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


July 24, 2008


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

Per curiam.


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.


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 the satisfaction of West Milford's affordable housing obligations. On December 8, 2005, the Planning Board deemed TCR's application complete.


The Planning Board considered TCR's application at a July 6, 2006 Board meeting. TCR presented four expert witnesses: (1) John Slinksi, a landscape architect; (2) Peter Black, who testified on utilities and sewage issues; (3) Chris Cirrotti, who testified as to "site civil design"; and (4) Bruce Englebaugh, an architect. As a landscape architect, Slinski testified concerning the amount of Evergreen and shade trees that TCR would plant at the site, and described the style of safety lighting that the townhouses would require.

Architect Englebaugh described the general design of the townhouses. With respect to differences between the final plan and the preliminary, he testified only as to how the aesthetics of the Valley Ridge townhouses had been modified. Engineer Black spoke to the Board with respect to sewage. Mr. Black explained the plan for sewage transport, which used a pump and facility owned by the Municipal Utilities Authority ("MUA"). This process would join an existing sewer system in a nearby development. The MUA was responsible for obtaining any easement required through condemnation of private property. TCR acknowledged the Planning Board's authority to condition approval of its application on the MUA obtaining the necessary easement.

In response to the Board's questions, Black indicated that the proposed sewer line would run approximately half a mile in length and would be required to travel uphill at one point. The Board expressed concern regarding: (1) backup plans in the event of a malfunction or power failure in the pump system; and (2) the use of a four-inch pipe to transport the sewage. According to Black, the sewage portion of the plan had not changed during the entire history of the project. TCR acknowledged, however, that it had not yet received permits from DEP approving the sewage plan.

Black also testified about the proposed project's water supply. TCR proposed to connect the Valley Ridge project's water system to that of Bald Eagle Village, a neighboring residential development, which presently had two wells with a combined capacity of 145 gallons-per-minute. The existing wells would be able to accommodate both Bald Eagle and Valley Ridge. Bald Eagle had an existing 300,000 gallon water tank. DEP and the MUA had requested that TCR dig two new 145-gallon-per-minute wells (primary and backup) to serve as an auxiliary to the existing wells. TCR proposed to build a second tank, doubling the water capacity to 600,000 gallons, and permitting the existing tank to be serviced.

In response to the Board's concern that the Bald Eagle development would not cooperate with TCR, Black indicated that the MUA held a "utilities easement" granted by Bald Eagle, which would permit the necessary access to Bald Eagle's facilities.

The Board next heard from Cirrotti, an engineer for TCR. He described the general layout and design of the Valley Ridge development, including the number of units and parking spaces, and emergency access. Cirrotti testified that TCR had reduced the area of site disturbance from the preliminary plan by two acres. Thus, while under the preliminary plan, 12.5 acres would have been disturbed, under the final plan, only 10.5 acres would be disturbed. Cirrotti also indicated that TCR was still waiting to receive the required DEP permit for Valley Ridge's access road to cross Belcher's Creek, a stream situated near the site.

At the end of TCR's presentation, the Planning Board opened the floor for comments from the public. The speakers were uniformly either opposed to the Valley Ridge project or concerned about the project's potential adverse effects on the area's water supply or quality. At the conclusion of the public comment, the Board unanimously voted to deny TCR's application.

The Planning Board memorialized its denial of TCR's application by resolution, dated July 27, 2006, which contained the following findings of fact:

(1) That the application was deemed complete by the Administrative Officer on December 11, 2005.

(2) That the application has been reviewed by the necessary Township departments and divisions.

(3) That the standards and criteria for final site plan review and approval as listed in Chapters 17-18 and 18-9 of the Codes of the Township of West Milford having been considered by the Board.

(4) That preliminary site plan approval as well as two (2) extensions thereof were previously granted.

(5) The Board having considered all of the testimony of applicant's experts and the comments of the public and having considered the criteria for design standards as set forth in the aforesaid Zoning Ordinance, and more specifically Section 18-9.16, finds that the water supply system design and sanitary sewer system do not meet the satisfaction of the Board.

(6) Accordingly, the Board determined that the final site plan should not be approved.

Pursuant to the trial court's remand order, the Planning Board revisited these findings at a Board meeting on September 28, 2006. The individual members restated their reasons for voting to deny TCR's application. Thereafter, in an October 5, 2006 resolution memorializing this discussion, the Board stated its findings of fact. The resolution reaffirmed that TCR had not allayed the Board's concerns regarding: (1) the availability of a water source for the townhouses; (2) the impact of stormwater runoff from the project; (3) the practicality of the project's sewage system; (4) whether TCR would be able to obtain an easement for running waste water to the nearby MUA facility; (5) the fact that TCR relied on tests, studies, and an environmental impact statement ("EIS") all performed approximately ten years earlier; and (6) a fifteen-year-old study that had predicted that West Milford was approaching build-out with respect to its aquifer. The Board also expressed doubt as to the candor and credibility of TCR's experts.


When the case came before the Law Division, the Planning Board and Skylands argued: (1) that TCR was required to present an updated EIS with its final site plan application; and (2) that TCR's final site plan contained material deviations from the approved 1997 preliminary site plan, specifically, the location of wells.

In rejecting these arguments, the trial court noted that the Planning Board had not required TCR to update the EIS during the application process. Regarding well placement, the court noted that:

[W]e're bound by the testimony and the record before the Board at the time it made its decision. With regard to this issue the only testimony before the Board was that the substitute well was within 100 feet of the originally proposed well and that therefore, that would require only a minor application or minor deviation from the original approval from the DEP.

