Opinion
DOCKET NO. A-3793-12T1 DOCKET NO. A-1886-13T1
07-22-2015
WASHINGTON SHOPPING CENTER, INC., Plaintiff-Appellant, v. TOWNSHIP OF WASHINGTON LAND USE BOARD, ASBURY FARMS, L.L.C., and RETAIL SHOPPES AT HAWK POINTE, Defendants-Respondents.
Lawrence S. Berger argued the cause for appellant in A-3793-12 and A-1886-13 (Berger & Bornstein, attorneys; Mr. Berger, on the brief). Mark R. Peck argued the cause for respondents Asbury Farms, L.L.C. and Retail Shoppes at Hawk Pointe in A-3793-12 and A-1886-13 (Florio, Perrucci, Steinhardt & Fader, attorneys; Mr. Peck, on the brief). Respondent Township of Washington Land Use Board has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Hayden and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-517-10. Lawrence S. Berger argued the cause for appellant in A-3793-12 and A-1886-13 (Berger & Bornstein, attorneys; Mr. Berger, on the brief). Mark R. Peck argued the cause for respondents Asbury Farms, L.L.C. and Retail Shoppes at Hawk Pointe in A-3793-12 and A-1886-13 (Florio, Perrucci, Steinhardt & Fader, attorneys; Mr. Peck, on the brief). Respondent Township of Washington Land Use Board has not filed a brief. PER CURIAM
We have consolidated these two appeals for the purpose of issuing a single opinion.
In A-3793-12, plaintiff Washington Shopping Center, Inc., appeals from the trial court's March 27, 2013 order (the March 2013 order) that granted plaintiff much of the relief sought in its complaint in lieu of prerogative writs against defendants, the Washington Township Land Use Board (the Board), Asbury Farms, L.L.C. (Asbury), and the Retail Shoppes at Hawk Pointe (the Shoppes), a commercial portion of Asbury's mixed-use planned development in Washington Township (the Township).
Specifically, plaintiff's complaint asked the court to void the Board's August 10, 2010 resolution (Resolution 2010-09) that approved Asbury's application for storm water management waivers and variances in conjunction with the Shoppes portion of the development. The judge concluded that the Board's action granting the waivers and variances was "arbitrary, capricious and unreasonable" and vacated those approvals.
Plaintiff also asked the court to set aside another resolution approved by the Board on the same day (Resolution 2010-17). Resolution 2010-17 relieved Asbury of its obligation to file a deed restriction to insure that a large portion of the project would remain open space. The deed restriction was a condition the Board imposed upon Asbury nearly a year earlier, in November 2009, when Asbury sought and was granted a ten-year extension of its general development permit (GDP). The March 2013 order provided that to the extent Resolution 2010-17 "allow[ed] substitution of a memorandum for a [d]eed [r]estriction" as required by ordinance, the resolution was "void as an action beyond the power of the . . . Board."
Plaintiff never challenged the Board's 2009 resolution extending Asbury's GDP for an additional ten years (the GDP Extension), waiting instead to challenge Resolution 2010-17. The judge specifically did not resolve whether plaintiff's challenge was time-barred under Rule 4:69-6, instead concluding in her written opinion that the Township ordinance limiting approval of any GDP to no more than ten years without the possibility of renewal was preempted by provisions of the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163 (the MLUL).
The March 2013 order also "denied and dismissed" "all other claims of plaintiff." Although not specifically sought as relief in the complaint, the judge refused plaintiff's request to set aside Asbury's 2001 conveyance of 1.8 acres of its property to an adjoining property owner, concluding the request was time barred under Rule 4:69-6. The order also did not grant plaintiff the injunctive relief sought in its complaint.
Construction on the Shoppes portion of the site was ongoing while plaintiff's complaint was pending in the Law Division. Plaintiff filed its appeal of the March 2013 order in April 2013. In September 2013, utilizing the docket number of its prerogative writ action, plaintiff filed a motion to enforce litigant's rights, seeking to enjoin continued construction and occupancy of the Shoppes. Essentially, plaintiff argued that because the March 2013 order vacated the storm water management waivers and variances, Asbury had constructed the Shoppes without valid site plan approval.
