Dreier, Ashbey and Landau.
The opinion of the court was delivered by LANDAU, J.A.D.
These are cross-appeals from a judgment in the Superior Court, Law Division, entered February 4, 1989, but certified as a final judgment on May 26, 1989. R. 4:42-2. Part of the rationale for the order was contained in a letter decision dated January 17, 1989. The appeals also require reference to various administrative and legal proceedings surrounding the efforts by plaintiff-respondent/cross-appellant Lake Shore Estates, Inc. (Lake Shore) to develop an area of Denville characterized by steep and rugged topography sloping toward a lake.
The February 4, 1989 order as finally certified embodies prior interlocutory determinations made during the course of the long history of this case. Defendants-appellants/cross-respondents Denville Township Planning Board (Board), Mayor and Municipal Council of the Township of Denville, and the Township of Denville (collectively, "Denville") appeal from the determination by the trial judge that a so-called "steep slope" ordinance and a zoning ordinance which imposed two-acre minimum lot size in the zone occupied by the tract could not be applied by the Board in reviewing a preliminary subdivision proposal submitted by Lake Shore, and from the reversal of its denial of preliminary subdivision approval. Lake Shore cross-appeals from the determination to the extent that it affirmed the Board's denial of its proposal for cluster housing development. Under the February 4, 1989 order, Lake Shore can reapply for subdivision approval with further proofs.*fn1
The principal issues raised are whether the trial judge correctly refused to apply the "time of decision" rule when he considered Denville's municipal ordinances, and whether the Board acted arbitrarily in denying Lake Shore's subdivision plan which called for cluster development.
Denville and the Board argue that the most recent subdivision application by Lake Shore constituted, and was understood
to be, a new application and should be subject to all ordinances and regulations. They also say that the lands in question properly require protection under the Freshwater Wetlands Protection Act. Lake Shore disputes these contentions and argues that we should reverse the denial of cluster development.
On August 19, 1976, Lake Shore applied to the Board for sketch plat approval of a proposed subdivision for its 170.8 acre tract. In November 1977, the Board approved Lake Shore's "sketch plat concept" for a proposed subdivision which then utilized an "open space," i.e., cluster, design.
In June 1979, Lake Shore submitted an application to the Board for preliminary major subdivision approval, predicated upon a cluster zone plan. One month later, Denville adopted a land use ordinance entitled "Development Regulations Within Areas of Steep Slopes." In January 1980, responding to the adoption of this ordinance, Lake Shore submitted a supplemental application to the Board which included a request for variance from the recently-adopted steep slope ordinance.
After several public hearings, the Board adopted a resolution on March 22, 1984, which denied both preliminary major subdivision approval and the variance request. Lake Shore filed a complaint in lieu of prerogative writs, seeking to reverse the Board's decision. It asserted that the steep slope ordinance was unconstitutional.
On February 7, 1985, a Law Division judge found that the Board's determination was procedurally flawed and remanded the matter to the Board with a direction that each Board member must review the transcripts of any meeting that the member failed to attend and that the Board then vote again regarding the subdivision appeal.
The Board again adopted a resolution which denied the application for preliminary major subdivision approval and the variance request. Lake Shore sought to reverse by filing another complaint in lieu of prerogative writs, asserting arbitrariness of the Board's decision and a declaration that the steep slope ordinance was unconstitutional.
Following trial in February 1986, the present trial judge found that Denville's steep slope ordinance was unconstitutional and invalid. As Lake Shore's preliminary major subdivision application had been considered by the Board under that steep slope ordinance, the Board's denial of the subdivision proposal thereunder was deemed a nullity.
It was suggested that Lake Shore could submit a new application to the Board, to be considered on its merits. The oral decision was embodied in a judgment dated March 17, 1986, which provided that in the event Denville adopted a new ordinance, Lake Shore could, on motion, challenge the ordinance "or the effect such ordinance shall have on any future or pending application submitted by plaintiff for preliminary subdivision approval."
On August 6, 1986, Lake Shore once again applied to the Board for preliminary major subdivision approval. On the previous day, August 5, 1986, Denville had adopted a modified version of the former steep slope ordinance. On September 17, 1986, Lake Shore filed a complaint in lieu of prerogative writs challenging the constitutionality of Denville's 1986 steep slope ordinance.
In addition, while the subdivision application was pending, Denville adopted Ordinance No. 27-86 on October 7, 1986, rezoning the subject property and others into an R-1B-Residential District, which increased minimum lot size from 40,250 square feet to two acres. This drastically lessened the number of potentially buildable lots on Lake Shore's property.
Lake Shore moved, as permitted by the previous judgment dated March 17, 1986, seeking a determination that the new steep slope ordinance and the two-acre ordinance should not be applied to its pending preliminary major subdivision application. Lake ...