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RG-2 Associates, L.L.C. v. Jackson Township Planning Board


December 4, 2009


On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-394-08.

Per curiam.


Argued November 4, 2009

Before Judges Carchman, Parrillo and Lihotz.

At issue is the authority of a Planning Board to hear and approve a land development application under a municipal ordinance that was ineffective at time of approval for want of certification from the New Jersey Pinelands Commission. Plaintiff RG-2 Associates, L.L.C. appeals from the Law Division's summary judgment dismissal of its complaint in lieu of prerogative writs challenging the Planning Board's action in vacating its prior approval of plaintiff's application and permitting the Board to reopen the matter. For the following reasons, we affirm.

Briefly by way of background, plaintiff is the owner of approximately 109 acres of property located in Jackson Township's RG-2 zone designated for regional growth. The property is comprised of six tracts of land for which plaintiff had previously received subdivision approval for approximately 150 residential lots. After receiving this approval, on March 27, 2006, the Township Council adopted Ordinance 07-06, which included Code Section 109-30, authorizing the submission of applications for general development plan (GDP) approval in accordance with the New Jersey Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. The Ordinance adopted a new zoning map, dated March 26, 2006, "to reflect the location of these new zones within the Township's Pinelands Area."

Pursuant to Section 109-30 of the Ordinance, on November 17, 2006, plaintiff applied to defendant Jackson Township Planning Board (Board) for GDP approval in order to create 193 single-family residential building lots. In accordance with N.J.S.A. 40:55D-12, plaintiff notified property owners within 200 feet of the property and published notice in the official newspaper of the Board that its application was pending.

The Board held four public hearings on plaintiff's application throughout the spring and summer of 2007. At the close of evidence on August 20, 2007, the Board voted five to three to approve plaintiff's application as satisfying the requirements of Code Section 109-30 and N.J.S.A. 40:55D-45.3, and scheduled a September 10, 2007 meeting to adopt a resolution memorializing its decision.

Prior to the scheduled session, by letter of September 6, 2007, the Pinelands Commission notified the Township that Ordinance 07-06 would require formal review and approval by the Commission pursuant to N.J.S.A. 13:18A-12. The Commission had previously received a copy of the Ordinance on May 16, 2006, but had not received a copy of the revised March 26, 2006 zoning map adopted by the Ordinance, until September 5, 2007. In any event, as a result of the Commission's correspondence, at the September 10, 2007 Board meeting, the Board voted to carry the adoption of the resolution memorializing its August 20, 2007 decision to the Board's next meeting.

At its next meeting on September 17, 2007, the Board, noting its recent discovery, voted to hold the adoption of a memorializing resolution in abeyance until the Pinelands Commission certified Ordinance 07-06. In doing so, the Board dismissed plaintiff's objection to an adjournment beyond the forty-five day statutory timeframe for the Board to act pursuant to N.J.S.A. 40:55D-10.

Thereafter, on October 11, 2007, the Pinelands Commission advertised for, noticed, and held a public hearing on Jackson Township's proposed ordinance. On October 26, 2007, the Pinelands Commission approved Ordinance 07-06 and certified its approval on November 9, 2007, concluding that the proposed ordinance was consistent with the Commission's Comprehensive Management Plan standards and not in contravention of any current zoning policy of the municipality. The Commission's certification did not alter Code Section 109-03, which was the specific provision of the ordinance pursuant to which plaintiff's GDP had been previously approved.

Following Commission certification, the matter of the adoption of a memorializing resolution was placed on the Board's December 17, 2007 agenda. In the meantime, however, the Board had received a letter, dated November 29, 2007, from the Naval Air Engineering Station in Lakehurst, advising that the military expected to significantly increase the number of aircraft operating at the station, and therefore recommended that the Board's approval of plaintiff's application be conditioned on requiring notice to prospective buyers of the proposed lots of the potential expansion of station operations. Consequently, the Board incorporated a provision in its proposed resolution to this effect. Plaintiff objected by letter of December 7, 2007, demanding that the following language be included within any resolution:

Applicant objects on the basis that the public hearing had been concluded, the draft resolution having been prepared, reviewed and consented to by the applicant and on the basis that this could not be a mandatory condition of approval. The planning board insisted that the applicant agree and the applicant granted its consent under protest and with reservation of all legal rights to contest it at some later date.