A second Law Division judge considered oral argument on plaintiff's motion and entered an order denying the requested relief. Plaintiff then filed its notice of appeal in A-1886-13.
I.
It is necessary to set forth in some detail the factual and procedural history. In 1998, the Board reexamined the Township's Master Plan and recommended that a new zone be created in response to Asbury's proposal to develop a portion of its 317 acre property abutting Route 31. The Township Committee adopted ordinances creating a Planned Village District (PVD), which consisted entirely of Asbury's property, and providing for implementation of a GDP.
Section 123-13.2(F)(1) of the PVD ordinance provided that
[a]ll development within the [PVD] shall be a part of a planned unit development comprising the whole of the [PVD]. Either the whole of the district shall be under single ownership or control or, in the case of multiple ownership of contiguous tracts, satisfactory evidence shall be presented of written agreement among the involved owners consenting to the development application and agreeing that it will proceed in accordance with the approved plan.According to Section 64-44(B) of the GDP ordinance, "[t]he term of the . . . [GDP] Approval shall be determined by the Land Use Board . . . , except that such term . . . shall not exceed [ten] years from the date upon which the developer receives final approval of the first section of the planned development pursuant to this chapter." Section 64-46(B) further provided that, if a revised GDP was approved by the Board, "such approval shall not extend the period for which [GDP] approval was originally granted" by the Board.
On September 29, 1999, the Board adopted a resolution granting Asbury GDP approval for an extensive mixed-use development that anticipated residential, commercial and office uses, as well as a golf course. The Board's resolution provided that "[t]he term of . . . [the GDP approval] shall be . . . a period of ten (10) years from the date upon which the developer receives final approval for the first section of the development." On March 8, 2000, Asbury, the Township, and the Board entered into a General Development Plan Agreement (the GDP Agreement) with similar timeframes. Asbury first received final site plan approval for a portion of its development on April 12, 2000, and a resolution to this effect was approved by the Board on August 30, 2000.
In 2001, Asbury sought an amendment to the GDP, including permission to convey 1.8 acres of its parcel, which fronted Route 31 and was within the PVD, to the owners of adjacent property containing a hardware store — Washington One Stop — with direct access from Route 31. The purpose was to merge the conveyed parcel with the hardware store's adjacent property. On May 30, 2001, the Board approved the amendment permitting the conveyance.
Pursuant to the Board's resolution, the conveyance and merger were required to be completed by November 9, 2001, and a written amendment to the GDP Agreement had to be executed by July 30, 2001. It is undisputed that the deed was not recorded until January 16, 2002, and the record does not reflect that a written amendment to the GDP Agreement was ever executed.
Over the ensuing years, Asbury sought and received additional amendments to the GDP. On October 27, 2006, Asbury filed an application seeking preliminary site plan approval, along with lighting and parking variances and storm water management design waivers, for the construction of a Shop Rite supermarket in a commercial portion of the development. The Board approved this application in June 2007.
In August 2007, plaintiff, the owner of nearby commercial property, filed suit. While the suit was pending, the Board granted final site plan approval to Asbury and construction commenced on the Shop Rite.
In November 2007, Asbury applied to the Board for another amendment to the GDP, during which proceedings the Board's planner proposed extending the GDP for an additional ten years. As a condition of approval, Asbury agreed to provide a conservation easement in response to public concerns about the preservation of open space within the PVD. In its January 30, 2008 resolution, the Board extended the term of the GDP for an additional ten years, conditioned upon the provision of a conservation easement.
Meanwhile, plaintiff's court challenge resulted in two orders entered by the Law Division, first, enjoining any further construction of the Shop Rite, and second, voiding final site plan approval. Plaintiff's successful challenges led to the Township Committee's decision to amend the Master Plan and PVD ordinance.
In the Master Plan Amendment report adopted in June 2009, the Township Council reiterated the history that led to the PVD, as well as the various ordinance amendments adopted thereafter. The report noted that "[t]he original concept of the [PVD] ha[d] been implemented in the residential area and substantially-implemented in the conservation components." Referencing plaintiff's successful court challenge, the report stated, "The invalidation of the . . . ordinances and approvals necessitates the revisiting of the Master Plan to establish the Township's updated and clarified vision for the [PVD]."
