On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-631-99.
Before Judges Cuff, Wecker and Winkelstein.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal arises out of a conflict between two contemporaneous processes: a municipal land use board's adoption of a new Master Plan for the municipality and a developer's attempt to gain long-term protection from zoning changes by obtaining approval of a General Development Plan. That confluence of circumstances raises several issues, including the standard for determining that a development application is complete; the application of statutory default approval; and the time of decision rule.
Defendants Township of Eastampton Planning Board ("the Board") and Township Clerk Mary Jane Jones ("Jones") appeal from the entry of summary judgment in favor of plaintiff Eastampton Center, LLC ("ECLLC"). That judgment reversed the Board's determination that ECLLC's General Development Plan ("GDP") application was incomplete and awarded ECLLC automatic preliminary approval by default. Defendants also appeal from an order denying reconsideration.
ECLLC proposed to build 577 residential units on its property (a 25% increase in Eastampton's total housing stock), including nearly 300 single-family detached homes, and to make an additional twenty-one acres (210,000 square feet) available for commercial development. According to Eastampton Township Planner Peter Karabashian, ECLLC's plan was one of the largest projects ever proposed in Eastampton.
On appeal, defendants argue that ECLLC's complaint was untimely filed, that the Board's determination of incompleteness was neither arbitrary nor capricious, and that the Law Division judge erred in granting default approval. In addition to responding to defendants' arguments on the merits, ECLLC contends that defendants' appeal is untimely.
We have carefully reviewed the record, the briefs, and the arguments of counsel, and we are convinced that defendants' appeal was timely filed; that both default certification of the GDP application's completeness and default approval of that application were erroneously granted; and that the Board's determination that plaintiff's application was incomplete was supported by substantial credible evidence and should have been affirmed. We therefore reverse.
The material facts are not in dispute, including the procedural history, with the exception of the date on which the Board received the last item constituting part of plaintiff's application.
Since 1986, ECLLC has owned a 210-acre parcel of land located in Eastampton Township. When ECLLC purchased the parcel in 1986, it was zoned solely for agricultural use. The parcel was rezoned several times thereafter, and by 1997 it was in the Town Center Zone, where both residential and commercial uses were permitted. Notwithstanding these zoning changes, the parcel continued to be used as a farm.
In August and October 1997, a substantial number of Eastampton's approximately 6,000 residents petitioned the Eastampton Township Council (the "Council") to take action to preserve specific parcels of undeveloped land in Eastampton (but not the parcel owned by ECLLC) as open space. In response to this petition, and after reviewing state and county open space programs, in March 1998 the Council circulated a survey to all registered voters to determine support for a three-cent open space municipal tax to fund open space preservation initiatives. Approximately 84% of the responding citizens approved the proposed tax.
Based upon this response, the Council began working on zoning ordinance amendments for Eastampton, including the district in which ECLLC's property was located. However, after determining that Eastampton's existing Master Plan did not address open space and controlled growth, the Council decided to further amend the Master Plan to provide for open space before amending various portions of the zoning ordinance. The Master Plan approved in December 1998 was formally adopted by Resolution 1999-03 in January 1999. The zoning ordinance was amended in March 1999.
In 1975, as part of the MLUL, the Legislature authorized municipalities to zone for planned development districts. N.J.S.A. 40:55D-65c, enacted by L. 1975, c. 291, § 52. In 1987, the Legislature adopted the concept of a general development plan, which is defined as "a comprehensive plan for the development of a planned development," N.J.S.A. 40:55D-4, and authorized municipalities to allow "developers of projects greater than 100 acres in size to create a General Development Plan (GDP) with regard to their projects and to submit this GDP for approval to the planning board." Cox, New Jersey Zoning and Land Use Administration § 16-2.2 at 353 (2002) (hereinafter "Cox") (referring to N.J.S.A. 40:55D-45.1 and -45.2). See generally N.J.S.A. 40:55D-45.1 to -45.8, enacted by L. 1987, c. 129; see also David J. Frizell, 36 New Jersey Practice, Land Use Law §§ 15.1 to 15.10 (2d ed. 1999).
Governor Kean conditionally vetoed the original 1987 bill that provided for general development plans, S-2966/A-3685, on the ground that it was inconsistent with the MLUL by appearing to require that a municipality adopt every "complete" general development plan "regardless of what the planning board thinks about the merits of the proposed planned development and its relationship to the municipal master plan." The Governor's conditional veto message, proposing amendments to the bill, expressed the intention that "approval (for vested rights for general development plans) would be granted by the planning board consistent with the master plan and the zoning ordinance." (Emphasis added). Office of the Governor, News Release, April 27, 1987. As the Governor indicated in his recommendations, "[a] general development plan would precede preliminary subdivision plat or preliminary site plan approval and, if approved by the municipality, would have vested rights against subsequent changes in municipal ordinances." (Emphasis added).
