Hidden Oaks Woods, LLC v. Township of East Brunswick (In re Township of East Brunswick)
| Decision Date | 30 July 2021 |
| Docket Number | A-3115-19,A-3125-19 |
| Parties | IN THE MATTER OF THE TOWNSHIP OF EAST BRUNSWICK FOR A JUDGMENT OF COMPLIANCE OF ITS THIRD ROUND HOUSING ELEMENT AND FAIR SHARE PLAN. v. TOWNSHIP OF EAST BRUNSWICK and TOWNSHIP OF EAST BRUNSWICK PLANNING BOARD, Defendant-Appellant. HIDDEN OAKS WOODS, LLC, Plaintiff-Respondent, |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 12, 2021
On appeal from the Superior Court of New Jersey, Law Division Middlesex County, Docket Nos. L-4013-15 and L-4282-19.
Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys for appellant Township of East Brunswick; and Lawrence B Sachs, attorney for appellant Township of East Brunswick Planning Board (Michael J. Baker, Richard J. Mirra, and Lawrence B. Sachs, of counsel and on the joint briefs; Joseph D. Palombit, on the joint brief).
Eckert Seamans Cherin & Mellott, LLC, attorneys for respondent Hidden Oak Woods, LLC (Frank J. Petrino, of counsel and on the brief; Victoria D. Britton, on the brief).
Fair Share Housing Center, attorneys for respondent (Bassam F. Gergi, of counsel and on the brief).
New Jersey Appleseed Public Interest Law Center, attorneys for amicus curiae Lawrence Brook Watershed Partnership and Lower Raritan Watershed Partnership (Renee Steinhagen, on the brief).
Before Judges Sumners and Geiger.
In this land use dispute, we have consolidated two appeals for the purpose of writing a single opinion. In A-3115-19, defendants Township of East Brunswick (the Township) and Township of East Brunswick Planning Board (the Planning Board) appeal the Law Division's February 24, 2020 order reversing the Planning Board's denial of plaintiff Hidden Oak Woods LLC's application for preliminary and final site plan approval to construct a 275-unit residential complex (the complex) with fifty-five affordable housing units. In A-3125-19, defendants appeal the provision in the Law Division's order enjoining and restraining the Township's Mayor Brad Cohen from participating in the Planning Board's hearing and consideration of plaintiff's site plan application as well as all site plan applications relating to a 2016 Housing Element and Fair Share Plan (HEFSP) and the 2016 Judgment of Compliance and Repose. Having considered the parties' arguments in light of the record and applicable law, we affirm the order reversing the Planning Board's denial of plaintiff's site plan application but reverse the order enjoining and restraining Cohen's participation.
This controversy arises from the Township's July 2015 declaratory judgment action for substantive certification of its affordable housing plan, In re Township of East Brunswick for a Judgment of Compliance of its Third Round HEFSP, No. L-4013-15 (Law Div. July 7, 2015). Plaintiff was permitted to intervene due to its plans to build the complex.
A year later in July 2016, the parties reached a settlement agreement (2016 settlement agreement) resulting in a reduction of the Township's present need obligation of affordable housing units from 1664 to 1067. Plaintiff's complex was included for inclusionary development, and plaintiff agreed to set aside twenty percent of the units for affordable housing. An August 15, 2016 court order approved the settlement agreement on the basis that it was "fair and reasonable and in the best interests of those in need of low[-] and moderate[-]income housing . . . ." That same year, the Township adopted its third-round HEFSP (2016 HEFSP) as well as an ordinance rezoning the area of plaintiff's site to permit multi-dwelling apartment housing. Consequently, on December 12, 2016, the court entered a Final Judgment of Compliance and Repose declaring, among other things, that the Township had complied with its fair share housing obligation and that the court would retain jurisdiction to ensure implementation of the order.
In December 2017, plaintiff filed an application with the Planning Board for preliminary and final site plan approval of its complex. The complex is situated on approximately forty-one acres in the Township's multifamily dwelling apartment zone with frontage on Harts Lane and access to Tices Lane by way of Eagle Road (Ja844), and access to Harts Lane by way of Mill Brook Court. The State targeted the location for growth. The complex consisted of seven four-story buildings comprising 275 rental units with fifty-five, or twenty percent, dedicated for affordable housing, interspersed with the market-rate units. Plaintiff sought bulk variances to permit encroachments into the landscape buffer area, for parking stalls and driveways, and for going beyond the minimum set back. The Township's land use ordinance permitted twenty-five percent, but the building coverage was five percent. Thirty-four percent of the site was allotted for open space even though the ordinance required twenty-five percent. Under the terms of the 2016 settlement agreement, plaintiff was responsible for the construction of two new traffic signals, one at the intersection of Tices Lane and Harts Lane, and the other at Tices Lane and University Avenue, along with the necessary paving and road striping.
