Before Judges Skillman, Cuff and Winkelstein. On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-534-01.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On March 15, 2001, defendant Woolwich Township Planning Board (Board) granted final major subdivision approval to plaintiff R.J.P. Builders, Inc. (Builders) for a development project called"The Links." This approval was subject to a number of conditions, including the two conditions challenged in this appeal:
1. That the applicant complete construction and installation of the improvements required for the subdivision reflected in the cost estimate for bonding,... to the satisfaction of the Woolwich Township Engineer within 18 months from the date of adoption of this resolution.....
3. That the applicant post with the township a maintenance guarantee securing maintenance of all improvements to be constructed in the subdivision... in the amount of $62,561.88. The maintenance guarantee shall run for a term of two years from the date of acceptance of the improvements by the township.
The resolution also provided that Builders' subdivision plat would not be signed and filed with the county clerk until various conditions, including the condition three requirement of a maintenance guarantee, had been satisfied.
Builders brought this action in lieu of prerogative writs challenging conditions one and three. Builders' complaint named both the Board and the Township Committee of Woolwich as defendants.*fn1 The case was brought before the trial court on cross-motions for summary judgment. The court concluded in an oral opinion that both conditions were valid and entered judgment in the defendants' favor.
Builders appeals. We granted leave to file amicus curiae briefs to the Builders League of South Jersey, which supports Builders' position, and the New Jersey State League of Municipalities, which supports the Board's position.
We conclude that condition three, which requires Builders to provide a maintenance guarantee before filing of its subdivision plat, is valid. However, condition one, which requires Builders to complete all improvements within eighteen months of the resolution granting final subdivision approval, is invalid.
The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to 136, authorizes municipalities to obtain two types of guarantees from developers: performance and maintenance guarantees. N.J.S.A. 40:55D-53(a). The purpose of a performance guarantee is to ensure that there are sufficient funds to complete all the necessary improvements. William M. Cox & Donald M. Ross, New Jersey Zoning and Land Use Administration § 24-7 at 533 (2003). The purpose of a maintenance guarantee is to insure the completed improvements. Ibid. A maintenance guarantee may be in the form of a surety bond or cash, N.J.S.A. 40:55D-5, or an irrevocable letter of credit issued by a banking or savings institution authorized to do and doing business in this State, N.J.S.A. 40:55D-53.5.
The determination whether a municipality can require a developer to post a maintenance guarantee before recording its subdivision plat turns on the interpretation of N.J.S.A. 40:55D-53(a), which provides in pertinent part:
Before recording of final subdivision plats or as a condition of final site plan approval or as a condition to the issuance of a zoning permit pursuant to [N.J.S.A. 40:55D-65(d)], the approving authority may require and shall accept in accordance with the standards adopted by ordinance and regulations... for ...