August 1, 2008
HERRONTOWN WOODS CITIZENS ASSOCIATION, AN UNINCORPORATED GROUP OF PRINCETON TOWNSHIP RESIDENTS, JAN MAZZEO, PRINCIPAL OFFICER AND JAN AND ANTHONY MAZZEO, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
REGIONAL PLANNING BOARD OF PRINCETON AND LANDMARK AT PRINCETON, L.L.C., A LIMITED LIABILITY COMPANY OF NEW JERSEY, DEFENDANTS-RESPONDENTS, AND MEYERSON ASSOCIATES, A PARTNERSHIP OF THE DISTRICT OF COLUMBIA, DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-273-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 30, 2008
Before Judges Cuff, Lihotz and Simonelli.
Plaintiffs, Herrontown Woods Citizens Association, Jan Mazzeo, and Anthony Mazzeo (collectively Herrontown), filed an action in lieu of prerogative writs, challenging the conditional approval issued by defendant the Regional Planning Board of Princeton Township ("Board"), which allowed defendant Landmark at Princeton, L.L.C. ("Landmark") to develop a wooded tract of land with seven luxury, single-family residences. The trial court affirmed the Board's decision. Herrontown argues the Law Division erred in upholding the Board's delegation of various aspects of the application to township professionals and private consultants, and, further, that the delegation of authority conclusively proves the Board lacked sufficient information to reach a fair and reasonable decision on the application. Additionally, Herrontown maintains that the arrangement reached between Landmark and the Board to finance a new sewer pumping station constituted an unlawful quid pro quo. We affirm the trial court's determination, discerning no flaw in the Board's preliminary approval, except for condition fifty-one, which required an unspecified contribution to the construction of a new sewer pump station. We conclude that condition must be excised as unenforceable. Twp. of Marlboro v. Planning Bd. of Holmdel, 279 N.J. Super. 638, 643-44 (App. Div.), certif. denied, 141 N.J. 98 (1995).
Landmark submitted a preliminary major subdivision and site plan application to develop a 14.77 acre tract located in the northwest corner of Snowden Lane and Van Dyke Road in Princeton Township (Township). Landmark proposed to build-out seven lots; each would contain a single-family luxury home, and the eighth lot would serve as a stormwater retention basin. A total of 4.6 acres of the site would be deed-restricted for conservation purposes.
The overall acreage contains "ecological constraints." The site sits between Van Dyke Woods and Herrontown Park. The land is heavily wooded, although about one-third of the trees are either dead or in distress. The project will require the clearing of approximately fifty-five percent of the trees. A portion of the lost trees would be replaced by extensive replanting of canopy and understory trees. Also, to minimize tree disturbance, before building permits would be issued, the individual lot site plans will be subject to review by the Board's landscape subcommittee, the Township engineer, and the Township arborist.
The site also contains wetlands. Landmark's predecessor in interest, defendant Meyerson Associates, had obtained a Letter of Interpretation (LOI) from the Department of Environmental Protection (DEP), dated September 1, 2000, which accepted the delineation of wetlands.*fn1 Wetlands were identified in the site's northeast corner; the northern edge, which is transversed from east to west by a four-foot-wide, open water channel; larger, isolated wetlands located in the southeast corner; and the western edge of the property, which is transversed from north to south by an unnamed tributary of Harry's Brook.
The property's wetlands present a recurring problem for the Township as water often drains from the site onto Van Dyke Road, which freezes in winter weather. Landmark's stormwater management plan proposed to control the runoff through a series of drywells and an extensive detention basin, which would lessen the site discharge. Landmark's application relied upon the initial LOI, even though it had expired and represented it filed an application for extension.
The subdivision proposed to use public sewer and water. The sewer system was designed to flow by gravity from the development into the thirty-five year-old All Saints Sewer Pumping Station (ASSPS), which has the requisite capacity to handle the seven proposed homes. Despite the adequacy of its current capacity, the ASSPS has deteriorated and does not meet current DEP standards. The facility was described as "a problem waiting to happen."
Prior to public hearings on its application, Landmark met with the Princeton Sewer Operating Committee (PSOC) to discuss the working condition of the ASSPS. Landmark proposed to obtain the site plan approval and assumed design responsibility to construct a new sewer pumping station. In its discussions with the PSOC, Landmark assented to contribute two-thirds of the cost of construction.
