March 23, 2009
CAROL BELL, HENRY SHERK AND THOMAS UHLAND A/K/A THE DUTCH NECK GROUP, PLAINTIFFS-APPELLANTS,
THE HOPEWELL TOWNSHIP PLANNING BOARD, THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF HOPEWELL AND SHERWOOD FOREST HOMES, LLC, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, L-250-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2008
Before Judges A. A. Rodríguez and Payne.
Plaintiffs, Carol Bell, Henry Sherk and Thomas Uhland a/k/a The Dutch Neck Group, appeal from the dismissal of their action in lieu of prerogative writs, in which they challenged a grant of site plan approval by defendant Hopewell Township Planning Board to defendant, Sherwood Forest Homes, L.L.C. (Developer), that permitted subdivision of a fifty-acre parcel of land and construction of ten homes, with a twelve-acre portion of the parcel to be donated to Hopewell Township for public recreation, as recommended by the Township's Environmental Committee. Plaintiffs claim that the agreement by the Developer to convey the land to the Township and the Township's agreement to accept that conveyance constituted an unlawful quid pro quo arrangement, and that unlawful contract zoning took place. Plaintiffs claim additionally that (1) there was no evidence that the Planning Board appropriately considered or granted bulk variances pertaining to the property; (2) the Planning Board's action violated the Township's master plan; and (3) the Planning Board's action otherwise violated the Township's zoning ordinances.
The record on appeal contains only two pages of a 127-page transcript of a hearing before the Planning Board, conducted on October 18, 2006, and six pages of an eighty-six-page transcript of a hearing before the Planning Board, conducted on December 6, 2006. It lacks copies of the Township's master plan and its ordinances as enacted.*fn1 Additionally, appellants have not supplied a copy of the site plan as initially proposed or as approved.
We understand, as the result of our review of the incomplete record in the matter, that the facts are as follows. In 2006, Developer, the contract purchaser of fifty acres of farmland adjoining the Cohansey River, known as the Adamucci tract, sought site plan approval from the Hopewell Township Planning Board for subdivision of the land into ten residential lots (nine of approximately one and one-half acres and one of more than six acres) and a thirty-four-acre deed-restricted parcel devoted to open space and an on-site stormwater collection and management basin.
The application was first reviewed by the Township's Environmental Committee, which proposed in a letter to the Planning Board of October 11, 2006, that an environmentally-sensitive portion of the thirty-four-acre lot, known to be a bald eagle foraging area bordering the Cohansey River, be conveyed by the Developer to the Township for use by the public.
On October 18, 2006, the application, together with the Environmental Committee's recommendation, was considered by the Planning Board. After a lengthy discussion of largely unknown content, the application was tabled, and revised plans of a nature that is not specified in the record on appeal were sought.
Minutes of a Township Committee meeting of November 8, 2006, suggest that the Planning Board requested the Township Committee to consider the Environmental Committee's recommendation and to determine whether it would accept the land in question. The minutes state:
The Planning Board in their review of the Application of Sherwood Forest Homes major subdivision for (10) lots in Block 78 discussed the Environmental Committee's review and recommendations. One recommendation was for the Township to take ownership of a portion of the property bordering the Cohansey River for recreation purposes. The Planning Board has requested that the Township Committee address this issue. Burt Doremus and Ken Strait of the Environmental Committee outlined the proposal to the Township Committee and explained the topics they addressed prior to making a recommendation: 1) sub-division, 2) preservation, 3) ownership of lot, 4) public access, and 5) what can be done in the future. They noted that Lot 10 is an irregular lot that holds the retention basin that will be maintained by the Homeowner's Association and the land is deed restricted. They recommended that a new subdivided lot be created, "lot 11,"*fn2 for the purpose of [a] public recreation area for wildlife observation. The Planning Board and the Developer are agreeable to the proposition.
The minutes reflect that, after an opportunity for public comment, the Committee reviewed letters of support from the New Jersey Audubon Society, the New Jersey Department of Environmental Protection's Division of Fish and Wildlife and a letter of review from the NJDEP stating that the development was not in freshwater wetlands, or in a transitional or buffer area. The Committee then passed Resolution 06-71 confirming the Township's "willingness to enter into an agreement to accept ownership" of the lot "for the purpose of recreation for the public."
