On appeal from Superior Court of New Jersey, Law Division, Burlington County, L-01801-99-PW.
Before Judges Braithwaite, Coburn and Weissbard.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendants, Burlington County, Burlington County Planning Board and Burlington County Engineering Department (collectively "the County"), appeal from that part of an order invalidating a portion of the Burlington County Land Development Review Resolution (1989 Revision) ("LDRR"). Plaintiff, Builders League of South Jersey, Inc., *fn1 cross- appeals from those portions of the same order upholding certain parts of the LDRR. We conclude that the appeals of both parties have merit and therefore reverse.
Plaintiff filed a complaint in lieu of prerogative writs challenging the validity of sections 2.01B, 2.03, 4.17, and 5.12 *fn2 of the LDRR and practices of the County that (a) establish site plan and subdivision jurisdiction over development projects; (b) mandate that preliminary approval expires after a three-year period of time; and (c) permit conditions to be added at the time of final approval where such conditions were not a part of the preliminary approval.
Recognizing that the complaint did not attack any particular action taken by the County under the LDRR, but, rather, challenged the validity of specific sections of the LDRR, the motion judge treated the complaint as one seeking a declaratory judgment. N.J.S.A. 2A:16-50 to -62. We note that the County did not challenge plaintiff's standing before the trial court, nor has it done so on appeal. See N.J.S.A. 2A:16-53; N.J. Builders Ass'n v. Mayor and Tp. Comm. of Bernards Tp., 108 N.J. 223, 227 (1987); N.J. Shore Builders Ass'n v. Tp. of South Brunswick, 325 N.J. Super. 412, 419-20 (App. Div. 1999).
Upon cross-motions for summary judgment, *fn3 the motion judge issued a letter opinion holding, in pertinent part, that: (1) the LDRR, to the extent it purports to exercise site plan or subdivision jurisdiction over applications for developments that are not along or abutting a county road or which do not affect county drainage facilities and are more than one acre in size, is invalid; (2) sections 4.17 and 5.12 of the LDRR are valid, pursuant to the authority provided to the County by the County Planning Enabling Act, N.J.S.A. 40:27-1 to -6.13; (3) the County Planning Board is authorized to impose reasonable time limits on its approvals and is authorized to impose additional conditions on subdivisions or site plans after the time limit has expired or when the applicant revises a development plan. *fn4
An order was entered which, in pertinent part, contained the following provisions:
4. The County Land Development Review Resolution to the extent that it purports to exercise jurisdiction over development applications which are not along or abut a County Road or which do not affect County drainage facilities (including ditches, swales, culverts, bridges, subsurface pipes or like natural or man-made drainage facilities) and are more than one acre in size said jurisdiction is improper.
5. Sections 4.17 and 5.12 of the Burlington County Land Development Resolutions are declared to be valid provisions and in accordance with the authority provided to the Burlington County Board of Chosen Freeholders by the Legislature through the County Planning Enabling Act.
6. The Burlington County Planning Board is authorized to impose reasonable time limits in its approvals and is authorized to impose additional conditions on subdivision or site plan after the time limit has expired or when the applicant revises the development plan.
After denial of a motion for reconsideration, the County filed this appeal challenging the court's ruling with respect to sections 2.01 and 2.03 of the LDRR and plaintiff cross-appealed with respect to the decision concerning sections 4.17 and 5.12.
We will first address the issue of site plan jurisdiction under the LDRR. The resolution provides in relevant part as follows:
2.01 Site Plans. The following site plans for land developments are subject to Planning Board review:
A. Developments which are along a county road or which affect county drainage facilities and are: i. proposed new or change in commercial use; ii. proposed new or change in industrial use; iii. proposed new or change in multi-family residential structure containing five or more units; iv. any use of property other than a single single-family residential use which includes off-street parking or the creation of an impervious surface in excess of 2,000 square feet;
B. Developments which are not along a county road which include one acre or more of new or additional impervious surface; C. Any development which will cause storm water to drain directly or indirectly to a County road or through any drainageway, culvert, pipe or facility that the County constructed or is responsible to maintain.
* * * *fn5 The motion judge said the following with respect to the provision:
In general, there is little dispute that the County may review all subdivisions and site plans wherever they are situate except those site plans under one acre in size. N.J.S.A. 40:27-6.6(e). The purpose of such a review is to give an opportunity to determine whether jurisdiction to impose conditions on the project exists. There is also little doubt that County Planning Board jurisdiction, in sharp contrast to the plenary zoning and planning authority accorded to municipalities under the MLUL, is limited depending on whether the proposed project (a) abuts a county road; or, (b) affects County drainage facilities. N.J.S.A. 40:27-6.2 and N.J.S.A. 40:27-6.6; Kode Harbor Dev. Assoc. v. Atlantic, 230 N.J. Super. 430 (App. Div. 1989); Squires Gate v. County of Monmouth, 247 N.J. Super. 1 (App. Div. 1991). Thus, to the extent that the County Resolution, Section 2.01B purports to grant jurisdiction over projects over an acre in size that do not abut a county road, it exceeds powers conferred by the Act unless the proposed project will somehow affect county drainage facilities. Because N.J.S.A. 40:27-6.6(e) declares site plans under one acre exempt, it does not follow that the County has jurisdiction over all site plans over one acre. A site plan of such size must either abut a county road or affect county drainage facilities to be subjected to County conditions of approval. Furthermore, if the only basis for county jurisdiction is the impact the project has on drainage to or from a county road or facility, then drainage controls are the only condition which may be imposed. Kode, Id.; Squires Gate, Id.
With respect to the exercise of jurisdiction over site plans and subdivisions, reflected in sections 2.01B and 2.03, the County's authority, as the motion judge recognized, can only flow from the County Planning Enabling Act, N.J.S.A. 40:27-6.1 to -6.13. As we noted in Kode Harbor Development Associates v. County of Atlantic, 230 N.J. Super. 430, 440 (App. Div. 1989), it is "well-settled that a county's powers are restricted to those ...