Field v. Mayor and Council of Franklin Tp.

• Decision Date: 30 June 1983
• Citation: Field v. Mayor and Council of Franklin Tp., 463 A.2d 391, 190 N.J.Super. 326 (N.J. Super. App. Div. 1983)
• Parties: Jack W. FIELD, Plaintiff-Respondent, v. MAYOR AND COUNCIL OF the TOWNSHIP OF FRANKLIN; Planning Board of the Township of Franklin, Defendants-Respondents, and Franklin Citizens for Orderly Planning, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 326

190 N.J.Super. 326

463 A.2d 391

Jack W. FIELD, Plaintiff-Respondent, v.MAYOR AND COUNCIL OF the TOWNSHIP OF FRANKLIN; Planning Board of the Township of Franklin, Defendants-Respondents and Franklin Citizens for Orderly Planning, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued June 14, 1983.

Decided June 30, 1983.

Mark L. First, Trenton, for defendant-appellant(Jamieson, McCardell, Moore, Peskin & Spicer, Trenton, attorneys; Mark L. First, Trenton, of counsel and on the brief).

Dennis A. Auciello, New Brunswick, on behalf of defendant-respondentPlanning Board.(Dennis A. Auciello, New Brunswick, on the brief).

David J. Frizell on behalf of plaintiff-respondent Field (Frizell & Pozycki, Metuchen, attorneys; David J. Frizell, Metuchen, of counsel and on the brief).

Before Judges BOTTER, POLOW and BRODY.

The opinion of the court was delivered by

POLOW, J.A.D.

In November 1978plaintiffJack W. Field applied to the Franklin Township Planning Board for preliminary approval of a Planned Unit Development (PUD) on a 396.5 acre tract.The entire development would encompass 1332 townhouses and 1332 garden apartment units, the maximum number of each of the two types of residential units permitted for this tract under the Franklin Township ordinance.The plan also provided for the minimum commercial requirement of 15% or 19.85 acres and the minimum open space and public area requirement of 25.1% or 99.36 acres.On or about December 28, 1978 the Field PUD application was declared complete.

Public hearings for tentative approval of the PUD application were held by the Planning Board on March 14, 29, April 11, 25 and 30, and May 7, 23 and 29, 1979.Appellant Franklin Citizens for Orderly Planning (FCOP) was represented by counsel and was permitted full participation in the proceedings by way of cross-examination of Field's witnesses, presentation of expert witnesses and submission of briefs on various issues.On or about June 13, 1979 the Planning Board adopted a resolution granting preliminary approval for the Field PUD application subject to 21 terms and conditions.

Pursuant to N.J.S.A. 40:55D-17(a) and the applicable Franklin Township zoning ordinance, FCOP appealed to the Franklin Township Council.When the Township Council denied his motion to dismiss for lack of jurisdiction and reserved decision on the issue of FCOP's standing, Field filed an action in lieu of prerogative writs attacking the Council's denial of his motion to dismiss and FCOP's standing to appeal from the action of the Planning Board.He also demanded monetary damages from FCOP and two of its members for losses allegedly resulting from delay.The complaint was dismissed for failure to exhaust administrative remedies.

Thereafter, FCOP's appeal to the Township Council was completed.On January 14, 1980 the Council adopted a resolution reversing and remanding in part and affirming in part the Planning Board determination.The Council's resolution set forth six stages of construction and the time frame during which each stage was to be constructed.However, it concluded that there was insufficient support in the record for the Planning Board's conclusion that "the physical design of the various proposed sanitary facilities is adequate or feasible."Thus, the matter was remanded to the planning board "to develop testimony and make findings of fact and conclusions thereon as to the adequacy and feasibility of the physical design for providing sanitary sewers for the PUD."It required, further, specific findings and conclusions with regard to each of the three proposed sewage treatment options and the impact of each option.All of FCOP's additional contentions in attacking the PUD preliminary approval were rejected.

Thereupon, plaintiff amended his original complaint in the Law Division to appeal from the Council's decision.In a letter opinion of June 29, 1982, the trial judge found as a matter of law that the action of the Township Council in remanding the matter for further findings and conclusions on the sewer feasibility issue violated the Municipal Land Use Law and was therefore void.Thus, the adverse action of the Township Council was reversed and the matter was remanded "with instructions to grant plaintiff's application for preliminary approval."On this appeal FCOP seeks reinstatement of the Township Council's remand to the planning board for additional evidence and findings on the sewage feasibility issue and seeks a remand to the Township Council of all other issues for a de novo review of the record.