Landmark submitted plans for the new sewer pumping station with the residential development plans. Controversy arose over the station's location, and the pumping station project was ultimately severed from the development site plan application. Landmark agreed to escrow funds for a new pumping station once the PSOC obtained site plan approval and the necessary DEP permits.
The residential development site plan conformed to all applicable municipal zoning ordinances with two exceptions: variances were needed for detention basin set backs and metal halide lighting fixtures. The plans for the non-conforming detention basin and lighting were prepared. Landmark was prepared to develop the site with fully-conforming structures, but agreed that the earthen-walled basin design and lower-level lighting fixtures fit better with the residential character of the neighborhood. Herrontown did not appeal the granted variances.
The Board held hearings on Landmark's residential development application on May 19, 2005, July 14, 2005, and September 8, 2005. Seventeen Board professionals or other advisory bodies submitted reports and provided testimony commenting on the proposed development. As the hearings progressed, Landmark revised its plan and submitted amendments for review by the appropriate municipal professionals.
Herrontown presented expert and factual testimony in support of its challenges to the development, which centered on the potential environmental disruption of a forested wildlife and wetlands area. One expert, a wetlands specialist, disputed the extent of the existing wetlands delineation in the LOI. Additionally, he opined that the tributary and wetlands were excellent wood turtle habitats.
Herrontown's other expert, a licensed planner, opined that Landmark's application was "theoretical" because it left too many unresolved issues for finalization and such a deficiency should be met with the Board's denial. He also cited the Princeton Township Land Use Code, § 10B-185 and argued a significant portion of the tract "was unsuitable for development by reason of its geology and topography or other significant natural features . . . ."
Mr. Mazzeo stated he specifically bought his home in the area because of the woods and opposed the development's anticipated deforestation. His wife expressed her concern for the displacement of wildlife caused by the development. Several public comments submitted favored or opposed the development. The Princeton Environmental Commission submitted a letter, which identified the spotting of a Cooper's Hawk on the site. Other witnesses generally discussed the existence of wildlife in the area.
At the close of the September 8, 2005 hearing, the Board voted unanimously to approve the application, subject to various identified conditions. At its December 12, 2005 meeting, the Board adopted "Findings of Fact and Conclusions of Law," granting Landmark's application for preliminary major subdivision and site plan approval with variances.
The Board concluded the "subdivision has been designed to take into account the constraints of this property" and its findings addressed the objector's concerns. For example, the Board discussed landscaping and delineated Landmark's proposed efforts to minimize tree removal by allowing review of each proposed building lot site plan by the Township engineer or arborist; reviewed the surface water drainage plan and concluded "the concerns voiced by members of the public about the impacts from this development on flooding downstream are being addressed by the applicant's design"; with regard to sewer service, the Board found "the existing pump station was adequately sized to handle the sewer flows from the proposed seven lot subdivision, together with additional properties to the north and along Snowden Lane, which could be tied into the system." On this last point, the Board stated the PSOC would go forward with plans for a new pumping station and Landmark's "commitment to build the pump station and to contribute toward the cost shall continue."
The Board's approval was subject to fifty-seven very specific conditions. Herrontown suggests that thirty-siX conditions impermissibly "delegated elements of the Planning Board's review powers to a variety of persons, committees and consultants."
The trial judge reviewed the extensive submissions and entertained lengthy argument. She rendered a twenty-six page, written opinion, dated September 27, 2006, and found the record "overwhelmingly" established more than sufficient information was before the Board to support its approval of Landmark's application. The court rejected Herrontown's argument that the delegations set forth in the approval conditions were improper and concluded it was appropriate for planning boards to delegate technical issues to their professionals. The trial judge concluded "the Board decided the feasibility of all essential elements of the plan, conditioning its approval only on review of aspects technical in nature." The court further noted that in light of the strict time constraints imposed on application review, a planning board must condition its approval upon the judgment of appropriate experts.
With regard to the sewer pumping station, the trial judge found "Landmark's contribution was not an illegal quid pro quo and does not require invalidation of the Board's approval." She reasoned the new sewer pump proposal was severed from the development application and approval was not conditioned on receiving money for the pump station. Further, she found it significant that the new pump station addressed legitimate concerns directly connected to the proposed development and concluded "Landmark's informal agreement to contribute two-thirds (2/3) of the cost of a new sewer pump station is not an illegal exaction, but instead is a good faith effort to avoid future sewage problems for the development."