There was also nothing in the record contradicting TCR's witnesses, who had testified as to the adequacy and approvals for the proposed water supply system.

The trial court gave the following explanation for reversing the Board's denial of TCR's application:

The standard of review has been established on the record. We're all in agreement with what it is. The Board must grant the approval if the final application substantially comports with any conditions that were placed on the original and provided that it comports with ordinances concerning final approval.

The first issue on environmental impact statement has been addressed. Reading the resolution most broadly, I quick say [sic] that the Board has indicated several areas where they felt that the preliminary differed from the final. I mean, reading it broadly you could say that. And those areas that had to do with the water supply system and sewage facilities basically.

I think I've already indicated in my decision concerning the wells what the situation is, that the evidence in the record clearly does not support the Board's finding, even if that was one of their findings, that there was an inadequate water supply on the record before it.

The testimony is uncontradicted. It's not inherently unreliable in any way. It incorporates testing and approvals by other agencies, which have direct responsibility for that system. And subject to any final approvals that are necessary from those agencies, I guess, it's the DEP. There's no problem there. And the Board's decision with regard to that can't be upheld.

With regard to the sewage facilities, there's been no specific arguments addressed to that point. I would indicate that the record once again indicates uncontradicted testimony concerning the area within which the applicant's project comes in terms of responsibility for sewage matters. There's an application before the DEP which concerns that issue and which awaits the resolution of this application before the Board before it can be finally addressed by the DEP.

So I can't say that any of the reasons advanced by the Board for denial are grounded in the evidence before it. And the application should have been approved. I'm going to reverse the decision of the Board. I'm going to enter a decision granting the application subject to any approvals from outside agencies which might be needed for commencement of the project.


On appeal from a decision of a trial court made in this context, we apply the same standard of review that governed at the trial level. N.Y. SMSA, L.P. v. Bd. of Adj. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004) (citing Charlie Brown of Chatham v. Bd. of Adj. of Chatham, 202 N.J. Super. 312, 321 (App. Div. 1985)). A planning board's findings of fact are entitled to substantial deference. Jock v. Zoning Bd. of Adj. of Wall, 184 N.J. 562, 597 (2005). Similarly, a board's discretionary decisions should not be overturned unless arbitrary, capricious and unreasonable. Ibid. Issues of statutory interpretation, however, including that of local ordinances, are questions of law, which we review de novo. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993).

Under the Municipal Land Use Law ("MLUL"):

The planning board shall grant final approval if the detailed drawings, specifications and estimates of the application for final approval conform to the standards established by ordinance for final approval, [and to] the conditions of preliminary approval . . . .

[N.J.S.A. 40:55D-50(a).]

Thus, if the applicant's final site plan is substantially similar to the approved preliminary plan, the planning board is bound by the MLUL to approve the final plan. Davis v. Planning Bd. of Somers Point, 327 N.J. Super. 535, 540 (App. Div. 2000). On this point, both Skylands and TCR rely on Davis, supra, and Macedonian Orthodox Church v. Planning Board of Randolph, 269 N.J. Super. 562 (App. Div. 1994).*fn2

In Macedonian Church, the applicant received preliminary conditional use approval in 1978 and built a church on the property. 269 N.J. Super. at 565. At that time, the applicant did not proceed with the construction of a 5000 square-foot community hall that the approved preliminary plan contained. Ibid. Thirteen years later, the applicant sought to build the community hall, but with substantial redesign. Ibid. The new plan called for an 11,200 square-foot structure, with nearly three times as many parking spaces, situated on a different section of the property than called for by the 1978 application. Id. at 565-66.

The planning board determined that a new conditional use application was needed. Id. at 567-68. The trial court reversed that decision. Ibid. We reversed, holding that the above-detailed changes were "substantial" and "significant," requiring a new application. Id. at 572.

In Davis, the applicant received preliminary site plan approval for an eighty-nine seat, 4200 square-foot fast food restaurant with fifty-five parking spaces. 327 N.J. Super. at 537. Six-and-a-half years later, the applicant submitted its final application, having reduced the plan to one for an eighty-four seat, 3200 square-foot restaurant with parking for thirty-seven vehicles. Id. at 538. Additionally, the final plan reduced the height of the proposed building by three feet, four inches, and added a second driveway. Ibid.

The planning board granted the final application. Id. at 538-39. Objectors challenged the approval in the Law Division, arguing that the final application differed substantially from the preliminary, denying the planning board of site plan jurisdiction. Ibid. The trial court dismissed on procedural grounds. Id. at 539. We disagreed with the trial court's procedural conclusion, but affirmed on the merits. Ibid. The panel in Davis held that the changes in the final site plan were not sufficiently substantial as to require a new application under the MLUL. Id. at 542.

Here, Skylands and TCR each argue that the differences between TCR's preliminary and final plans are factually more similar to those in either Macedonian Church or Davis, respectively. We agree with TCR's position. The Planning Board did not expressly find that the 2005 final plan differed in any respect from the 1997 preliminary. Under TCR's August 2005 amended final site plan, the project contained the following significant changes: (1) a decreased number of proposed units from 104 to 100; (2) an increased number of parking spaces from 312 to 364; and (3) a decreased percentage of impervious coverage from 20% to 17.5%. Further, the final plan reduced site disturbance by two acres: from 12.5 to 10.5.

The balance of the arguments raised by the parties lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). TCR is entitled to the relief ordered by the trial court, because its application for final site approval substantially conforms with the plan that received preliminary approval. N.J.S.A. 40:55D-50(a). We thus affirm substantially for the reasons expressed by the trial court.


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