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Township of West Milford Planning Board v. TCR NJ/PA Land Acquisition L.P.

July 24, 2008

TOWNSHIP OF WEST MILFORD PLANNING BOARD, PLAINTIFF-APPELLANT,
v.
TCR NJ/PA LAND ACQUISITION L.P., AND SKYLANDS CLEAN, INC., DEFENDANTS-RESPONDENTS.
TOWNSHIP OF WEST MILFORD PLANNING BOARD, PLAINTIFF-RESPONDENT,
v.
TCR NJ/PA LAND ACQUISITION L.P., DEFENDANT-RESPONDENT, AND
SKYLANDS CLEAN, INC., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1429-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 29, 2008

Before Judges Fuentes, Grall and Chambers.

Plaintiff, the Planning Board of the Township of West Milford, appeals under Docket No. A-2573-07T5 from the judgment of the Law Division reversing its denial of defendant, TCR NJ/PA Land and Acquisition, L.P.'s ("TCR"), application for final site plan approval to construct a multi-townhouse development project on a twenty-seven acre tract of land. Defendant Skylands Clean, Inc. ("Skylands"), a citizens' group objecting to TCR's application, appeals from the same judgment under Docket No. A-2587-06T5. We now consolidate these appeals and decide them here in one opinion. By leave granted, the Township of West Milford appears as amicus curiae. We affirm.

The case has an unusual procedural history. The matter first arose before the Planning Board by way of TCR's application for final site plan approval. After conducting two days of hearings, the Board resolved not to take action on the application, opting instead to file a declaratory judgment action seeking a judicial determination as to whether it had jurisdiction to grant TCR's application. In addition to TCR, the Board also named Skylands as a defendant. TCR responded and filed a counterclaim seeking final site plan approval by default.

Acting on the parties' cross-motions for partial summary judgment, the trial court dismissed the Planning Board's complaint and remanded the matter for the Board to immediately consider TCR's application for final site plan approval. Thereafter, the Board denied TCR's application at a hearing convened in response to the court's order.

By way of appeal from that decision, TCR filed a second amended counterclaim. After preliminary conferences with counsel, the trial court again remanded the matter to the Planning Board. This time, the court directed the Board to make specific findings of fact and conclusions of law in support of its decision denying TCR's application.

The Planning Board adopted a resolution memorializing its findings in support of its denial of TCR's final site plan application. The matter then returned to the court for final resolution. After considering the arguments of counsel, and reviewing the record developed before the Board, the trial court granted TCR's application for final site plan approval.

I.

In February 2004, defendant TCR purchased a twenty-seven acre parcel of real property, located in the Township of West Milford, from Valley Ridge Development Corporation ("VRDC"). As part of the sale, TCR also acquired all development approvals that VRDC had obtained regarding the property. Specifically, in February 1997, VRDC had secured preliminary site plan and variance approval for the construction of a 109-unit townhouse development.

VRDC had received two one-year extensions of its preliminary site plan approval: one in April 2000, and the second in June 2001. It filed its final site plan approval application in April 2002.*fn1 On October 23, 2002, the Planning Board denied VRDC's "requests for waiver of completeness issues," leaving its application for final site plan approval incomplete.

After acquiring title to the twenty-seven acre parcel in February 2004, TCR called the proposed development "the Valley Ridge project." According to TCR's counsel, the Planning Board attorney, the Township engineer, Township planning director, and Township planner had all assured him that the 1997 preliminary approval was still valid.

In August 2004, the Legislature passed the Highlands Water Protection and Planning Act, N.J.S.A. 13:20-1 to -35, placing the TCR property within the Act's "Preservation Area." As a result, the proposed development of the site would be statutorily barred, absent securing an exemption from the Act's provisions. Such an exemption was available to TCR, because it received preliminary site plan approval for the project prior to March 29, 2004. N.J.A.C. 7:38-2.3(a)(3)(i)(1).

Thus, in December 2004, TCR received an exemption from the Highlands Preservation Act based on the February 1997 preliminary site plan approval. The exemption would expire, however, if construction, beyond site preparation, did not commence before August 10, 2007. See N.J.A.C. 7:38-2.3(a)(3)(iv)(2).

TCR filed an amended application for final site plan approval in August 2005, with certain modifications intended to reduce the project's intensity and impact on the site. On the application form, TCR noted that the final site plan: (1) decreased the number of proposed units from 104 to 100; (2) increased the number of parking spaces from 312 to 364; and (3) decreased the percentage of impervious coverage from 20% to 17.5%. Like the preliminary plan however, TCR's application would provide eleven low and moderate-income housing units, contributing to ...


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