On certification to the Superior Court, Appellate Division, whose opinion is reported at 255 N.J. Super. 580,
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, and Stein. For reversal and reinstatement -- Justices O'Hern and Garibaldi. O'Hern, J., Dissenting.
The judgment is affirmed, substantially for the reasons expressed in the opinion of the Appellate Division, reported at 255 N.J. Super. 580, 605 A.2d 1106 (1991).
I would reverse the Appellate Division's judgment and reinstate the judgment of the Law Division. There is no legal impediment to that result. The "time-of-decision" rule is a rule of reason and Justice. There comes a time when government can no longer change the rules for land-use applicants.
This case is now almost twenty years old. I attempt herewith to draw the most salient events from the history recounted in plaintiff's brief. Although all the details may not be exactly in place, the general outline should encourage us to defer to the views of the Law Division.
Plaintiff-landowner first discussed the possibility of developing its 140-acre tract of land with municipal officials in 1973. The property is located on a slope. In 1976, plaintiff submitted an application for cluster zoning of the property, a technique that conserves land and addresses environmental concerns. It received "sketch plat" approval for 146 homes in 1977 and drew up more detailed plans that were needed for the application's formal approval.
Denville adopted its first "steep-slope" ordinance in 1979. Plaintiff sought a variance from the ordinance's terms. Five years later, in 1984, the Planning Board denied plaintiff relief from the ordinance and denied its subdivision application. Following a remand to correct a procedural deficiency, the Planning Board's decision was made final in 1985. Plaintiff sought judicial review of the municipal action. The Law Division found the steep-slope ordinance to be unconstitutional. In a February 1986 decision, the court asked that plaintiff submit a "clean, fresh application" to the Planning Board.
Plaintiff spent $50,000 on new engineering costs and resubmitted its application for approval of a subdivision of plaintiff's property into 100 single-family home lots on August 6, 1986. The previous day, however, Denville had passed a modified version of its steep-slope ordinance. After plaintiff filed a challenge to the ordinance in September 1986, Denville rezoned plaintiff's property from one acre to two acres, thus reducing the number of homes from 100 to approximately 50. The Law Division ruled on appeal in March 1987 that to apply the new steep-slope ordinance and the two-acre zoning to plaintiff's property would place an unfair burden on plaintiff. The court ordered that plaintiff's application be remanded to the Planning Board for further review.
In May 1987, the Planning Board denied plaintiff's application on the basis that the concept of "cluster zoning" was inappropriate for the site. After being denied a fair hearing on that issue, plaintiff again sought judicial review in December 1987.
In March 1988, the Law Division agreed that plaintiff had not been afforded a fair hearing on the cluster-zoning issue and remanded the matter to the Planning Board to conduct a hearing on whether cluster development was appropriate.
The Planning Board again denied plaintiff's application for cluster zoning in June 1988. The Law Division upheld that decision and directed that the Planning Board finally resolve the subdivision application without consideration of the steep-slope ordinance and two-acre zoning. Both parties appealed to the Appellate Division: plaintiff appealed the denial of its cluster-zoning application, and the municipality appealed the Law Division's decision concerning the application of the steep-slope ordinance and two-acre zoning. The Appellate Division reversed, holding that the trial court erred when it prohibited the Planning Board from requiring compliance with the steep-slope and ...