At its December 17, 2007 meeting, the Board voted to deny adoption of a memorializing resolution, vacate its prior approval, reopen hearings on plaintiff's application, and require plaintiff to re-notice for a public hearing scheduled for February 4, 2007. The Board determined that it lacked jurisdiction to conduct its earlier hearings as the ordinance upon which plaintiff sought approval was not in effect at the time. On January 7, 2008, the Board adopted a resolution memorializing its December 17, 2007 determination.

Thereafter, plaintiff filed a complaint in lieu of prerogative writs on January 24, 2008, seeking to reverse the Board's denial of a resolution memorializing its August 20, 2007 approval, and its decision to reopen the hearings on plaintiff's application. Following cross-motions for summary judgment, Judge Grasso dismissed plaintiff's complaint, holding that "the Board did not have authority to hear and consider plaintiff's application as the subject Ordinance lacked Pinelands Commission certification notwithstanding its earlier introduction and adoption by the municipality." In so holding, the judge determined "that the time of decision rule should not be applied to vest the Board with the authority to hear plaintiff's land use application under municipal ordinances that still require certifications from other State agencies, in this case the Pineland[s] Commission." He reasoned in this regard:

[Z]oning boards should not be encouraged nor permitted to hear land development applications under municipally adopted ordinances that still require approval and certification from other State agencies. First, there is no assurance that the municipal ordinance will receive approval and certification. Second, if amendments to the ordinance are recommended, it will require boards and applicants to reopen and revisit such applications consistent with the recommended standards. Such a burdensome approach would require boards, as well as applicants, to devote time and expense to hearing applications which would require further hearings if the municipal ordinance is not approved or is modified by the Pinelands Commission.

Lastly, the judge noted that although a Board generally may not rescind an action once it has been taken or reopen a hearing once completed, a Board may do so when, as here, there is mistake or inadvertence, citing Morton v. Mayor & Council of Clark, 102 N.J. Super. 84, 97-98 (Law Div. 1968), aff'd o.b., 108 N.J. Super. 74 (App. Div. 1969).

On appeal, plaintiff raises the following issues:

I. The Court Below Erred When It Determined That The Respondent Board Lacked Jurisdiction To Hear Appellant's Application And The Time Of Decision Rule Was Not Applicable To The Present Matter In Controversy.

A. The Trial Court Erred When It Determined That The Time Of Decision Rule Was Not Applicable To The Board's Review Of The Subject Application And That The Respondent Lacked Jurisdiction To Hear The Application.

B. The Trial Court Erred When It Failed To Apply The Time Of Decision Rule On Appeal.



A. There Was No Mistake Or Fraud [That] Occurred In Connection With Ordinance 07-06 That Warranted Rescission Of Appellant's Approval In Order To Reopen The Hearings On Its Application.

B. No Mistake Or Fraud Occurred That Would Permit The Board To Reopen The Hearings On Appellant's Application In Order To Receive Testimony After the Public Hearing Had Concluded.

In plaintiff's reply brief, the following issue is raised:


After consideration of these arguments, in light of the record and applicable law, we affirm substantially for the reasons stated in Judge Grasso's written opinion of January 5, 2009. We add, however, the following comments.

Counties and municipalities in the Pinelands area are required to conform master plans and zoning ordinances to the Commission's Comprehensive Management Plan and to have such plans and ordinances approved by the Commission. Gardner v. N.J. Pinelands Comm'n, 125 N.J. 193, 201-02 (1991). To that end, N.J.S.A. 13:18A-12 states:

b. After receiving and reviewing [revisions of the municipal master plan and local land use ordinances], as applicable to the development and use of land in the pinelands area, the commission shall approve, reject, or approve with conditions said revised plans and ordinances, as it deems appropriate, after public hearing, within 120 days of the date of the submission thereof. [(emphasis added).]

The implementing regulation, N.J.A.C. 7:50-3.45, provides in pertinent part:

(a) Submission: No amendments to any part of a certified municipal master plan or land use ordinance shall be effective until the municipality shall have submitted such amendment to the Commission and either the Commission has certified such amendment pursuant to N.J.A.C. 7:50-3.35, or the Executive Director has, pursuant to (b) below notified the municipality that such amendment does not affect the prior certification of the master plan or land use ordinance. [(emphasis added).]