The report continued by citing the revisions to the PVD adopted by the Board over the years. "In order to implement" a number of objectives referenced by the Board, the Township proposed changes to the PVD ordinance. At no point did the report reference a need to amend the ordinance to permit an extension of the GDP. However, a fair reading of the entire document makes it clear that the Township did not anticipate the PVD would be completed by 2010, i.e., ten years after final site plan approval was first granted to a phase.
In August 2009, Asbury re-applied for preliminary and final major site plan approval for the Shop Rite. It again sought the same storm water management design waivers and lighting and parking variances previously granted by the Board.
On November 18, 2009, the Board adopted a resolution granting site plan approval and the requested waivers and variances, as well as the GDP Extension, extending the term of the GDP for ten more years, as the Board had done in January 2008. The extension was expressly conditioned on the homeowners' association's consent, and Asbury and the Township agreeing within six months on a deed restriction incorporating the conservation easement (condition 8(c)). As already noted, plaintiff did not challenge the GDP Extension.
On May 17, 2010, Asbury filed an application for preliminary and final site plan approval and variances for the Shoppes, 17,000 square feet of retail space within the commercial portion of the PVD. The Shoppes were located opposite the Shop Rite and shared the same parking lot. Asbury sought a continuation of the storm water management design waivers and the lighting and parking variances that were granted in the GDP Extension resolution. Asbury averred that all storm water management improvements had already been constructed, and the Shoppes building simply needed "its roof leaders tied into the existing storm system."
Asbury's application was essentially put on hold, since condition 8(c) of the GDP Extension had not been satisfied. At a July 14, 2010, hearing, Asbury urged the Board to amend the GDP and remove condition 8(c), offering instead to provide the Township with a memorandum of understanding (MOU) as its commitment to maintain the required open space. Although the Board's counsel advised that a conservation easement was required under both the PVD ordinance and the master plan, and that both would have to be amended to allow removal of condition 8(c), the Board granted Asbury's request in a resolution dated August 25, 2010 (Resolution 2010-17).
In a separate resolution (Resolution 2010-09), the Board also approved Asbury's application for waivers and variances on behalf of the Shoppes portion of the development. During proceedings on this application, the Board elected not to hear again the expert testimony which had been presented in 2009 regarding the needed waivers and variances in conjunction with the Shop Rite application.
On October 15, 2010, more than forty-five days after adoption, plaintiff filed the instant complaint specifically challenging Resolutions 2010-9 and 2010-17. Plaintiff alleged that: site plan approval for the Shoppes and the Board's granting of variances and waivers violated the MLUL; the Board had arbitrarily approved the resolutions by relying on evidence "outside the hearings and not in the record," and otherwise in violation of the MLUL. In a specific count, plaintiff sought to enjoin continued construction and occupancy of the Shoppes. In its general prayer for relief, plaintiff sought a declaration that Resolutions 2010-09 and 2010-17 were "void and of no force or effect."
In December 2011, while the complaint was pending, Shop Rite, not Asbury, applied to the Board for amended preliminary and final site plan approval. Shop Rite claimed that the original storm water design was not working well, and the proposed modification required a waiver. The Board held hearings on Shop Rite's application in January and February 2012. Plaintiff lodged no objection, and the Board approved the application in a resolution dated April 11, 2012. The resolution did not specifically address the storm water waivers and site plan approvals granted to Asbury in connection with the Shoppes application.
Additionally, the parties consented to a limited remand so the Board could consider Asbury's application on behalf of a tenant for minor amendments to prior approvals. The Board granted those approvals by a memorializing resolution also dated April 11, 2012 (Resolution 2012-1). We gather that plaintiff was permitted to file an amended complaint, which is not in the record, because the amended answers filed by the Board and Asbury, which are in the record, reference plaintiff's challenge to Resolution 2012-1.
At oral argument before the Law Division judge, plaintiff argued that Resolution 2010-17 was void, because the Board lacked any authority to permit substitution of the MOU for a duly-recorded conservation easement without prior amendment of the PVD ordinance and master plan. Plaintiff further contended that Resolutions 2010-09 and 2012-1 should be set aside because the GDP was "in default," since its original ten-year term had expired, and the GDP ordinance and GDP agreement limited the plan to one ten-year term. Counsel asserted that this untimely challenge to the GDP Extension was permissible as a collateral attack on the Board's jurisdiction, and also because Rule 4:69-6(c) permitted an enlargement of the 45-day period for filing a prerogative writs action when there were important public or constitutional issues at stake.
