On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6947-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez, Sabatino and Ashrafi.
This complex land use dispute returns on an appeal by a developer contesting the trial court's rulings in the aftermath of our October 2007 opinion remanding the case and directing further proceedings before the Old Bridge Township Planning Board ("the Planning Board"). See Alfieri-Old Bridge Assocs., LLC v. Bd. of Adjustment, No. A-1644-06 (App. Div. Oct. 29, 2007). In particular, plaintiff, the developer of a large multi-use project in Old Bridge Township ("the Township"), appeals from various aspects of the trial court's November 19, 2010 order concerning the "staging" of its project and other issues. For the reasons that follow, we affirm the trial court's order, albeit for slightly different reasons than those expressed by the trial judge. We also remand this matter back to the trial court to address certain unresolved issues.
Much of the extensive factual and procedural chronology of this long-standing matter is detailed in our October 2007 opinion and need not be repeated in full here. We briefly summarize that prior history, updating it with an account of the additional proceedings that took place before the Planning Board in 2008 and 2009 and before the trial court in 2010.
Plaintiff, Alfieri-Old Bridge Associates, LLC ("Alfieri"), is the developer of a 139-acre parcel in the Township, located by Exit 120 of the Garden State Parkway ("the Parkway"). Alfieri's predecessor-in-title, Edward J. Rondinelli, also a developer, applied to the Township's Board of Adjustment in 1985 for approval of a general development plan ("GDP") for the site. Rondinelli's GDP application initially called for 1.7 million square feet of office and research space, 250 to 350 hotel rooms, convention space, and 400 dwelling units. The proposed dwellings would be a mix of townhouses, duplexes, and four-unit and eight-unit residential dwellings. Rondinelli intended to call the development "Metropark South."
After two public hearings, the Board of Adjustment approved the GDP in September 1985 and granted Rondinelli certain variances. Most importantly for purposes of the present appeal, the Board of Adjustment granted defendant a waiver of the so-called "staging" requirements for GDPs set forth in the Township's zoning ordinances. Those staging requirements generally require both the residential and commercial components in a GDP to proceed simultaneously. The effect of the staging waiver was to allow the developer to build approximately 400 townhouses first (on what became known as the "Bridgepointe" project) before starting construction on the anticipated office and hotel buildings. In granting that staging waiver in 1985, the Board of Adjustment took into account that the developer was constructing two other office buildings, "Atrium I" and "Atrium II," on a site in the Township near the GDP parcel.
The Board of Adjustment concluded in 1985 that "special reasons" were present to justify the requested variances, including, among other things, the fact that "the area is too difficult and expensive to develop under strict compliance with the requirements of the [GDP] Ordinance due to topographical and other conditions including prior dumping of refuse and mining operations." The Board of Adjustment also took into account the then-existing economic conditions that made the office buildings, despite the tax ratables they would produce for the Township, more difficult to market at that time than the residential townhouses.
In November 1987, the Board of Adjustment issued a second resolution concerning the project. That resolution specifically provided that the previously-issued GDP would be vested for twenty years, calculated from the date of the original resolution on September 5, 1985. This vesting language was inserted to correct what was described as an "oversight" in the original resolution.
In April 1989, the Board of Adjustment granted Rondinelli approval to amend the 1985 GDP in various respects. The modifications included a relocation of certain townhouse units because of wetland requirements enforced by the Department of Environmental Protection ("DEP"). The Board of Adjustment also approved the deletion of a commuter rail station as well as the elimination of a direct roadway connection to the Garden State Parkway, again because of wetland mitigation concerns.
In 1993, Rondinelli presented the Board of Adjustment with a modified version of the GDP, seeking several additional variances. The 1993 Amended GDP included a proposal to construct 155 single-family homes (referred to as the "Canterbury Cove" project). Rondinelli also agreed to build
1.69 million square feet of commercial/industrial buildings on the site (including what was known as the "Esplanade"), subject to market conditions. After additional hearings, the Board of Adjustment approved these changes in a resolution issued in October 1994.
Alfieri purchased the property from Rondinelli in 1998. Thereafter,
the Board of Adjustment adopted the legal position that it never had
the authority to approve the GDP in the first place and that it would
no longer review further applications by the developer to modify or to
extend the GDP. Hence, when Alfieri filed three Preliminary
Subdivision and Site Plan
Approval requests between June 2003 and April 2005,*fn1
the Board of Adjustment declined to act upon them. Alfieri
filed an action in lieu of prerogative writs in May 2006 in the Law
Division, seeking to compel the Board of Adjustment to act upon those
The Law Division judge who was then handling the matter granted Alfieri's motion for a remand. The judge concluded that the Board of Adjustment did, in fact, possess jurisdiction under the then-existing version of the Municipal Land Use Law, currently N.J.S.A. 40:55D-1 to -163 ("MLUL"), to approve the GDP in 1985 and that the Board of Adjustment continued to have such jurisdiction. An appeal of that ruling ensued. In the meantime, the matter was remanded to the Board of Adjustment.
Following the remand, the Board of Adjustment initially considered Alfieri's pending applications in May 2007. At the conclusion of those hearings, the Board of Adjustment declined to extend Alfieri's vested rights period and deemed the 1993 Amended GDP as expired. The Board of Adjustment's resolution recited that the pending applications represented a "material change" to the 1993 Amended GDP, also noting that there were still unresolved environmental and roadway issues for the project.*fn2
Alfieri filed an order to show cause and a verified complaint in the Law Division in August 2007, challenging the Board of Adjustment's decision not to extend the vested rights period. While that complaint was pending, on October 29, 2007, we issued an unpublished opinion affirming the trial court's jurisdictional decision in the prior litigation, with certain modifications. See Alfieri-Old Bridge Assocs., supra, slip op. at 20-22.