Thus, prior to certification, an ordinance is ineffective and a planning board is without legal authority to take action pursuant to the terms of a proposed ordinance, pre-certification. See Haas v. N.J. Pinelands Comm'n, 227 N.J. Super. 313, 316 (Ch. Div. 1988) (stating that a municipality had "jurisdiction over development applications in the Pinelands" when "master plan and land use ordinances" to that effect "were certified by the Pinelands Commission"); Gardner v. N.J. Pinelands Comm'n, 227 N.J. Super. 396, 402 (Ch. Div. 1988) (noting that "the authority of municipalities located within the Pinelands to establish minimum zoning standards is for all practical purposes preempted by the Commission at least until their zoning ordinances are 'certified' by the Commission as in compliance with its minimum standards") (citing In re Madin/Lord Land Dev. Int'l., 103 N.J. 689 (1986); N.J.S.A. 13:18A-12)), aff'd, 235 N.J. Super. 382 (App. Div. 1989), aff'd, 125 N.J. 193 (1991). Here, it is undisputed that Ordinance 07-06 was certified by the Pinelands Commission on November 9, 2007, well after the Board's vote of approval on August 20, 2007. Therefore, the Board did not have the legal authority to consider or approve plaintiff's GDP application on August 20th.

Nothing in New Jersey's "time of decision" rule requires a contrary result. Under that rule, "an agency or reviewing court will apply the law in effect at the time of its decision rather than the law in effect when the issues were initially presented." Maragliano v. Land Use Bd. of Wantage, 403 N.J. Super. 80, 83 (App. Div. 2008) (citing Manalapan Realty, L.P. v. Twp. of Manalapan, 140 N.J. 366, 378-79 (1995); Riggs v. Twp. of Long Beach, 101 N.J. 515, 521 (1986), rev'd on other grounds, 109 N.J. 601 (1988)), certif. denied, 197 N.J. 476 (2009).

Thus, "[i]n the area of land use, a municipality may change its regulating ordinances after an application has been filed and even after a building permit has been issued and, as long as the applicant has not substantially relied upon the issuance of the building permit, it is subject to the amended ordinance." Burcam Corp. v. Planning Bd. of Medford, 168 N.J. Super. 508, 512 (App. Div. 1979).

In Maragliano, supra, an ordinance increasing the minimum lot size in a certain zone had been adopted by the Wantage governing body, but was not yet effective at the time the zoning board approved the defendant landowner's application for a variance from the lot width requirements under the prior zoning ordinance. 403 N.J. Super. at 81-82. We held that the defendant was subject to the new zoning ordinance that was approved before the defendant filed his application for subdivision approval, even though it became effective after the zoning board's decision. Id. at 83.

In Burcam, supra, the plaintiff developer submitted its application for site plan approval on June 10, 1977, when there was no site plan review ordinance in effect in Medford Township. 168 N.J. Super. at 511. An interim site plan ordinance was adopted on June 28, 1977, but it was not filed with the county planning board as required by N.J.S.A. 40:55D-16. Ibid. The township planning board held a public hearing on the plaintiff's application on August 22, 1977, and the site plan review ordinance was filed the following day, August 23, 1977. Ibid. Thereafter, the board adopted a resolution approving the plaintiff's site plan, but with conditions. Ibid. On appeal from the Law Division's affirmance of the Board's action, the plaintiff argued, among other things, "that since there was no valid site plan ordinance in effect at the time plaintiff filed its application, the application stands approved by operation of law." Ibid. We rejected the argument as without merit, id. at 512, finding the plaintiff's application was subject to the amended ordinance, which was in effect at time of decision. Ibid.

In neither Maragliano nor Burcam, was the land use board's authority to hear the landowner's application for subdivision or site plan approval ever in question. Rather in Maragliano, supra, the only issue was whether the landowner's variance application would be governed by the prior or recently amended zoning ordinance designating minimum lot size. 403 N.J. Super. at 81-82. And in Burcam, supra, the developer-appellant freely submitted its application for site plan approval to the township planning board, thereby acknowledging the board's authority in the matter, and the only issue was whether Board approval was automatic in the absence of any controlling ordinance. 168 N.J. Super. at 511. While acknowledging that the MLUL clearly "contemplate[s] an ordinance to govern site plan approval, N.J.S.A. 40:55D-37 and 46," we held that the planning board review and resolution was "not contingent upon municipal adoption of a review ordinance" prior to the filing of an application for site plan approval. Id. at 513. Nor did the inadvertent failure of the Board to satisfy the ministerial requirement of filing the ordinance with the county deprive the board of the authority to conduct a hearing on the plaintiff's site plan application. Id. at 511.

Here, in marked contrast, the statutory requirement of Commission certification is clearly substantive and not merely procedural in nature. Certification involves neither a perfunctory review nor a mechanical filing. Rather, the Commission is statutorily enabled to certify the ordinance, certify it with conditions or reject the ordinance. N.J.S.A. 13:18A-12. An ordinance subject to certification by the Commission is not effective until so approved and certified.

