On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. HNT-L-681-00.
Before Judges Pressler, Parrillo and Coleman.
The opinion of the court was delivered by: Coleman, J.S.C. (temporarily assigned)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiffs Wendy and John Neu (Neu) are homeowners in the Township of Franklin in Hunterdon County. Their water is supplied by a well on their property. That property is 3500 feet from a proposed subdivision in the adjacent municipality of Union Township. Plaintiffs sought by action in lieu of prerogative writ to challenge the final approval of the major subdivision and site plan of a property known as Milligan Farm by defendant Planning Board of the Township of Union (the Board). Plaintiffs claim the applicants, defendant-intervenors K. Hovnanian Companies of North Central Jersey, Inc. (Hovnanian), Elizabethtown Water Co. (Elizabethtown), and Applied Wastewater Management (AWM) did not satisfy the requirements of Union Township Ordinance 99-14, which provides for certain aquifer testing and monitoring of existing wells. The trial court determined that Ordinance 99-14 did not apply to the application. Plaintiffs appeal the trial court's order granting summary judgment in favor of defendants. We affirm the order of the trial court.
On April 23, 1998, the Board granted preliminary approval of the major site plan and subdivision submitted by Hovnanian for Milligan Farm. The subdivision consisted of 292 units, 117 single family homes and 175 townhouses. The subject property comprised the entire area of the Rm-1 Multifamily District of the Township and was an integral part of the Township's housing element and Fair Share Plan which was granted substantive certification by the New Jersey Council on Affordable Housing (C.O.A.H.) The Board conducted some 24 public hearings in arriving at its preliminary approval on the project. That preliminary approval included Condition Number 14, which states: The Planning Board shall retain jurisdiction of the on-site water system proposed for the project. Any proposed use of any well on the site for other than the property owners in the project, and including any proposed interconnection with the Town of Clinton water system or diversion thereto shall not be permitted, without the prior, written agreement of the Union Township governing body and the Planning Board. The water system to be constructed on the site by the developer shall be subject to review and approval by the Township Engineer. The Township governing body shall retain jurisdiction over this matter to the extent that there are franchise or other related issues.
As had been contemplated at the time of preliminary approval, Hovnanian first sought to arrange a water connection with nearby Clinton Township. When negotiations with Clinton proved unsuccessful, Hovnanian proposed an on-site water system consisting of an elevated storage tank and associated improvements. It, therefore, applied for amended preliminary site plan approval and final site plan and major subdivision approval. That application was deemed complete by the Board on September 23, 1999.
During the next year, the Board conducted ten public hearings on the project. Concerns were repeatedly raised over the aesthetic impact of the 108 foot water tower proposed by Hovnanian and Elizabethtown, which had been granted the water franchise for the development, and over the potential for diversion of water from the tank to other developments. In consideration of those concerns, the Board commissioned an independent engineering firm to examine alternative water systems, particularly alternatives employing ground-level water tanks. That firm prepared a report, referred to as the Weston Report, dated July 12, 2000, which proposed several ground-level alternatives to the water tower. The Weston Report was made available for immediate public review. Because that availability was not sufficiently in advance of a special meeting of the Board originally scheduled for July 18, 2000, the meeting was adjourned and consideration of the Weston Report was placed on the agenda of the next regular meeting of the Board on July 27, 2000.
Prior to that date, on July 14, 2000, two representatives of Hovnanian, Joseph Riggs and Thomas Piscitelli, met with Mayor and Board member Bruce Rossi, Board Chairman Thomas Ricker and Board Engineer Robert Bogart in a diner in Union. That meeting was not subject to public notice and the meeting was not recorded. A joint statement certified by the attendees was submitted to the trial court; it indicated that the meeting involved discussions about the Weston Report and whether, based on the alternatives explored therein, the developer would utilize a ground-level water storage tank, rather than the tower it had previously proposed. *fn1 There were also discussions regarding the transfer of the water supply rights from Elizabethtown to AWM, a wholly-owned subsidiary of Elizabethtown, in order to facilitate construction of a ground- level tank.
Earlier on December 1, 1999, Municipal Ordinance No. 99-14, commonly referred to as Amendment No. 48, had been adopted; it became effective December 9, 1999. That ordinance required any major subdivision developer to test at least three wells within 500 feet of its proposed subdivision and to inventory or map all wells within 1000 feet of the subdivision. Plaintiffs contend approval of the Milligan Farm development should have been denied or withheld until Hovnanian satisfied those requirements. Hovnanian and the Board contend that Amendment No. 48 applied only to new applications and that it did not affect the Milligan Farm development. In fact, on March 9, 2000, the Township had passed Ordinance 2000-2, commonly referred to as Amendment No. 49, which officially expressed that interpretation. It states: Amendment No. 48... shall have no application and shall not control those lands as to which an application for subdivision was then pending before the Planning Board of the Township of Union, provided, however, that said application was then deemed complete in accordance with the regulations of the Planning Board of the Township of Union.
Plaintiffs, whose counsel appeared before the Board during the public hearings, nevertheless sought to have the Board require Hovnanian to comply with the testing and mapping requirements of Amendment No. 48. The Board eventually determined that the subdivision was exempt from compliance with that ordinance because of the preliminary approval granted to the subdivision prior to the adoption of Amendment 48 and because its Certification of Completeness had been issued in September 1999. *fn2 Final approval was granted on October 26, 2000 and memorialized by Resolution No. 14-99.
Plaintiffs filed their action in lieu of prerogative writ seeking to have the amended preliminary and final site plan approval declared null and void and to require that any future applications comply with Ordinance 99-14, Amendment No. 48. Plaintiff asserted two grounds for such relief: (1) that the water testing ordinance should have been applied to the subdivision, and (2) that the ex parte meeting of township officials and representatives of Hovnanian on July 14, 2000 was illegal and required nullification of the subdivision approval. The trial court, in a written opinion from which we quote at length stated:
Upon review of the record, this court finds that plaintiffs do not have standing to maintain this action as Ordinance 99-14 does not apply to the plaintiffs' property. [Recital of text of Amendment No. 49 is omitted.]
The facts of the case clearly show that at the time of the adoption of Ordinance 99-14 (or Amendment 48) on December 1, 1999, Intervenors Hovnonian (sic) and Elizabethtown Water Company had already received preliminary and final site plan and major subdivision approval on April 23, 1998. In addition, the amended application, which merely reflected the condition of reviewing any ...