Plaintiff also argued the approvals granted by Resolutions 2010-09 and 2012-1 must be set aside because the Board heard no testimony at either hearing, relying instead upon expert testimony produced at the hearings on the Shop Rite application. Lastly, plaintiff contended that the 2001 conveyance of 1.8 acres by Asbury to another property owner violated the PVD ordinance.
On March 27, 2013, the judge issued her written decision with an accompanying order that voided Resolution 2010-17 to the extent it permitted the substitution of an MOU for a deed restriction. The judge carefully explained that the PVD ordinance required the conservation easement be effectuated by a duly-recorded deed restriction, and the Board lacked any authority to approve the MOU as a substitute.
The order also set aside the waivers and variances provided in Resolution 2010-09. The judge reasoned that the Board's actions were "arbitrary, capricious and unreasonable," because although the Board was "trying to be practical" by relying upon prior testimony, the approvals could only be granted "based upon evidence adduced at the hearing" before the Board.
The judge's written opinion did not address specifically Resolution 2012-1.
However, the judge rejected plaintiff's contention that the Board had no authority to consider Asbury's application because the GDP was "in default." She acknowledged the Board's contention that plaintiff was time-barred under Rule 4:69-6(a) from objecting to the Board's earlier decision to extend the GDP by an additional ten years. However, the judge concluded that, because "the [B]oard had the power under N.J.S.A. 40:55D-45.1(b) to extend the plan by ten years, [she] need not address whether . . . the complaint is time barred."
The judge reasoned that N.J.S.A. 40:55D-45.1(b), which permits a planning board to authorize a GDP for a term of twenty years, preempted Section 64-44B of the GDP ordinance. Although she had voided a condition in Resolution 2010-17 — substitution of an MOU — the judge concluded that Asbury could do what the ordinance required — record the conservation easement — and there was no need to remand the matter to the Board. Lastly, the judge explained that plaintiff's challenge to the 2001 conveyance was time barred under Rule 4:69-6(a).
Plaintiff asserts two separate challenges to the March 2013 order. It contends that N.J.S.A. 40:55D-45.1(b) does not preempt a local municipal governing body from enacting an ordinance that provides for a limit on the term of any GDP less than the maximum twenty-year limit provided by the MLUL, and that the Board's actions in adopting the various resolutions were ultra vires because the GDP had expired. Plaintiff also argues that the judge erred in refusing to set aside the 2001 conveyance, which violated the single-ownership requirement of the PVD ordinance.
Asbury urges us to affirm the Law Division's order in both respects substantially for the reasons expressed by the trial judge. Having now considered these arguments in light of the record and applicable legal standards, we affirm.
II.
We first consider the timeliness of plaintiff's challenge to both the 2001 conveyance and the GDP Extension. Pursuant to Rule 4:69-6(a), an action in lieu of prerogative writs must be filed within forty-five days "after the accrual of the right to the review, hearing or relief claimed." The rule reflects the important policy of repose and is designed to encourage parties not to rest on their rights. Borough of Princeton v. Bd. of Chosen Freeholders, 169 N.J. 135, 153 (2001). Subparagraph (b) of the Rule essentially defines the date of accrual in "[p]articular [a]ctions." No litigant may commence an action "to review a determination of a planning board . . . after 45 days from the publication of a notice once in the official newspaper of the municipality or a newspaper of general circulation in the municipality." R. 4:69-6(b)(3).
A court may, nonetheless, "enlarge the period of time provided in paragraph (a) or (b) . . . where it is manifest that the interest of justice so requires." R. 4:69-6(c). "[T]hree general categories of cases . . . qualify for the 'interest of justice' exception: 'cases involving (1) important and novel constitutional questions; (2) informal or ex parte determinations of legal questions by administrative officials; and (3) important public rather than private interests which require adjudication or clarification.'" Borough of Princeton, supra, 169 N.J. at 152 (quoting Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975)). More recently, the Court rejected a rigid analysis limited to these three scenarios, instead making clear that enlargement is appropriate when a court in the exercise of its discretion, "perceives a clear potential for injustice" by application of the statute of limitations. Hopewell Valley Citizens' Grp., Inc. v. Berwind Prop. Grp. Dev. Co., L.P., 204 N.J. 569, 578 (2011).
