman, E & R Office Interiors, Inc. (E & R) asserted abandonment of the benefits of the application. River Vale argues that the site plan requirements "run with the land" and bind subsequent transferees as a matter of law. It asserts that E & R had actual notice of the Developer's Agreement and waived any objection to the performance of the site plan conditions and thus became bound to perform as a matter of contract. It also argues that principles of res judicata should bind the developer and his successor in title where the attempted withdrawal is after site plan approval, after execution of the Developer's Agreement and after the posting of a cash performance bond.
Jerman applied as a contract purchaser to the River Vale Planning Board on October 24, 1984 for preliminary and final site plan approval and for certain variances with respect to a 43,200 square foot building on 3.41 acres of land at 634 Rivervale Road and located in a light industrial "D" zone. The building, which covered 29% of the land, had previously been used by a fertilizer and garden supply firm. The applicable ordinance only permitted lot coverage of 25%. Jerman sought to use the property for multi-tenant occupancy and sought a variance to permit 64 parking spaces instead of the required 108 spaces.*fn2
Hearings were held before the planning board which ultimately granted preliminary and final site plan approval on February 4, 1985, together with an ancillary variance which approved 64 parking spaces. The site plan approval was conditioned on execution of a Developer's Agreement containing a detailed schedule of site improvements, along with performance guarantees. The agreement included posting a performance
bond to insure installation of public improvements within two years at a cost of $102,088, and the posting of a cash performance bond of $10,208 with the township. Jerman entered into the agreement on March 28, 1985.
The Developer's Agreement provided in part:
WHEREAS, application for site plan approval and for a variance to allow 64 parking spaces (in lieu of the 108 required by the River Vale Zoning Ordinance) has been made by the developer for use of the premises . . . for the tenants mentioned in a resolution of approval adopted by the Planning Board on February 4, 1985; and
WHEREAS, the premises are located . . . in an industrial district, which developer proposes to convert from a single-use occupancy to multiple-use occupancy; and
WHEREAS, the BOARD on February 4, 1985, granted approval of the application subject to conditions, including conditions relating to the making of certain public and on-site improvements and the ...