On December 6, 2006, upon further consideration by the Planning Board, the proposed site plan was approved, conditioned upon subdivision of lot 11 into a deed-restricted storm water basin and lot 12 into a deed-restricted parcel to be conveyed to the Township. To permit that subdivision, the Board granted two bulk variances from frontage and building setback width requirements. No other variances were required, because the remaining plans all confirmed to the Township's zoning ordinances. The terms of the conveyance of Lot 12 were reserved for further negotiation between the Developer and the Township Committee.
The Planning Board's action was confirmed in a resolution granting preliminary major subdivision approval, dated January 17, 2007. That resolution stated:
This approval is granted subject to the following terms and conditions:
(1) that the applicant shall be and is hereby granted bulk variances with respect to the frontage and lot-width dimensions of proposed Lots No. 11 and 12, thereby permitting these lots to have a frontage dimension of 50 feet and lot-width dimensions of 200.39 feet (Lot 11) and 200.29 feet (Lot 12), respectively. By allowing lots having these sub-standard dimensions, the applicant will be able to create a parcel of land (proposed Lot No. 12) which can be dedicated and conveyed to the municipality for the purpose of affording a site for public recreation. It is the collective judgment of the Planning Board that this separate parcel of land will afford a substantial benefit to the municipality, and that granting the bulk variances associated with the parcel can be done without substantially impairing the intent and purpose of the municipality's zone plan and zoning ordinance . . . .
Plaintiffs filed their action in lieu of prerogative writs on March 5, 2007. Thereafter, the court ordered that briefs be filed by the parties that would permit a dispositive ruling on the issues raised by plaintiffs' complaint. After considering those briefs and hearing oral argument, the court, treating the parties as if they had cross-moved for summary judgment, granted judgment in defendants' favor. In doing so, the court rejected plaintiffs' argument that illegal contract zoning had occurred. Additionally the court declined to accept plaintiffs' argument that the requirement that a portion of the parcel be conveyed to the Township constituted a quid pro quo arrangement of a type found illegal in Nunziato v. Planning Bd. of the Borough of Edgewater, 225 N.J. Super. 124 (App. Div. 1998) (finding a blatant quid pro quo had been exacted from the developer as a condition to the grant of variances that was unrelated to any legitimate land use concerns generated by the development application and was arbitrary in amount). See also Marlboro v. Holmdel, 279 N.J. Super. 638 (App. Div.) (voiding developer's contribution for fire house because it was illegal, but finding the condition was not arbitrary, because it bore a reasonable relationship to municipal burdens created by the development), certif. denied, 141 N.J. 98 (1995). After discussing this precedent, the court stated:
Here, as a result of the recommendation of the Environmental Committee and the willingness of the township to accept the land, the developer benefited financially and the township accepted future on-going responsibility to maintain open spaces.
This Court believes that the developer, the township planning board and township committee all acted in good faith. The evils to be avoided in Nunziato and Marlboro simply did not occur. Common sense and good faith have made the open space available to the whole community at the expense of the whole community as represented by its governing body.
On appeal, the plaintiffs again make the quid pro quo and contract zoning arguments that were rejected by the trial court. Following our review of the record in light of applicable precedent, we conclude that those arguments are not legally supportable in the factual circumstances presented.
In Nunziato, upon which plaintiffs rely, we voided the site plan approval and variances granted to a developer of a 406-unit apartment building that were conditioned upon payment by the developer of $500 per unit to the borough's affordable housing fund. We found the evident linkage between the grant of variances and the developer's bargained-for contribution created an illegal quid pro quo and was tantamount to the sale of variances by the municipality. Thus, we found the proceedings to have been "irremediably tainted," and we set them aside. Id. at 134.*fn3
In contrast, in Marboro, as we have stated, we found two developers' contributions to the cost of a fire truck and the contribution of one developer to the cost of relocating the fire station to have been unauthorized pursuant to N.J.S.A. 40:55D-42, a statute limiting the purposes for which a developer's contribution to off-site improvements can be utilized. As a consequence of the illegality, the contribution was voided. However, we did not void the approvals as we had in Nunziato. As we stated in Marboro, we view the critical issue as whether the illegal exaction 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. [279 N.J. Super. at 643.]
