On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-4188-07-PW.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Fuentes and Simonelli.
The issue presented by this appeal is whether a trial court may order a planning board to grant an application for a land use approval even though the court determines that there is a substantial question concerning the validity of the part of the zoning ordinance under which that approval was sought. We conclude that if a trial court hearing an action challenging a planning board's decision on an application for a land use approval perceives a substantial question concerning the validity of the part of the zoning ordinance under which the approval was sought, the court should order the governing body's joinder in the action and determine the validity of the disputed part of the zoning ordinance before reviewing the board's decision.
Plaintiff Jackson Holdings applied to defendant Jackson Township Planning Board for preliminary major subdivision approval. Plaintiff proposed to subdivide a 303 acre tract into 493 building lots for single-family residences and four lots for storm water management ponds and open space.
Jackson Holdings' tract is located in what the Jackson Township zoning ordinance designates as the "RG-2 Regional Growth Zone." The ordinance requires a minimum lot size of 3.2 acres in this zone if a proposed residence is to be served by a standard septic system and one acre if a proposed residence is to be served by an alternate-design pilot program treatment system.
In addition, the ordinance delegates authority to the Planning Board to permit higher density residential development in any part of the zoning district served by a public sanitary sewer system. This authority is conferred by designating such higher density development as a "conditional use." Before authorizing a development under this section of the zoning ordinance, the Board must find:
(a) The proposal is not inconsistent with and will not create traffic hazards or adversely affect traffic patterns established by surrounding development; and
(b) The proposal is consistent with the intent and purpose of the Master Plan and Pinelands Comprehensive Management Plan.
If the Planning Board makes those findings and the developer utilizes "Pinelands development credits," the developer may construct up to three residences per acre on lots as small as 9,000 square feet. Jackson Holdings' subdivision application proposed to create 393 9,000 square foot building lots and 100 10,200 square foot building lots.
The Planning Board conducted a three-day hearing on Jackson Holdings' application. The primary issues addressed at the hearing were the anticipated effect of the proposed development upon traffic in the area, the alleged presence of the endangered northern pine snake on the site, and whether Jackson Holdings was required to obtain a Certificate of Filing from the Pinelands Commission confirming that the application is consistent with the Pinelands Comprehensive Management Plan.
By a resolution adopted on November 5, 2007, the Planning Board denied Jackson Holdings' application. The Board concluded that Jackson Holdings had failed to establish that its development proposal was consistent with the Pinelands Comprehensive Management Plan because it had not obtained a "consistent" Certificate of Filing from the Pinelands Commission and failed to adequately address the issue of the presence of the northern pine snake on the site. In addition, the Board found that Jackson Holdings' proposed residential development would create additional traffic hazards and adversely affect traffic patterns in the area. Thus, the Board concluded that Jackson Holdings failed to satisfy either of the previously quoted ...