In our October 2007 opinion, we noted that the Board of Adjustment was no longer seeking a judicial nullification of its past approvals of the GDP and related variances. Id., slip op. at 9. Instead, the Board of Adjustment sought a ruling that all pending and future applications concerning the site should be presented to the Township's Planning Board. Ibid. We held that "the Board of Adjustment had the legal authority under the Township's [ordinance] and also under the then-existing provisions of the MLUL to grant the property owner a use variance in April 1985 and approval of the GDP, as it was conceptually presented, in September 1985," and that the doctrine of ultra vires was not applicable. Id., slip op. at 17. However, given the subsequent adoption of N.J.S.A. 40:55D-45.1, in May 1987, entrusting the approval of GDPs to planning boards and not to boards of adjustment, we ruled that, on remand, the merits of Alfieri's unresolved applications should be decided by the Planning Board, not by the Board of Adjustment. Id., slip op. at 20-22.
In remanding this matter, we provided specific instructions with respect to the legal treatment of prior approvals obtained by the developer from the Board of Adjustment, stating:
We therefore modify the Law Division judge's determination to provide that Alfieri's undecided and complete site plan applications, and any other future site plan applications, arising out of or connected to the GDP, shall be heard by the Old Bridge Planning Board. We do so on the strict condition that the Planning Board may not nullify the GDP itself, nor the variances and other approvals already issued by the Board of Adjustment, unless the site owner or developer seeks their modification. We further instruct that the Planning Board address, expeditiously, Alfieri's three unheard site plan applications. This dispute has festered long enough over jurisdictional disagreements, and it is time for the open applications to be considered by the municipality on their merits, with dispatch.
[Id., slip op. at 21-22 (emphasis added).]
Given the inadequate record before us, we declined to resolve the vested-rights question, i.e., "whether an additional extension of the GDP from its already extended date of March 2, 2006 to November 12, 2007 should or should not be authorized[.]" Id., slip op. at 20. We instead directed that the propriety of such an extension should be addressed first at the municipal level. Ibid. We also made the following observations:
We were informed at oral argument that since the time of the trial court's October 2006 order, the Board of Adjustment denied an extension request by [plaintiff], and that denial triggered an order to show cause filed by [plaintiff] in the Law Division, the outcome of which was undetermined as of the time this case was argued before us. Because those proceedings are not in the record, we do not address the merits of that decision. Nor do we address the related question of whether the maximum twenty-year vesting period under N.J.S.A. 40:55D-45.1 should be equitably tolled here because of the time the parties have spent litigating jurisdictional issues. If the Law Division judge remands the GDP extension issue back to the municipality, or has already done so, such remanded proceedings should be conducted before the Planning Board rather than the Board of Adjustment, consistent with our general prospective determination that jurisdiction should now lie in the Planning Board. [Id., slip op. at 20 n.6 (emphasis added).]
In January 2008, the trial court held a case management conference to develop the process for implementing our October 2007 remand. As a result of that conference, the parties entered into a consent order, which provided that the matter would be remanded to the Planning Board and that the Planning Board "shall grant or deny" the developer's applications "not later than 120 days from the entry of the [consent order] or such extended period as may be consented to by the parties or fixed by the [trial] [c]court." The trial court retained jurisdiction during the remand proceedings before the Planning Board to facilitate compliance with the consent order.
The Planning Board subsequently held twelve hearings on Alfieri's pending applications between February 19, 2008 and November 18, 2008. At these hearings, Alfieri presented testimony from its project engineer, its planner, its environmental consultant, an engineer from the Turnpike Authority, and a real estate appraiser. These witnesses generally explained why certain adjustments to the 1993 Amended GDP were now warranted and, in particular, why it was not financially feasible for Alfieri to be forced to construct the proposed office space in the current economic climate.
The Planning Board also heard testimony from its consulting engineer and its planners. The Planning Board's engineer asserted that the 2005 Amended GDP reflected a significant difference in the project's uses from those that had been specified in the 1993 Amended GDP. Among other things, the Board's planner noted that the new plans reflected a 33.6 percent reduction in proposed office space, taking into account the average of the range approved in 1993. Moreover, the planned hotel space had been reduced by 32.5 percent. In addition, Canterbury Cove, which the Planning Board considered to be a residential section unto itself, had been reduced by
Following these hearings, the Planning Board determined
that: (1) an amended GDP was required; (2) the proposed 2005 Amended GDP must be denied, "as a result of it being inconsistent with the staging requirements of [the] GDP ordinance"; (3) the preliminary subdivision and site plan applications would be approved and nearly all requested variances and design waivers would be granted, provided that Alfieri obtain a valid GDP; and (4) the vesting of the 1985 GDP extended only through November 2009. Importantly, this decision rejected Alfieri's contention that it was entitled to a continued staging waiver allowing it to build the residences in Canterbury Cove before building the office and hotel buildings.
The Planning Board's decision was memorialized in a resolution dated February 3, 2009, which contained the following pertinent findings:
(1) The Board finds and concludes that the vested rights associated with the initial 1985 GDP are extended until ...