On certification to the Superior Court, Appellate Division, whose opinion is reported at 261 N.J. Super. 659 (1993).
Handler, Wilentz, Clifford, Pollock, O'Hern, Garibaldi, Stein
The opinion of the court was delivered by
This case concerns the scope of the authority of municipal planning boards over subdivisions under the Municipal Land Use Law. The proposed subdivision relates to a large tract located in an environmentally-sensitive area. The appeal raises the issue of whether municipal planning boards, in deciding whether to grant an application for a preliminary major subdivision that otherwise complies with the municipal subdivision and zoning ordinances, may deny such an application based on considerations of the general welfare, the purposes of the Municipal Land Use Law, and sound planning. Because the municipality in this case later enacted an amendment to its subdivision ordinance increasing the lot-size requirements for a major subdivision, the appeal raises the additional issue of whether the subdivision application must comply with the amended ordinance.
Plaintiff, Pizzo Mantin Group, owns a seventy-nine-acre tract, which it seeks to develop. Most of the land lies in Randolph Township and is known as Block 40, Lot 4. The rest, approximately 7.5 acres designated Block 15, Lot 23, lies in Mendham Township. For purposes of this litigation, the parties have assumed that the land in Mendham Township would be annexed by Randolph Township. The property was zoned RLD-3, which requires a minimum of 80,000 square feet for lots for which public water is available. Its development requires the approval of the Planning Board of the Township of Randolph (board or planning board).
Development of the subdivision, called Wexford Chase, would require extensive soil disturbance in a sensitive area. Wexford Chase is designated as wetlands. To the north lies Dawson Brook and to the south India Brook. Those streams are classified as Fresh Water 2, Trout Production, Category I Waters by the New Jersey Department of Environmental Protection (now the Department of Environmental Protection and Energy, referred to hereafter as the DEPE). That is the highest category of clean water in the DEPE's scheme. Additionally, a central ridge runs through the center of the tract, descending north and south into the streams. Its slopes have grades from fifteen to over twenty-five percent.
As a result, development of Wexford Chase would require a substantial amount of cut and fill. The proposed road alone would require 16,550 cubic yards of cut and 8,555 cubic yards of fill, with 8,245 cubic yards of soil removed. The lots would require an additional 63,200 cubic yards of cut and 34,700 of fill, resulting in another 28,500 cubic yards of soil removed. The planning board estimated the total soil removal at 36,745 cubic yards, which is approximately 2,000 truck loads. The board's other concerns lie in the number of trees required to be removed in the course of development and in damage to the trout-production streams due to storm-water drainage.
Plaintiff originally submitted a proposal that called for variances from the minimum lot size. The planning board issued a denial on November 5, 1990. On February 4, 1991, after a series of meetings between plaintiff and the planning board's representatives, plaintiff submitted a new preliminary major subdivision plan that required no variances and met all bulk requirements. It called for thirty lots, two of which would contain detention basins. The plan included a road design specified by defendant Township's engineer, who notified the planning board that the design met basic engineering and environmental concerns. The application was followed by nine public hearings, which concluded on March 4, 1991, when the planning board voted to deny.
On April 1, 1991, the board adopted a resolution that formally rejected plaintiff's proposal. The board found that although the subdivision complied with the subdivision ordinance, and required no variances, the plan was fundamentally flawed, environmentally unsound, and unsuitable to the area as a whole. According to the board, a preliminary major subdivision could be approved under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129, only if it reflected reasonable planning. It concluded that approval of the proposed subdivision would not be consistent with the MLUL. Additionally, the board stated that plaintiff had failed to obtain the necessary DEPE permits. In actuality, on March 14, 1991, after the board's oral denial but before its formal rejection, the DEPE granted the necessary wetland permits.
Plaintiff then brought suit against the board and the Township of Randolph, alleging in part that the board's denial was arbitrary and capricious and that the actions of both the board and the Township did not conform to pertinent standards of the MLUL or applicable portions of the municipal ordinances.
The trial court ruled, in an oral opinion, that to the extent the board's denial was based on plaintiff's lack of DEPE permits, it was unjustified because plaintiff had received the required permits. However, it upheld the board's denial to the extent that it was based on the disturbance of the streams and the difficulties of the road design resulting from the soil removal. Its written opinion dismissed with prejudice all counts of the complaint relating to plaintiff's current application, but without prejudice concerning any future application by plaintiff.
The Appellate Division, disagreeing with the planning board's and trial court's grounds for denying the application, reversed and remanded the matter to the board to review the application and to make findings based on specific provisions of the municipal subdivision ordinance. 261 N.J. Super. 659.
Over one month after the Appellate Division's decision, the Township adopted Ordinance 9-93. That ordinance amended the existing ordinance and increased the minimum lot size applicable to plaintiff's tract. As a result, plaintiff filed a motion with the Appellate Division seeking to clarify the court's remand order and to preclude the application of the new ordinance to its proposed subdivision. The Appellate Division denied the motion, finding that it was premature, and remanded the matter for a determination consistent with its original opinion. In response, plaintiff filed a separate complaint in the Law Division challenging the validity of the new ordinance.
The planning board petitioned for certification. Plaintiff cross-petitioned claiming that the application should have been approved and that a remand was unnecessary and would unfairly give the board a second chance to deny the application. The court granted both the ...