On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The issue before the Court is whether the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129, authorizes a municipality to adopt a zoning ordinance that requires an applicant to seek final subdivision approval within three years of the grant of approval and any subsequent permissible extension.
In September 1994, the Borough of Point Pleasant Beach Planning Board (Planning Board) granted an application for Preliminary Major Subdivision Approval and Bulk Variances in respect of the creation of fourteen single-family lots on certain property located in the Borough of Point Pleasant Beach (Borough). Borough Ordinance 19-14.5c provides for preliminary subdivision approval for a period of three years. A corresponding section of the ordinance, section 19-14.7a, requires that an application for final approval be submitted within three years (plus approved extensions) of the grant of preliminary approval to a site plan or major subdivision.
During the three-year period following the grant of preliminary approval, the owner of the property in question did not submit either a final plat or an application for an extension of preliminary approval. Four years after the grant of preliminary approval, D.L. Real Estate Holdings, LLC (D.L.) acquired the property. About one year later, D.L. applied for final major subdivision approval. The Planning Board denied the application based on Ordinance 19-14.7a, noting in its Resolution that it was not reaching the question whether there was compliance with the substantive requirements of the preliminary subdivision approval.
D.L. filed an action in lieu of prerogative writs against the Planning Board and the Borough, contending that Ordinance 19-14.7a was invalid because the MLUL does not authorize a municipality to limit a grant of preliminary subdivision approval to three years. The parties moved for summary judgment. The trial court upheld the ordinance and dismissed the complaint, concluding that the ordinance was not inconsistent with the MLUL and that it furthered the public policy of protecting the municipality from the revival of dormant applications.
On appeal, the Appellate Division reversed, holding that a municipality may not impose an expiration dateon the grant of preliminary subdivision approval. The Appellate Division pointed to the Supreme Court's discussion of preliminary approvals in Palatine I v. Planning Board of Township of Montville in reaching its determination that the MLUL does not limit the life of preliminary subdivision approval and, therefore, an ordinance, such as the Borough's, imposing a time period for final approval submission would contradict the MLUL.
The Supreme Court granted certification.
HELD: A municipality has the authority, by fair implication of the Municipal Land Use Law, to state affirmatively that an application for final approval must be sought within three years of the grant of preliminary subdivision approval and any extensions granted beyond that initial period. The municipality's power to set the terms under which final approval must be sought is a matter of fair implication under the statutory scheme and its exercise does not impinge on any of the rights expressly conferred by the statute.
1. The MLUL authorizes a municipality to enact a master plan containing a land use element and to adopt zoning ordinances in furtherance of its plan. Under the MLUL, a municipality must promulgate ordinances that set forth provisions for the submission and processing of applications for approval. The Borough's ordinance in that respect clearly provides that no application for final approval will be accepted unless it is submitted within three years (plus extensions) of the grant of preliminary approval. The question to be answered is whether this requirement of the ordinance is inconsistent with the MLUL or tramples any right accorded under the MLUL to a developer who obtains a preliminary approval. (Pp. 5-8)
2. Pursuant to the State Constitution, municipal powers expressly conferred by the Legislature, as well as to those fairly inferred, incident or essential thereto are to be liberally construed. Accordingly, although the MLUL does not affirmatively state that a municipality may, by ordinance, set an expiration date for a preliminary approval, Ordinance 19-14.7a is well within the Borough's express and fairly implied delegated power. The ordinance does not impinge on any right conferred by statute. Moreover, the MLUL does not confer on preliminary approval a "right" to perpetual life absent a zoning change, thereby preventing a municipality from setting a time limit for final approval submission. The exercise of the Borough's municipal authority in setting a time limit for submission of final approval is not inconsistent with the MLUL, especially when it tracks the same protections given the developer under the statute's conferral of rights. The Borough's determination not to allow more is a power fairly inferred from the statutory scheme. (Pp. 8-12)
3. The Appellate Division based its determination on dicta in Palatine I. The broad language in that opinion concerning preliminary approval has served to support an interpretation of the MLUL that grants greater rights to a developer than those conferred by statute and ultimately has led to the argument advanced by D.L. here. The Court rejects that argument and to the extent that Palatine I supports a conclusion contrary to it's holding, the Court disapproves its language. (Pp.12-14)
4. The Borough's ordinance encourages developer action on preliminary approval within the three-year or extended five-year period. That time frame advances the public interest in prompt development of land in a manner consistent with the grant of preliminary approval and furthers the municipality's ability to plan effectively. (Pp. 14-16)
Judgment of the Appellate Division is REVERSED.
JUSTICE VERNIERO, dissenting, in which JUSTICES LONG and ALBIN join, is of the view that, based on the premise that the Legislature designed the MLUL to "require consistency, uniformity, and predictability in the subdivision-approval process," a better reading of the statute is that, without an explicit statutory grant of authority, municipalities cannot limit an applicant's preliminary subdivision approval in the manner sought here.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN and ZAZZALI join in JUSTICE LaVECCHIA's opinion. JUSTICE VERNIERO filed a separate dissenting opinion, in which JUSTICES LONG and ALBIN join.
The opinion of the court was delivered by: LaVECCHIA, J.
This appeal involves interpretation of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129. The question is whether the MLUL authorizes a municipality to adopt a zoning ordinance that requires an applicant to seek final subdivision approval within three years of the grant of preliminary approval and any extension thereof. We conclude that adoption of such an ordinance is a valid exercise of municipal authority, consistent with the MLUL and, therefore, reverse the contrary conclusion of the Appellate Division below.
In September, 1994, the Point Pleasant Beach Planning Board (Planning Board) granted an application for Preliminary Major Subdivision Approval and Bulk Variances involving the creation of fourteen single-family lots on property located at Block 179.02, lots 10, 11, and 12 in the Borough of Point Pleasant Beach ...