Willoughby v. Planning Bd. of Tp. of Deptford

Decision Date02 December 1997
Citation703 A.2d 668,306 N.J.Super. 266
PartiesAlan WILLOUGHBY, William H. Reese, Sr. and Citizens Alliance for a Responsible Environment, Plaintiffs-Appellants, v. PLANNING BOARD OF the TOWNSHIP OF DEPTFORD, the Township Council of Deptford and the Wolfson Group, Inc., Defendants-Respondents.
CourtNew Jersey Superior Court — Appellate Division

Michele R. Donato, Lavallette, for plaintiffs-appellants.

Wayne C. Streitz, Pitman, for defendant-respondent Deptford Township Planning Board (Ware, Streitz and Thompson, attorneys; Mr. Streitz, of counsel and on the brief).

Patricia L. Talcott, for defendant-respondent The Wolfson Group (Kaplin, Stewart, Meloff, Reiter and Stein, Cherry Hill; Dilworth, Paxson, Kalish and Kauffman; and Sherman, Silverstein, Kohl, Rose and Podolsky, attorneys; John Matheussen, Cherry Hill, and Robert Washburn, of counsel; Ms. Talcott, on the brief).

Angelini, Viniar and Freedman, for defendant-respondent Township Council of Deptford (Carl B. Viniar, Woodbury, filed a statement in lieu of brief).


The opinion of the court was delivered by


Defendant Wolfson Group, Inc. (Wolfson) is the equitable owner of a thirty acre tract of land on Route 41 in Deptford Township. The property is undeveloped woodland constrained in the rear by wetlands and steep slopes. Wolfson seeks to develop a retail shopping center on the property consisting of a 120,000 square foot Wal-Mart store and two other retail stores totalling 76,500 square feet. Plaintiff Citizens Alliance for a Responsible Environment is an association of residents of a neighborhood across Route 41 from the proposed shopping center and plaintiffs Alan Willoughby and William H. Reese are two individual residents of the neighborhood.

In June 1995 Wolfson applied to the defendant Planning Board of Deptford Township (Planning Board) to change the zoning of its property from "Office Campus" to "Town Center." On July 26, 1995, the Planning Board voted to recommend that the defendant Township Council of Deptford (Township Council) rezone the property as requested by Wolfson, and on August 23, 1995, the Planning Board adopted a resolution memorializing this recommendation. On September 7, 1995, the Township Council adopted an ordinance rezoning the area encompassing Wolfson's property from Office Campus to Town Center, which was published in the local newspaper on September 12, 1995.

Plaintiffs did not file a lawsuit challenging the validity of this ordinance within the forty-five day period provided by Rule 4:69-6(a). Instead, plaintiffs mounted a political campaign to unseat the members of the Township Council who had voted for the ordinance and to replace them with candidates committed to returning the zoning of Wolfson's property to Office Campus. This effort was successful, and a new Township Council opposed to development of the property as a shopping center was elected that November and took office on January 1, 1996.

Notwithstanding this change in the local political environment, on January 11, 1996, Wolfson filed an application for preliminary site plan approval with the Planning Board. During late February and early March, Wolfson's representatives held a series of meetings with the Planning Board's representatives. On March 14, 1996, the Township Council introduced an ordinance to change the zoning of Wolfson's property back to Office Campus. The following day, March 15, 1996, Wolfson submitted revised plans in support of its application, and on March 22, 1996, the Development Review Committee of the Planning Board gave conceptual approval to the plan, which was then "deemed complete." See N.J.S.A. 40:55D-10.3. The Committee referred the application to the full Planning Board, which commenced hearings on April 17, 1996. Before those hearings were concluded, the Township Council adopted the ordinance returning the zoning of Wolfson's property from Town Center to Office Campus on April 25, 1996. However, because N.J.S.A. 40:69A-181(b) provides that a municipal ordinance does not become effective until twenty days after adoption, the rezoning of Wolfson's property did not become effective until May 15, 1996. Despite the rezoning, the Planning Board determined to complete its review of Wolfson's site plan application. Consequently, it completed hearing testimony on May 1, 1996, and approved the application that same day. A week later, the Planning Board adopted a resolution granting Wolfson preliminary site plan approval as well as variances from certain parking, drainage, storm water management and buffer requirements.