Because this appeal arises out of the Board's determination that the application was incomplete, and plaintiff's contention that the municipality had not adopted a checklist by ordinance, see N.J.S.A. 40:55D-10.3, we must detail Eastchester's checklist requirements. N.J.S.A. 40:55D-45.2 sets forth the many items that a municipality may require as part of a general development plan: a. A general land use plan at a scale specified by ordinance indicating the tract area and general locations of the land uses to be included in the planned development. The total number of dwelling units and amount of nonresidential floor area to be provided and proposed land area to be devoted to residential and nonresidential use shall be set forth. In addition, the proposed types of nonresidential uses to be included in the planned development shall be set forth, and the land area to be occupied by each proposed use shall be estimated. The density and intensity of use of the entire planned development shall be set forth, and a residential density and a nonresidential floor area ratio shall be provided; b. A circulation plan showing the general location and types of transportation facilities, including facilities for pedestrian access, within the planned development and any proposed improvements to the existing transportation system outside the planned development; c. An open space plan showing the proposed land area and general location of parks and any other land area to be set aside for conservation and recreational purposes and a general description of improvements proposed to be made thereon, including a plan for the operation and maintenance of parks and recreational lands; d. A utility plan indicating the need for and showing the proposed location of sewage and water lines, any drainage facilities necessitated by the physical characteristics of the site, proposed methods for handling solid waste disposal, and a plan for the operation and maintenance of proposed utilities; e. A storm water management plan setting forth the proposed method of controlling and managing storm water on the site; f. An environmental inventory including a general description of the vegetation, soils, topography, geology, surface hydrology, climate and cultural resources of the site, existing man-made structures or features and the probable impact of the development on the environmental attributes of the site; g. A community facility plan indicating the scope and type of supporting community facilities which may include, but not be limited to, educational or cultural facilities, historic sites, libraries, hospitals, firehouses, and police stations; h. A housing plan outlining the number of housing units to be provided and the extent to which any housing obligation assigned to the municipality pursuant to P.L. 1985, c. 222 (C. 52:27D-301 et al.) will be fulfilled by the development; i. A local service plan indicating those public services which the applicant proposes to provide and which may include, but not be limited to, water, sewer, cable and solid waste disposal; j. A fiscal report describing the anticipated demand on municipal services to be generated by the planned development and any other financial impacts to be faced by municipalities or school districts as a result of the completion of the planned development. The fiscal report shall also include a detailed projection of property tax revenues which will accrue to the county, municipality and school district according to the timing schedule provided under subsection k. of this section, and following the completion of the planned development in its entirety; k. A proposed timing schedule in the case of a planned development whose construction is contemplated over a period of years, including any terms or conditions which are intended to protect the interests of the public and of the residents who occupy any section of the planned development prior to the completion of the development in its entirety; and l. A municipal development agreement, which shall mean a written agreement between a municipality and a developer relating to the planned development.
According to Eastampton Ordinance § 103-19(N)(1)(a), an applicant for Town Center development plan approval is required to submit a GDP which "generally" follows the "submission requirements contained in the . . . enabling statutes of the Municipal Land Use Law (MLUL)." In the Fall of 1998, when plaintiff submitted its application, the Town Center Zone in which ECLLC's property was located permitted single and multiple-family residential dwellings, business and commercial uses, supermarkets, government buildings, schools, places of worship, open space and recreational use. Ordinance §103-19 set forth the then required elements of a General Development Plan for the Town Center Zone:
M. Phasing. The village center may be developed in phases or sections based on a phasing plan to be submitted as part of the application. If any section includes modifications to the general development plan, density and/or circulation, the Planning Board may require submission of a revised general development plan (GDP) demonstrating that the overall density, land use, open space and circulation is consistent with the previously approved general development plan.
N. General development plan, preliminary and final planned village development (PVD) plan submission requirements and procedures.
(1) General development plan.
(a) The applicant for village center approval shall first submit a general development plan (GDP) for approval by the Planning Board. The GDP shall follow generally the procedures and submission requirements contained in the New Jersey enabling statutes of the Municipal Land Use Law (MLUL), and in the township ordinances. The GDP shall contain the following information:  Proposed density and intensity of uses.
 Boundary survey and description of the tract.
 Proposed land use plan including open space.  Proposed circulation plan.  Proposed open space plan, including recreation and community facilities and pedestrian walkways, and rescue squad facilities.  Utility plan, including all public services.
 Drainage plan; master stormwater management plan.
 Environmental inventory (soils, vegetation, topography, geology, surface hydrology, climate, culture/historical resources, wildlife).
 Fiscal impact report.
 General phasing plan. (b) The GDP shall be reviewed and acted upon as provided in the MLUL and in the township ordinances and as described herein and shall include reports from the township's staff, including a Traffic Engineer, Municipal Engineer, planning consultant, Fire Marshal and police.
At or about the time of the survey, Eastampton's Land Use Coordinator, Tracey Mackner, met with plaintiff's engineer, Brian Mitchell, who had been hired to prepare plans for the development of ECLLC's property. According to Mackner, she met with Mitchell on two other occasions in August 1998 to discuss the materials required to support a GDP application for develop- ment in the Town Center Zone. Mackner recalled that she provided Mitchell with a copy of Eastampton's Town Center Ordinance, § 103-19, and advised that the ordinance included a checklist of all required submissions. According to Karabashian, the list set forth in the ordinance incorporated by reference the MLUL's more detailed description of each item listed in the ordinance, and constituted Eastampton's GDP checklist. Failure to meet the checklist requirements is a ground for avoiding default certification of completeness, but only if the checklist has been adopted by ordinance. N.J.S.A. 40:55D-10.3.
On September 2, 1998, ECLLC submitted an application for GDP approval to the Board, which included: (1) the township's form application, which identified the tract and described the project in abbreviated fashion, (2) three sheets, one depicting the general lot layout, one an overall utility plan, and one a stormwater management ...