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Swanson v. Planning Bd. of Tp. of Hopewell

April 28, 1997

RUSSELL SWANSON, LOIS SWANSON, KEN BERGER AND SUE REPKO, PLAINTIFFS-APPELLANTS, AND BENJAMIN CRANSTON, PLAINTIFF,
v.
THE PLANNING BOARD OF THE TOWNSHIP OF HOPEWELL, THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF HOPEWELL, THE MAYOR OF THE TOWNSHIP OF HOPEWELL AND THE HOPEWELL TOWNSHIP BOARD OF HEALTH, DEFENDANTS-RESPONDENTS, AND TOLL BROTHERS, INC., DEFENDANT-INTERVENOR-RESPONDENT.



Chief Justice Portiz and Justices Handler, Pollock, O'hern, Geribaldi, Stein, and Coleman join in this Order. Justice Stein has filed a separate Concurring opinion in which Justices Handler and O'hern join.

ORDER

This matter having been duly considered and the Court having determined that certification was improvidently granted;

It is ORDERED that the within appeal be and hereby is dismissed.

WITNESS, the Honorable Deborah T. Poritz, Chief Justice, at Trenton, this 28th day of April, 1997.

CHIEF JUSTICE PORTIZ and JUSTICES HANDLER, POLLOCK, O'HERN, GERIBALDI, STEIN, and COLEMAN join in this Order. JUSTICE STEIN has filed a separate Concurring opinion in which JUSTICES HANDLER and O'HERN join.

STEIN, J., Concurring

I infer that the Court's decision to dismiss this appeal primarily reflects its view that, pursuant to Rule 4:69-6, plaintiff's prerogative-writ action filed in April 1995 was instituted far too late to permit meritorious review of its challenge to a 1995 subdivision approval. That subdivision approval was inextricably related both to a zoning ordinance amendment enacted in 1990 and to an underlying 1989 agreement between the Township of Hopewell (Township) and a developer. The Court was informed at oral argument that the sewer pumping station and force main that were instrumental in the negotiation of the 1989 agreement already have been constructed by the Township, in reliance on the provisions of that agreement, as amended in 1992. Although the lower courts addressed the merits, both the Appellate Division and Law Division appeared to conclude that because of the relationship between the subdivision, the 1990 zoning ordinance amendment and the 1989 agreement, the relaxation of Rule 4:69-6 to permit plaintiff to maintain this action could not be justified.

I am in substantial agreement with that Conclusion, and therefore concur in the dismissal of this appeal. Our precedents acknowledge that in the interest of Justice, see Rule 4:69-6(c), the forty-five day period for challenging municipal action can be enlarged for good cause. See Reilly v. Brice, 109 N.J. 555, 558-61, 538 A.2d 362 (1988); Brunetti v. Borough of New Milford, 68 N.J. 576, 585-87, 350 A.2d 19 (1975). Nevertheless, despite the significant public interests that are involved, the delay of approximately five years between the amendment to the zoning ordinance and the institution of suit, combined with the municipality's construction of the pumping station and force main in reliance on the 1989 agreement, render inappropriate enlargement of the forty-five day period to an extent sufficient to permit adjudication of this appeal on its merits. See County of Ocean v. Zekaria Realty, 271 N.J. Super. 280, 287-88, 638 A.2d 859 (App. Div.), cert. denied, U.S. , 115 S. Ct. 510, 130 L. Ed. 2d 417 (1994).

However, because the underlying issue posed by this appeal presents an unsettled "question of general public importance," see R. 2:12-4, I write separately to reflect my concern about the manner in which the Township addressed its need to finance construction of the pumping station and force main. In my view, this record reflects a profoundly disturbing relationship between the Township's obligation to finance a facility to replace a failed sewer-treatment plant, a landowner's agreement to bear the entire cost of the replacement facility, and the Township's undertaking to rezone the landowner's property and approve expeditiously the subdivision of that property. Were the merits to be addressed, the critical issue would be whether the landowner's voluntary payment of the entire cost of the new pumping station and force main constituted an unlawful exaction that impermissibly tainted the zoning and subdivision approval of the landowner's property.

I

The facts are essentially undisputed. The property that is the subject of the subdivision approval and zoning ordinance amendment challenged by plaintiffs is adjacent to a development in Hopewell Township known as Princeton Farms. The Princeton Farms Development, consisting of 121 homes on mostly half-acre lots, was served by a small sewer-treatment plant that began to fail in the 1980s. Because of that failure, the Township entered into an Administrative Consent Order with the Department of Environmental Protection and Energy (DEPE) that required it to replace the sewer-treatment plant either by constructing a new plant or by demolishing the existing plant and constructing a pumping station and force main to permit the sewerage to flow to the plant operated by the Stonybrook Regional Sewerage Authority. The Township elected the latter option. A revised wastewater management plan was approved by Mercer County and DEPE. That plan contemplated the extension of the existing Princeton Farms sewer-service area to include approximately 117 acres of land owned by Suzanne Usiskin. In 1988, the Township adopted a bond ordinance that reflected its intention to levy a special assessment on all owners benefited by the pumping station and force main.

In August 1989, the Township entered into an agreement with Usiskin that was authorized by a resolution adopted at a public meeting of the Township Committee. Pursuant to that agreement, Usiskin agreed to pay all costs incurred by the Township for the construction of the pumping station and force main not to exceed $1.7 million. The Township agreed to amend its zoning ordinance to rezone Usiskin's property into an R-100 zone that permitted one residential unit for each half-acre of property, subject to the stipulation that no more than seventy units would be constructed on the entire property.

The agreement between the Township and Usiskin included a number of novel provisions. For example, paragraph 14 of the agreement, entitled "Contingencies," not only stipulated that the agreement was subject to the Township Planning Board's adoption of a resolution approving a final subdivision plan of seventy residential units and the passage of the statutory appeal period without challenge, but also included the following termination provision:

If the planing board fails to approve the Preliminary/Final Major Subdivision under current ordinance design standards, or if it conditions the approval of the Preliminary/Final Major Subdivision in a manner that would in the reasonable judgment of the Owner (i) substantially increase the project development costs above the costs anticipated from the application submission, or (ii) would unreasonably delay project implementation and completion, or (iii) otherwise unreasonably restrict ...


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