"The object of site plan review is to assure compliance with the standards under the municipality's site plan and land use ordinances." Meridian Quality Care, Inc. v. Bd. of Adjustment of Wall, 355 N.J. Super. 328, 344 (App. Div. 2002). "A municipality's authority to plan and zone and, in so doing, to impose conditions on a developer, is a delegation of police power." Toll Bros., Inc. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 242 (2008).
A trial court's review of a municipal board's action on planning matters is limited to determining whether the board's decision was arbitrary, unreasonable or capricious. Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965); Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd., 343 N.J. Super. 177, 198 (App. Div. 2001); Terner v. Spyco, Inc., 226 N.J. Super. 532, 547 (App. Div. 1988). As explained by the Supreme Court in Kramer, supra:
Courts cannot substitute an independent judgment for that of the boards in areas of factual disputes; neither will they exercise anew the original jurisdiction of such boards or trespass on their administrative work. So long as the power exists to do the act complained of and there is substantial evidence to support it, the judicial branch of the government cannot interfere . . . . Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.
[45 N.J. at 296-97.]
Thus, we will "not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58-59 (1999); accord Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990). However, conclusions on matters of law are not entitled to any particular deference. Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999); Atl. Container, Inc. v. Twp. of Eagleswood Planning Bd., 321 N.J. Super. 261, 269 (App. Div. 1999). The same scope of review applies on appeal. Charlie Brown of Chatham v. Bd. of Adjustment of Chatham, 202 N.J. Super. 312, 321 (App. Div. 1985).
Herrontown first challenges what it has characterized as the Board's "unlawful delegation of decision-making" in contravention of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129. Herrontown explains: "Of the 57 [conditions] the great majority - some thirty-six (36) in all - delegate the tasks of fact finding, evaluation and decision-making to others." As a result, Herrontown argues the Board unlawfully abrogated its role to private consultants, staff members, committees, and ad hoc groups to design the development to avoid its harmful environmental impact. This argument suggests the Board's decision was not adequately supported by substantial, credible evidence to sustain its determination. We, like the trial judge, reject this argument.
Landmark's application was for a permitted use with only two minor, non-controversial variances. Thus, the Board's power of review was limited.
"The planning board's role in considering a site plan application is circumscribed." Shim v. Washington Twp. Planning Bd., 298 N.J. Super. 395, 411 (App. Div. 1997). The role of the planning board, with respect to permitted uses, is the grant or denial of site plan approval. N.J.S.A. 40:55D-37. "[S]ite plan review affords a planning board wide discretion to insure compliance with the objectives and requirements of the site plan ordinance." PRB Enters., Inc. v. S. Brunswick Planning Bd., 105 N.J. 1, 7 (1987). While site plan review gives the Board "wide discretion to assure compliance with the objectives and requirements of the site plan ordinance, it 'was never intended to include the legislative or quasi-judicial power to prohibit a permitted use.'" Ibid. (quoting Lionel's Appliance Ctr., Inc. v. Citta, 156 N.J. Super. 257, 264 (Law Div. 1978) (internal citations omitted). Generally, when the pertinent ordinance standards are met, the denial of a site plan application would be a "drastic action." Dunkin' Donuts of NJ, Inc. v. Twp. of N. Brunswick, 193 N.J. Super. 513, 515 (App. Div. 1984).
We substantially concur with the analysis set forth in the trial court's opinion on this issue. Our review satisfies us that the Board's determination was soundly grounded on the evidence adduced during the site plan hearing and it made the necessary decision of whether the application should properly be approved. The Board's findings and conclusions reviewed and approved the feasibility of Landmark's plans for site grading, conservation, landscaping, stormwater drainage, public utilities, sewage, road construction, parking, fire protection, lighting, and noise abatement. The Board did not delegate this authority to any other entity.
Further, we conclude the Board's approval was properly conditioned on Landmark's receipt of other necessary governmental approvals.*fn2 N.J.S.A. 40:55D-22b; D.L. Real Estate Holdings v. Point Pleasant Beach Planning Bd., 176 N.J. 126, 131 (2003) (a planning board may attach terms and conditions to preliminary subdivision approval, the satisfaction of which is required for final approval). "[P]reliminary approval granted subject to subsequent approval by appropriate public agencies" is clearly authorized by the MLUL. Field v. Mayor & Council of Franklin Twp., 190 N.J. Super. 326, 332 (App. Div.), certif. denied, 95 N.J. 183 (1983).
