On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-394-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...