On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4435-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Lihotz.
This appeal requires us to explore the application of the broad principles enunciated in Toll Bros., Inc. v. Bd. of Chosen Freeholders of Burlington County, 194 N.J. 223 (2008), and whether a developer's agreement prevents a planning board and municipality from granting relief from the terms of such agreement.
Here, plaintiff, South Brunswick Center (SBC), appeals from an order of the Law Division dismissing its complaint in lieu of prerogative writs. The trial judge upheld defendants', South Brunswick Planning Board (the Board) and the Township of South Brunswick (the Township), denial of plaintiff's request for an extension of a construction deadline of a roadway and bridge as set forth in the developer's agreement. The construction of a roadway and bridge was a condition to the preliminary approval of plaintiff's development of a parcel of land, and the subject of the developer's agreement.
These are the facts adduced from the record. SBC is the successor developer of a 413 acre tract of land located on Route One in South Brunswick (the property). On June 15, 1994, the defendants Board and Township granted preliminary subdivision approval to develop the property with waivers and design exceptions to the predecessor developers, Jersey Center/Fidoreo, Inc. (Jersey Center). When developed, the property would incorporate 6.43 million square feet of commercial office space. The resolution, including conditions imposed on the preliminary approval, was subsequently memorialized in a May 2, 1995 developer's agreement.
In 1998, plaintiff acquired Jersey Center's interest in the property, including the prior waivers, design exceptions and conditions. Included conditions required SBC to construct a four-lane divided road referred to as Northumberland Way (the Road or Northumberland Way) and "all necessary improvements in connection therewith." During construction of the Road, these "necessary improvements" included a bridge, spanning wetlands, which would operate as a thoroughfare, connecting Major Road, a public roadway in South Brunswick, with Route 1.
The developer's agreement further contained language pertaining to the Township's obligation to "acquire land necessary for construction of Northumberland Way from the southerly boundary of the Property to Major Road (the 'Northumberland Extension')." However, the agreement also stated that construction of the Road would not be excused if the Township were not able to acquire such land. Instead, "Northumberland Way shall be constructed to the southerly boundary."
Critical to the 1994 approvals was the extension of the zoning vesting period to twenty years, with the new period to end on June 14, 2014. Generally, a preliminary subdivision approval is protected from zoning changes for three years, but because of the size, complexity and cost of this project, the Board exercised its statutory authority under N.J.S.A. 40:55D-49, and granted a zoning protection of twenty years. The Board found "that a longer period of protection is both appropriate and necessary for th[e] subdivision." However, the resolution stated that the grant of this extension was contingent upon completion of two lanes of the required road "and all necessary improvements in connection therewith" by June 14, 2004, and in the event that the road was not completed by then, the zoning protection would end on that date.
Development of the property commenced in September 2003. On April 28, 2004, plaintiff, anticipating it would be unable to complete the Road by June 14, requested a two year extension for the completion of the Road. Defendants conducted a hearing in June 2004, where plaintiff provided evidence and testimony proffering "reasons justifying the request for the extension." Defendants granted plaintiff's request and amended the developer's agreement to reflect this extension. This two-year extension was also granted to the Township to acquire the Northumberland Way extension on the southerly property boundary to the Road, an acquisition that was at the discretion of the Township.
The Road itself was completed before the June 14, 2006 deadline. However, the bridge which was required to connect the Road to Route 1, was not yet completed as several bridge components had not yet arrived. Paving and curbing of the bridge had yet to be completed, as were several other construction details, comprising an eight page punchlist.
On May 9, 2006, recognizing the delay, plaintiff forwarded correspondence to the Township requesting that defendants either acknowledge that plaintiff had fulfilled the conditions of "construct[ion] of at least two (2) lanes of [the Road]... and all necessary improvements in connection" with the Road or grant an extension until December 31, 2006 to ...