On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Coleman, J.h., Shebell and A.m. Stein. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.
This is an appeal and cross-appeal from a judgment modifying the defendant Planning Board's resolution granting plaintiff's final site plan approval. The central issue raised in the appeal and cross-appeal is whether the final approval improperly modified significant conditions specified in the preliminary site plan approval respecting off-tract improvements.
The case has an extensive procedural history. Plaintiff owns Lots 4 and 5 in Block 707 located in Teaneck, New Jersey. The appeal focuses on Lot 5 consisting of 3.8 acres which has been used as a tennis club since the 1960's. Lot 4 is improved with a vacant building. Plaintiff purchased Lots 4 and 5 in December 1986 for $3,170,000.
On January 14, 1987, plaintiff applied for preliminary site plan approval for the 3.8 acre Lot 5, on which plaintiff proposed to build a three-story building and an underground parking
garage. The first floor would consist of slightly less than 40,000 feet of retail space designed for a supermarket, and the second and third floors would have nearly 80,000 square feet of office space. At the time, the property was located in a B-1 business district. Lot 5 is located in the southeastern end of Teaneck's busy commercial district. The principal roadways providing access to the site are Cedar Lane, Windsor Road and Front Street.
On February 26, 1987, the township's planning board approved the preliminary site plan for the on-site improvements, and on May 28, 1987, the planning board approved a plan for off-tract improvements. The planning board found that the supermarket-office complex required no variances. However, neighbors challenged the approval, and the Law Division set it aside after concluding that plaintiff needed two variances. Plaintiff appealed the Law Division decision, and on December 15, 1988, the Appellate Division reversed, concluding that no variances were required. Ernst v. Tennis Club Associates, No. A-2691-87.
Plaintiff then sought final site plan approval, filing its application on February 11, 1989. On June 7, 1990, the planning board granted final site plan approval for the supermarket-office complex on Lot 5. Up to this point, plaintiff had not objected to constructing the off-tract improvements or the requirement for a developer's agreement and bond. Plaintiff did, however, inform the planning board prior to issuance of its final site plan approval resolution that it had no responsibility for acquiring any off-tract land required to make any off-tract roadway changes. Plaintiff also presented evidence to the planning board concerning the roadway design for the off-tract improvements before the final approval. The planning board imposed substantial off-tract improvements in the final site plan approval.
On July 20, 1990, plaintiff filed a verified complaint in lieu of prerogative writs which challenged the legality of several of
the conditions contained in the final site plan approval. In Count One plaintiff sought the deletion of these imposed conditions, and in Count Two plaintiff sought damages from the planning board on the ground that the planning board illegally imposed conditions that were impossible to fulfill. The planning board filed an answer on August 27, 1990. Pursuant to the pretrial order of October 17, 1990, Count Two of the complaint was severed by order dated December 10, 1990.
On May 8, 1991, the trial Judge entered judgment under Count One, deleting from the final site plan approval five conditions he found were not contained in the preliminary site plan approval. The judgment directed that plaintiff was to receive a proposed Developer's Agreement and bonding requirement from the Township of Teaneck within 30 days. The judgment also acknowledged that plaintiff's claims for damages under Count Two had been severed.
Defendant planning board has appealed, and plaintiff has cross-appealed. We granted the Township of Teaneck leave to intervene. This appeal is interlocutory because Count Two of the complaint, which seeks damages, remains undecided. Jones v. Jones, 242 N.J. Super. 195, 210, n. 2, 576 A.2d 316 (App.Div.), certif. denied, 122 N.J. 418, 585 A.2d 412 (1990); Ibberson v. Clark, 182 N.J. Super. 300, 302-03, 440 A.2d 1157 (App.Div.1982). However, we now grant leave to appeal nunc pro tunc in the interest of Justice, R. 2:4-4(b)(2), and because the claim for damages may not be well founded in view of our decision in Anastasio v. West Orange Tp. Planning Bd., 209 N.J. Super. 499, 507 A.2d 1194 (App.Div.), certif. denied, 107 N.J. 46, 526 A.2d 136 (1986).
Defendant and intervenor contend that the Law Division erred when it found that the final site plan approval improperly (1) required plaintiff to acquire privately owned and municipally owned land needed to build off-tract improvements, (2) required
plaintiff to complete off-tract improvements before commencing on-site construction, and (3) voided the preliminary site plan approval if any of the off-tract improvements were not installed.
The preliminary site plan approval respecting off-tract improvements required plaintiff to perform the following:
1. Construction of the Windsor Road extension/Cedar Lane underpass to connect with Water Street;
2. Reconstruct the intersection of Beverly Road and Windsor Road;
3. Redesign Front Street at its intersection with Cedar Lane so as to discourage and prohibit left turns from Front Street on to Cedar Lane and from Cedar Lane on to Front Street;
4. Redesign the intersection of Windsor Road and Grayson Place/Sagamore Avenue to provide two lanes on Windsor Road and westbound approaches of the intersection and a two or three phase traffic signal operation;
5. Construction of Water Street to be 40 feet wide, curb-to-curb between Conrail's right-of-way and Front Street. The property required which was owned by plaintiff was regarded as "an on-site improvement," but the property required which was not owned by plaintiff was regarded as "an off-tract improvement";
6. Construction of Alma Terrace between Chestnut Avenue and Front Street to accommodate two-way traffic flow and installation of stop signs on the east/west approaches at the cross ...