Back in May 2017, plaintiff applied to the New Jersey Department of Environmental Protection (DEP) for a wetlands permit to disturb a wetlands and buffer area on the site. On June 20, 2018, the DEP issued a wetlands permit, GP-6, permitting disturbance of 0.19 acres of wetlands and 0.48 acres of buffer zone for the construction of a parking lot. Plaintiff's proposed storm water management system was also approved by the DEP as part of the GP-6 permit, which expires on June 19, 2023.
After five diverse hearing dates beginning July 18, 2018 and ending February 13, 2019, the Planning Board denied plaintiff's application. On April 24, the Planning Board adopted a resolution memorializing its denial.
In June, plaintiff filed a complaint in lieu of prerogative writs seeking a declaratory judgment reversing the Planning Board's decision and the appointment of a special master. In addition, plaintiff filed a motion to enforce litigant's rights in the 2016 settlement agreement. The two matters were consolidated for trial.
Following a one-day trial, the judge reserved decision. On February 24, 2020, the court issued an order and a written opinion entering final judgment in plaintiff's favor, thereby vacating the Planning Board's denial of plaintiff's site plan application. In addition, the court directed a limited remand of the site plan application to the Planning Board to approve the application, including the minor bulk variances requested, subject to "such other reasonable conditions as the [Planning] Board may deem necessary." The judge also denied, in part, and without prejudice, Fair Share Housing Center's (Fair Share) cross-motion to extinguish the fifty-five rental bonus credits available to the Township for the project and to revoke the Township's builders' remedy lawsuit immunity. In addition, the court restrained and enjoined Cohen from any further participation, as a member of the Planning Board, in the body's consideration and hearing of plaintiff's application, as well as any other development applications involving development projects designated or provided for in the 2016 HEFSP and 2016 Final Judgment of Compliance and Repose. A Mount Laurel[1] Implementation Monitor was appointed to review and approve any building or development applications to ensure that there was no conflict with the 2016 Final Judgment of Compliance and Repose. Plaintiff's and Fair Share's applications for counsel fees were denied without prejudice The judge also retained jurisdiction to enforce its order and related relief.
We address defendants' numerous challenges to February 24, 2020 order in the order presented.
Defendants argue the trial judge erred in reversing the denial of plaintiff's preliminary and final site plan application by failing to give proper deference to the Planning Board and substituting his judgment for the Planning Board's as to the necessary traffic plan and lack of a wetlands letter of interpretation (LOI) stemming from the DEP issues. Amici Lawrence Brook Watershed Partnership and Lower Raritan Watershed Partnership assert that the Planning Board was correct in requiring an updated wetlands LOI from the DEP under N.J.A.C. 7:7A-4.2(b)(1).
"[A] planning board's authority in reviewing a site plan application is limited to determining whether the plan conforms with the municipality's zoning and site plan ordinances." Sartoga v. Borough of W. Paterson, 346 N.J.Super. 569, 581 (App. Div. 2001) (citing W.L. Goodfellows & Co. of Turnersville, Inc. v. Washington Twp. Planning Bd., 345 N.J.Super. 109, 116 (App. Div. 2001)). This administrative function is not intended to include the legislative or quasi-judicial power to prohibit a permitted use. See Stochel v. Planning Bd. of Edison Twp., 348 N.J.Super. 636, 641-42 (Law Div. 2000). Thus, a planning board's role in evaluating a site plan application "is somewhat 'circumscribed.'" W.L. Goodfellows, 345 N.J.Super. at 116 ).
In reviewing a planning board's decision, we use the same standard used by the trial court. Cohen v. Bd. of Adjustment of Borough of Rumson, 396 N.J.Super. 608 614-15 (App. Div. 2007). Like the trial court, our review of a planning board's decision is limited. Smart SMR of New York, Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998). We give deference to a planning board's decision because it is presumed to be valid, but we will reverse if...
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