N.J.A.C. 7:50-3.35. The mere fact that Ordinance 07-06 was ultimately certified by the Commission without amendment does not alter the reality that the Board acted without legislative authorization when it approved plaintiff's GDP application based on a proposed ordinance not in effect at the time of approval. Unlike Maragliano, where the question was simply which ordinance to apply, here the Board heard and decided plaintiff's GDP application without benefit of any enabling ordinance, rendering its decision void ab initio.

The present matter is more akin to State v. Kligerman, 128 N.J. Super. 531 (Cty. Ct. 1974), where Ventnor City adopted an ordinance prohibiting parking during certain hours to allow the street sweeper to clear the streets, but did not first secure the approval of the Director of the Division of Motor Vehicles as required by statute before the ordinance became effective. Id. at 532. Finding that the ordinance concerned "traffic conditions" within the meaning of the governing statute, id. at 532-34, the court held that a conviction under the ordinance was void because the ordinance had not become effective, and was therefore invalid, at the time of the defendant's alleged violation. Id. at 534.

Nevertheless, plaintiff contends that the Law Division should have applied the time of decision rule since by then the Commission had certified Ordinance 07-06 without change, and that "further proceedings before the Board in connection with the application are unnecessary since they would be duplicative." Plaintiff relies principally on Riggs, supra, 101 N.J. at 515, which applied the time of decision rule to appellate review, requiring us "'on direct review [to] apply the statute in effect at the time of [our] decision, at least [where] the [L]egislature intended that its modification be retroactive to pending cases.'" Id. at 521 (quoting Kruvant v. Mayor & Council of Cedar Grove, 82 N.J. 435, 440 (1980)). In Riggs, the township had passed a new ordinance virtually identical to a prior ordinance while an appeal was pending from a decision of the trial court that the original ordinance was unconstitutional because it had no relation to public welfare. Id. at 518. The Court held that our remand was unwarranted where "[t]he amended ordinance merely corrected a technical inadequacy[,] the operative terms of the ordinance[] upon which [the] trial court had ruled[] remained unchanged[,]" and additional factual matters apparently were not required to be developed at trial level. Id. at 524-25.

Here, Ordinance 07-06 was not ineffective due to a mere "technical flaw," Riggs, supra, 101 N.J. at 524. Rather, the ordinance was not in effect when the plaintiff's matter was heard and decided, depriving the Board of the authority to act and rendering its decision in the matter invalid and void. As the Law Division so aptly noted, a court should not sanction or condone municipal activities in contravention of preemptive State law. This is so even where the defect is subsequently cured if the defect, as here, is substantive and implicates the very authority of the Board to act.

Plaintiff's reliance on Faulhaber v. Twp. Comm. of Howell, 274 N.J. Super. 83 (Law Div. 1994), is equally misplaced.

There, a municipality adopted an ordinance and published notice of the adoption in an official newspaper. Id. at 90. After publication, the municipality filed the ordinance with the county planning board in accordance with N.J.S.A. 40:55D-16.

Id. at 87. The plaintiff filed a prerogative writs action challenging the ordinance, but later than forty-five days from publication, contrary to Rule 4:69-6. Id. at 90. The plaintiffs argued their action was timely because, even though their writ was filed after the statutory forty-five day limit, the ordinance was not effective until filed with the planning board. Id. at 98. We rejected the argument and ruled "the publication of the notice of passage of an ordinance in the newspaper after adoption of the ordinance is designed to be a public notice to all interested parties of actions taken by the governing body." Id. at 98. Therefore, with regard to the right to sue, "[t]here is... a clear cut date when interested persons are presumed to have knowledge of the passage of the ordinance." Id. at 98-99.

The ordinance in Faulhaber, unlike Ordinance 07-06, was ineffective for a period of time due to a purely technical defect, and the ordinance merely modified the zoning classification on certain property. The planning board always retained the authority to act during the period in which the ordinance was ineffective, and when the ordinance became effective, it necessarily contained the same provisions as those originally adopted. Therefore, the purpose of the notice provisions under the MLUL was still satisfied. Here, by contrast, the Board lacked authority to hear and decide plaintiff's application because Ordinance 07-06 had not yet been certified, and might have been amended or rejected by the Commission.

In sum, the statutory requirement of Commission review and certification of Jackson Township's land use Ordinance 07-06 is substantive rather than technical in nature. As such, the failure to obtain such certification renders the proposed ordinance ineffective at time of hearing and decision and thus the Board's action thereunder is invalid and void.



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