FCOP contends that the Planning Board erroneously granted preliminary approval in that certain required findings were deferred "until the final approval and construction stages" including findings with regard to sewer, water, staged development, environmental impact, and low and moderate income housing.

The trial judge, in reversing the Township Council's remand of the sewer feasibility issue, effectively reinstated and upheld the Planning Board's resolution granting preliminary approval.On appeal, we must determine whether the findings and conclusions of the Township Council, as the relevant governing body, are supported by the record.Evesham Tp. Bd. of Adj. v. Evesham Tp. Council, 86 N.J. 295, 300, 430 A.2d 922(1981).Thus, the issues before us are whether the Township Council properly held that the record is inadequate with regard to sewer feasibility and whether the Planning Board approval on all other issues, as affirmed by the Township Council, violates the Municipal Land Use Law ("the act"), N.J.S.A. 40:55D-1 et seq., because that approval is subject to fulfillment of certain terms and conditions at some unspecified future time.

The act defines preliminary approval as "the conferral of certain rights pursuant to sections 34,36and37 of this Act prior to final approval after specific elements of a development plan have been agreed upon by the planning board and the applicant."N.J.S.A. 40:55D-6(footnote omitted; emphasis supplied).SeeN.J.S.A. 40:55D-46, 40:55D-48, 40:55D-49.The granting of preliminary approval for a PUD signifies that agreement has been reached on basic elements of the PUD, including its physical design, the method of provision of public services and its impact on the physical environment.SeeN.J.S.A. 40:55D-45.Moreover, the granting of such approval signifies that before approval was given the Planning Board made specific findings of fact with respect to the PUD as required by N.J.S.A. 40:55D-45 of the act.

When preliminary approval of any major subdivision, seeN.J.S.A. 40:55D-5, is granted the applicant may rely on certain statutory rights for a three-year period from the date of approval.N.J.S.A. 40:55D-49.The general terms and conditions on which preliminary approval was granted may not be changed, except for those which "relate to public health and safety".The applicant may submit "the whole or a section or sections of the preliminary subdivision plot or site plan" before the expiration date of preliminary approval.The applicant may be granted extensions "of at least 1 year but not to exceed a total extension of 2 years."N.J.S.A. 40:55D-49(a)-(c).In addition, where, as here, the subdivision of an area of 50 acres or more is involved, the Planning Board may grant preliminary approval rights for a period longer than three years, "taking into consideration (1) the number of dwelling units and nonresidential floor area permissable under preliminary approval, (2) economic conditions, and (3) the comprehensiveness of the development."N.J.S.A. 40:55D-49(d).

Under the Municipal Plan Act(1953), N.J.S.A. 40:55-1.1 et seq., the predecessor of the Municipal Land Use Law, tentative approval of a plan could be granted "subject to specified conditions not included in the plan as submitted."N.J.S.A. 40:55-61, repealed L.1975, c. 291, § 80(effective Aug. 1, 1976).

In contrast, N.J.S.A. 40:55D-48 of the current act, which sets forth the procedure for preliminary approval of major subdivisions, including PUD's, does not refer to preliminary approval subject to conditions.Subsection (c) of the provisions states:

c. Upon the submission to the administrative officer of a complete application for a subdivision of 10 or fewer lots, the planning board shall grant or deny preliminary approval within 45 days of the date of such submission or within such further time as may be consented to by the developer.Upon the submission of a complete application for a subdivision of more than 10 lots, the planning board shall grant or deny preliminary approval within 95 days of the date of such submission or within such further time as may be consented to by the developer.Otherwise, the planning board shall be deemed to have granted preliminary approval to the subdivision.[Emphasis added.]

Thus, the act contemplates a "complete" application for preliminary approval.However, it also provides for conditional approval in the following section:

b. In the event that development proposed by an application for development requires an approval by a governmental agency other than the municipal agency, the municipal agency shall, in appropriate instances, condition its approval upon the subsequent approval of such governmental agency; provided that the municipality shall make a decision on any application for development within the time period provided in this act or within an extension of such period as has been agreed to by the applicant unless the municipal agency is prevented or relieved from so acting by the operation of law.[ N.J.S.A. 40:55D-22.]

Furthermore, the provision for final approval contemplates completion or...