Also, the Board's determination to require its engineer to consider whether the development's details square with the approval granted, and to guide the developer as to the exact terms necessary to meet the standards was appropriate.*fn3 Stochel v. Planning Bd. of Edison Twp., 348 N.J. Super. 636, 648 n.10 (Law Div. 2002); Lionel's Appliance Ctr., supra, 156 N.J. Super. at 270. Some identified conditions require on-site inspections and most require specialized knowledge uniquely within the expertise of the engineer. Overall, the conditions requiring review by others do not require submission of additional information fundamental to the feasibility of these elements.
We concur with the trial court's determination that the conditions, which will be referred to board professionals, consultants, and advisory commissions, seek review of the very specific, technical aspects of the development plan following the Board's conclusion that all essential elements of Landmark's preliminary major subdivision and site plan application, as required by N.J.S.A. 40:55D-10 and N.J.S.A. 40:55D-22, were satisfied. See Field, supra, 190 N.J. Super. at 332 (municipality cannot guide the use and development of lands in this state if fundamental elements of a development plan are left unresolved before preliminary approval). For example, many items requiring further action addressed tree preservation on the individual lots, landscaping design, and reforestation on the proposed streets.*fn4 Other matters imposed additional conditions, with Landmark's consent, to properly promote the public health and welfare by adding a layer of protection above and beyond that required by the MLUL. The two specific conditions discussed at length by Herrontown in its merits brief, which relate to supervision of and protective measures for the blasting plan and individual lot site review to maximize tree preservation, fall into this category.
Herrontown's suggestion that any action on these conditions must be subject to "public hearings, based on sworn testimony of record and subject to the right of interested parties to hear testimony, ask questions of witnesses, cross examine witnesses and present rebuttal testimony and argument," is unfounded. We discern no reason to disturb the Board's determination on this basis.
We next turn to Herrontown's challenge related to Landmark's agreement to contribute to a new sewer pump station that would service the development, if built within five years. Herrontown characterizes this payment as a wrongful "quid pro quo" or "unlawful exaction." More specifically, Herrontown accuses Landmark of agreeing to pay two-thirds of the cost of the design and constructing a new sewer pumping station, which is not essential for the development's use, in exchange for the Board's approval of Landmark's proposed site plan.
The Board's "Findings of Fact and Conclusions of Law" state "[s]anitary sewer service will be conveyed from the site either by use of the existing pump station located near the intersection of All Saints Road and Van Dyke Road or a new pump station to be constructed near the same location." Discussion at Section (j) addressing sewer service included: "If the plans for the new pump station are approved by the Planning Board, the applicant agreed that it would obtain permit approval, construct the pump station and make a financial contribution toward it." Finally, condition fifty-one of the preliminary subdivision and site plan approval, which addressed the proposed pumping station, states:
The pump station issues were referred to the PSOC to meet with the affected neighbors and review revised plans. These revised plans for the new pump station are to be submitted for a hearing to be scheduled by the Planning Board. The applicant agreed that it would construct the pump station and in addition make a financial contribution toward it.
It is not contested that questions surrounding a new sewer pumping station were bifurcated from the development application as the PSOC had not identified a designated location or yet approved designated plans for development. The construction of a new pumping station was not integral to the development as preliminary and final approvals were based on the existing infrastructure, which could adequately service the seven proposed homes. Thus, at the time the development application was being reviewed for approval, plans for a new sewer station, for which Landmark agreed to make an unspecified financial contribution remained conceptual, and construction of a new pumping station is not required to provide sewer service to the proposed development.
N.J.S.A. 40:55D-42 authorizes municipalities, by ordinance, to require a developer, as a condition for approval of the subdivision or site plan, to pay a pro-rata share of off-site improvements necessitated by an approved site plan. The Legislature intended to require developers to contribute to the cost of off-site improvements, which become necessary as a direct consequence of the particular subdivision or development. N.J. Builders Ass'n v. Bernards Twp., 108 N.J. 223, 237 (1987).
