On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, L-2405-98.
Before Judges Stern, Lintner and Parker.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2001
On December 15, 1998, defendant, Washington Township Planning Board (Board), denied the application of plaintiff, W.L. Goodfellows and Company of Turnerville, Inc., for preliminary site plan approval, based upon plaintiff's failure to demonstrate that it had secured a drainage easement that comported with the plaintiff's own plan, and its conclusion that plaintiff did not demonstrate sufficiently that the health, safety and welfare of the surrounding properties would not be adversely affected. Plaintiff's plan incorporated a retention basin within the property's fifty-foot landscape buffer area and a drainage easement to accommodate and carry excess stormwater across the adjoining property and into a stormwater runoff system located on Ledon Lane. The Board denied the application, notwithstanding plaintiff's representations to the Board that it was in the process of negotiating with its neighbor to procure the easement. Plaintiff filed its complaint in lieu of prerogative writ in December 1998, seeking to overturn the decision of the Board and for damages for violation of its rights under 42 U.S.C. 1983 and 1988. On March 16, 1999, plaintiff purportedly entered into an agreement with the adjoining property owners for the required drainage easement. On July 9, 1999, the Law Division judge denied plaintiff's motion for summary judgment by which plaintiff sought: (1) a grant of its application for preliminary site plan approval; (2) retention of jurisdiction; and (3) a plenary hearing on plaintiff's entitlement to monetary damages on its constitutional claims. The judge then encouraged the Board to file a motion for summary judgment, which he thereafter granted by order of August 20, 1999, dismissing plaintiff's complaint.*fn1 Plaintiff filed a notice of appeal which we dismissed as interlocutory on September 14, 2000 because there remained, unresolved, a counterclaim by the Board for fees and expenses related to its review of plaintiff's application. The parties thereafter entered into a settlement of the Board's counterclaim and this appeal followed. During the pendency of this appeal, the Township of Washington, which is not a party to the within action, passed an ordinance prohibiting the existence of storm drainage facilities, including retention basins, within the fifty-foot landscape area.
On appeal plaintiff contends that the Board's denial of its application violated the provisions of N.J.S.A. 40:55D-46 and the judge erred in dismissing plaintiff's claims for damages for alleged violations of its constitutional rights. We reverse the motion judges's denial of plaintiff's motion for summary judgment and hold that, on the record before the Board, the preliminary site plan should have been granted subject to the procurement of the proposed drainage easement. The Board should determine whether plaintiff's easement comports with plaintiff's plan. We also hold that, consistent with general principles of equity and application of the time of decision rule, the provisions of N.J.S.A. 40:55D-49 should be applied and plaintiff should be afforded the benefit of the statutory protection against a change in use requirements, as if preliminary site plan approval had been granted. In light of our holding, we also reverse the motion judge's entry of summary judgment dismissing plaintiff's complaint and remand to the Law Division for further proceedings on plaintiff's claim for alleged violations of 42 U.S.C. 1983 and 1988.
The following are the facts relevant to this appeal. Plaintiff, as contract purchaser of property located in Washington Township, Gloucester County, made an application to the Board for preliminary site plan approval for the development of a restaurant. It is undisputed that plaintiff's application, as modified, did not require any variances. It was also deemed complete and satisfied all submission requirements. The application was discussed at three public hearings which were held by the Board on September 15, October 20 and November 24, 1998. At the final hearing the Board's Planner advised that the drainage plan had been revised to include an overflow drainage pipe across the lot owned by Arthur and Veronica Willet to Ledon Lane. The Planner also testified that a recorded drainage easement document should be submitted for review and should contain "a tree protection plan to protect the existing tree line between lots 5.03 and 6." At the same hearing, the Board's Engineer, Brian Peterman, was asked:
BOARD MEMBER: You've reviewed the whole drainage plan for this area?
BOARD MEMBER: Do you feel confident that it can support this additional facility that it will work?
MR. PETERMAN: Yes. The calculations provided to us show that this will work. It's not the preferred system because it's a retention as opposed to detention but it is permissible under the Township ordinance.
At the hearing on September 15, plaintiff's counsel advised the Board that he and plaintiff had discussions with Willet regarding the drainage easement, that it was "not a done deal," and that the discussions were not concluded. The Board's resolution denying plaintiff's application expresses the following specific reason for its action:
The applicant failed to demonstrate by way of credible evidence that it had secured a drainage easement which comported with its plans submitted and which would be required in order to demonstrate to the Board a properly functioning and safe detention basin for the proposed site.
In rejecting plaintiff's motion for summary judgment, the motion judge enunciated the following findings ...