We then found that the record did not establish the existence of a quid pro quo arrangement, but instead the illegal contribution "bore a reasonable relationship to the municipal burdens created by the development." Id. at 646.
In the present case, the record demonstrates that, as part of its initial site plan, the Developer proposed a thirty-four-acre, deed-restricted lot to be used for a storm water retention basin and for open space. There is no suggestion that the Developer intended to develop this particular lot. If the Developer's plan had been accepted, a homeowners' association would have taken title to the property, and would have been responsible for the cost of maintenance, thereby creating an additional expense for the ten homeowners occupying the other, developed, lots in the tract. Instead, the Township agreed to accept the land, thereby transferring both the cost and enjoyment to the Township's residents as a whole. The impetus for the Environmental Commission's recommendation that the lot be subdivided and that a portion be deeded to the Township for public use is not entirely clear. Nonetheless it is difficult to conclude that the reservation to the public of environmentally sensitive land along the Cohansey River that acted either as an eagle foraging or nesting ground, requiring buffering, lacked merit from a land use perspective. In the circumstances, both the Developer and the Township stood to benefit from the land transfer.
Moreover, the only variances required were those necessary to subdivide the existing thirty-four-acre lot. No variances were required for the homes themselves. Indeed, the development is described throughout the record as a "by-right" proposal. It thus cannot be said that the grant of variances constituted the quid pro quo for the land dedication. In sum, we perceive no legal basis for disturbing the mutually beneficial arrangement between the Township and the Developer with respect to the ownership of the land in issue.
We further reject the plaintiffs' argument that contract zoning occurred in this case. "[C]ontract zoning represents an attempt by the governing body of the municipality, by contract with a property owner, to authorize the property owner to use his property in contravention of the zoning ordinance and without compliance with the statutorily established procedures for either obtaining a zoning variance or an amendment to the master plan and zoning ordinance." William M. Cox, New Jersey Zoning and Land Use Administration, 34-8.2 at 792 (2008). Here, as we have stated, the use was permitted by the zoning code, and no variances were required except to subdivide the thirty-four acre lot so as to permit conveyance of twelve acres to the Township.
Plaintiffs have additionally claimed that "the trial court erred in granting defendants summary judgment as there was no evidence that the Planning Board appropriately granted or even considered the required variances." However, their arguments in this regard depend in large measure upon a review of the transcript of the December 6, 2006 hearing, a transcript that has not been furnished in connection with this appeal.
Plaintiffs argue as well that the "actions of the defendants violate the master plan." In support of this proposition, plaintiffs offer a letter from planner Philip Caton to the Hopewell Township Planning Board dated October 18, 2006, which commences:
We received a copy of a correspondence from the Township Environmental Commission to the Planning Board, dated October 11, 2005, regarding the above referenced subdivision application. We support the recommendations of the Environmental Commission and would like to offer the following additional comments for the Board's consideration.
The letter then continues with suggestions that would make the application more consistent with the master plan - suggestions that do not appear to have been adopted by the Planning Board, although because we lack a record of its deliberations, we cannot determine if they were discussed. We are further hampered by the absence from the record of the Environmental Commission's letter and by the absence of the master plan. As a result, we decline to address plaintiffs' arguments, finding an insufficient foundation to have been presented for reasoned analysis on our part.
As a final matter, plaintiffs argue:
As part of the developer's application, two existing roads are being widened considerably, far in excess of State Residential Site Improvement Standards. (RSIS) In addition, there is a proposed "realignment of the Sanitarium Road and Aiken Road intersection, by shifting Aiken Road to the east." This has been referred to in the record as the "new intersection." These changes, incidentally, are in addition to "such access roads as may be necessary to maintain" the detention basin . . . . In the face of an ordinance that prohibits subdivision if new roads are proposed, this project violates both the intention as well as the letter of the law expressed on the Township's own ordinance.
However, plaintiffs have neglected to specify the Residential Site Improvement Standard*fn4 that they claim has been violated. They have also failed to supply the site plan, to provide the width of the roads in question originally or as improved, and have failed to supply relevant town ordinances. Plaintiffs also claim that "certain key requirements of the Planning Board's checklist for major subdivisions were blatantly ignored by the Developer and waived by the Planning Board" but they have not supplied the checklist or any evidence that significant conditions were "ignored." We thus decline to address these arguments as well.