However "[o]ur case law has been extremely sensitive to the threat presented by unlawful exactions imposed by a municipality on developers, whether the developers are reluctant or enthusiastic participants in the transaction." Swanson v. Planning Bd. of Twp. of Hopewell, 149 N.J. 59, 67 (1997) (Stein, J., concurring). Thus, a consequential relationship must exist between the "needs generated by the specific development" and the costs attributable to the developer. N.J. Builders Ass'n, supra, 108 N.J. at 228. "A municipality may only demand contributions for off-tract improvements 'that [are] necessitated by the development itself, or [are] a direct consequence of the development.'" Toll Bros., supra, 194 N.J. at 244 (quoting Holmdel Builders Ass'n v. Twp. of Holmdel, 121 N.J. 550, 571 (1990)).
We disagree with Herrontown that the record supports a conclusion that the Board was heavily influenced by Landmark's agreement to contribute a majority of the costs for replacement of the sewer pumping station and that condition fifty-one was a "bargained-for exaction." The record expresses the nexus between Landmark's development and a new sewer pumping station. Landmark's development can be serviced by but will place an added burden on the existing forty-year-old ASSPS, which the Township had started planning to replace three years earlier. The continued viable operation of that station is essential to the well-being of the Landmark homes. And, substantial evidence supported the conclusion that the existing station is deteriorating and will soon need to be replaced.
Although remarks by the developer suggest a view that Landmark's financial contribution toward this new infrastructure was intended to cast the developer in a positive light, the majority of the evidence reflects legitimate concern for the adverse impact of disrupted sewer service for these luxury homes making Landmark's participation in the cost of a new pumping station justifiable to address anticipated municipal problems attributable to the proposed development. Marlboro, supra, 279 N.J. Super. at 644.
We cannot conclude the instance presented was the type of "free-wheeling bidding" proscribed by Nunziato v. Planning Bd. of Edgewater, 225 N.J. Super. 124, 134 (App. Div. 1988). This was not an "illegal exaction [that] constitutes a blatant quid pro quo for the approval, either demanded by the municipality and acceded to by the developer or offered by the developer and accepted by the municipality in circumstances in which the exaction is unrelated to any legitimate land use concerns generated by the development application itself and the amount thereof is entirely arbitrary." Marlboro, supra, 279 N.J. Super. at 643.
Nevertheless, the Court has made clear that authorization of off-tract improvements beyond a developer's pro-rata share are impermissible under the MLUL. Toll Bros., supra, 194 N.J. at 256. So too, the Township had adopted an enabling ordinance permitting the imposition of costs for off-site improvements, that ordinance, § 10B-163, only requires a developer to pay its pro-rata share of the costs of "reasonable and necessary street improvements and water, sewerage and drainage facilities."
Here, there is no solid determination of the cost of the project. References are merely to Landmark's "contribution" and testimony related Landmark's discussion with the PSOC to contribute two-thirds of the cost. No developer's agreement was struck. Thus, the record is devoid of evidence to define Landmark's pro-rata share. "'[T]he notion of a pro-rata share mandates 'suitable cost apportionment standards' to insure that other landowners do not enjoy a free ride at the expense of another's toil.'" Toll Bros., supra, 194 N.J. at 244-45 (quoting Divan Builders, Inc. v. Planning Bd. of Wayne, 66 N.J. 582, 598 (1975)).
Further, condition fifty-one fails because it is not "'set forth with some particularity in the ordinance and [is not] limited to those permitted by the authorizing statute.'" Nunziato, supra, 225 N.J. Super. at 131 (quoting Battaglia v. Wayne Twp. Planning Bd., 98 N.J. Super. 194, 198 (App. Div. 1967)). There must be an expressed "reasonable link between the amount of the developers' 'fair share' contribution and the overall costs to be incurred by the municipality." Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment, 397 N.J. Super. 335, 361 (App. Div. 2008).
Following a review of all facts, we conclude that in an instance such as this one, where the parties have acted in good faith, the application is essentially conforming but for two minor variances, and where a new pumping station was not a necessary precondition to proceed with the development, we need not invalidate the developer's approvals on the whole. Marlboro, supra, 279 N.J. Super. at 643-44; but see Pond Run Watershed Ass'n, supra, 397 N.J. Super. at 361-62 (reversal warranted because illegal per unit exaction for improvements to a municipal park was a major factor in approval of development). The condition of the Board's approval that required Landmark to contribute to a new sewer pumping station is unlawful, unenforceable, and must be excised.
Affirmed as modified.