On June 28, 1996, plaintiffs brought this action challenging the validity of both the preliminary site plan approval and the now repealed zoning ordinance pursuant to which the approval had been granted. Plaintiffs' complaint alleges that the repealed ordinance was invalid because it was inconsistent with the land use element of the municipality's master plan and the municipality failed to comply with the requirements of N.J.S.A. 40:55D-62(a). The complaint also alleges that the Planning Board's approval of Wolfson's site plan application was arbitrary, capricious and unreasonable because the plan fails to adequately address issues relating to traffic flow, environmental problems, stormwater management and buffers. The complaint further alleges that the Planning Board "did not give members of the public the opportunity to cross examine witnesses ... and to present evidence."

Two weeks after filing an answer, Wolfson moved for summary judgment. Wolfson's motion was supported by a "Statement of Material Facts," a certification of its president, and certain exhibits. However, Wolfson's motion was not accompanied by a transcript of the hearings before the Planning Board. In addition, the exhibits submitted in support of Wolfson's motion apparently did not include many of the documents which it had submitted to the Planning Board. Plaintiffs filed certifications in opposition to the motion which included various representations concerning the testimony presented to the Planning Board.

The trial court granted Wolfson's motion and dismissed plaintiffs' complaint. The court rejected plaintiffs' challenge to the validity of the ordinance on the ground that their complaint had not been filed within forty-five days after publication, as required by R. 4:69-6(a). The court concluded that the validity of the ordinance was a purely "private" rather than a "public" dispute and consequently there was no basis for extending plaintiffs' time to file suit. In dismissing the part of plaintiffs' complaint challenging the site plan approval, the court stated that the "certifications of plaintiff Willoughby in opposition to the moving papers raise no substantial issues of material fact to show an arbitrary, capricious and unreasonable action by any of the Township boards."

Plaintiffs appeal. We conclude that the trial court erred in dismissing plaintiffs' challenge to the approval of Wolfson's site plan application without reviewing the entire record of proceedings before the Planning Board. We also conclude that the court abused its discretion in refusing to grant an extension of time for plaintiffs to challenge the validity of the ordinance rezoning Wolfson's property to Town Center.


The Planning Board's approval of Wolfson's site plan application constituted a quasi-judicial decision of a municipal administrative agency, see Kotlarich v. Mayor of Ramsey, 51 N.J.Super. 520, 540-42, 144 A.2d 279 (App.Div.1958), which is subject to review in the Law Division in an action in lieu of prerogative writs. R. 4:69. Any hearing with respect to such a site plan application must be transcribed, N.J.S.A. 40:55D-10(f), and the Law Division's review of the planning board's decision must be based solely on the agency record. Kramer v. Board of Adjustment, Sea Girt, 45 N.J. 268, 289, 212 A.2d 153 (1965). The Law Division reviews the record to determine whether the planning board's factual findings are based on "substantial evidence" and whether its discretionary decisions are "arbitrary, capricious and unreasonable." Id. at 296-97, 212 A.2d 153. To enable the Law Division to perform this responsibility, the parties must present the record of proceedings before the board, including the transcript of any hearings to the Law Division, just as a party appealing to this court from a final decision of a state administrative agency must file a transcript of any hearing before the agency and an appendix containing the parts of the agency record which are essential to a proper consideration of the issues presented on appeal. R. 2:5-3(b); R. 2:5-4(a); R. 2:6-1(a)(8).

The normal procedure for submitting the record of proceedings before a local agency to the Law Division is through a pretrial conference, which is mandatory in all actions in lieu of prerogative writs. R. 4:25-1(a); see 36 New Jersey Practice, Land Use Law, § 18.16, at 454 (David J. Frizell & Harry S. Pozycki, Jr.) (1989). This conference "should be noticed and held immediately after the answering pleading is filed, without waiting for the usual discovery period to run." City of Clifton v. Zweir, 36 N.J. 309, 327, 177 A.2d 545 (1962). The parties frequently submit the administrative record to the court at the pretrial conference, and if that is not feasible, the pretrial order should require the record to be submitted by a specified date. The pretrial conference also provides an opportunity to resolve any questions which may exist regarding the contents of the administrative record or the parts of the record which the court must review to decide the case. In addition, the pretrial order should establish a schedule for briefing and an early date for a hearing and decision on the merits. See id. at 327-28, 177 A.2d 545. In scheduling the final hearing, the court should consider...

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