The judge concluded plaintiff's challenge to the 2001 conveyance was time-barred under subsection (a), since the deed transferring 1.8 acres of Asbury's land was executed in 2001. The judge also concluded that "there [was] not a basis under [Rule] 4:69-6(c) to enlarge the time by when the complaint on this issue should have been filed," noting "the property conveyed . . . [was] a relatively small parcel, . . . not in an area being preserved for the public, . . . . [and it] will not have any impact upon adjoining property owners or the public, for that matter."
Plaintiff argues that the court should have enlarged the filing period because the transfer implicated strong public interests. That argument lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). It suffices to say that the judge did not mistakenly exercise her discretion in this regard.
Alternately, plaintiff argues that it raised a "jurisdictional challenge" to the Board's decision to permit the 2001 conveyance in violation of the single-ownership requirement of the PVD ordinance. Plaintiff contends such a jurisdictional challenge is not time-barred. We disagree.
"[E]ven if the time Rule 4:69-6 allows for direct review of a municipal agency's action has expired, an action that was utterly void . . . is subject to collateral attack at any time." Najduch v. Twp. of Independence Planning Bd., 411 N.J. Super. 268, 274 (App. Div. 2009) (quoting Thornton v. Vill. of Ridgewood, 17 N.J. 499, 510 (1955)) (emphasis added) (internal quotation marks omitted). "[W]here there is no semblance of compliance with or authorization in the [governing] ordinance, the deficiency is deemed jurisdictional and reliance will not bar . . . a collateral attack after the expiration of time limitation applicable to direct review" through an action in lieu of prerogative writs. Jantausch v. Borough of Verona, 41 N.J. Super. 89, 94 (Law Div. 1956), aff'd, 24 N.J. 326 (1957); accord V.F. Zahodiakin Eng'g Corp. v. Zoning Bd. of Adjustment, Summit, 8 N.J. 386, 395 (1952).
Here, however, plaintiff sought direct, not collateral, review of the Board's authorization of the conveyance some nine years earlier. See V.F. Zahodiakin, supra, 8 N.J. at 390-96 (affirming denial of request to continue expired variances because the variances, granted some nine years earlier, had actually been void at inception and were therefore subject to untimely collateral attack). Asbury's 2001 transfer of 1.8 acres of its land had no nexus to the three resolutions plaintiff challenged in its complaint. We affirm the trial court's determination that plaintiff's challenge to the 2001 conveyance was time-barred.
We turn to whether plaintiff's collateral challenge to the GDP Extension was similarly time-barred, an issue raised by the Board, but left unresolved by the trial judge. It is axiomatic that we review final orders and judgments, not the written opinions that support them. Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001). It is therefore entirely appropriate for us to consider alternative grounds for relief that were raised in the Law Division, but left unaddressed by the judge. Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 256 n.1 (App. Div. 2011), certif. denied, 209 N.J. 98 (2012).
Although neither party addressed this issue in its initial brief, we requested that they file supplemental briefs on the issue. Plaintiff's contention is that the Board lacked jurisdiction to consider the applications leading to the passage of Resolutions 2010-09, -17 and 2012-1, because the GDP was in default because, pursuant to the Township's ordinance, the GDP could not have been extended for an additional ten years.
Initially, we find no basis to authorize relaxation of the time limits by application of Rule 4:69-6(c). Although plaintiff's complaint was filed a few days beyond the forty-five day limit in Rule 4:69-6, the judge found a minor relaxation was appropriate to permit a challenge to the Board's decision to substitute the MOU for the deed restriction. Her decision explained the significant public interest at stake in preserving open space within the PVD.
The 2009 GDP Extension, however, did not involve an important constitutional question, or result from an informal or ex parte administrative determination, or involve a vital public interest. Borough of Princeton, supra, 169 N.J. at 152-53; Reilly v. Brice, 109 N.J. 555, 558-59 (1988); Brunetti, supra, 68 N.J. at 586-87. The validity of the GDP Extension affected only one, albeit major, development, but it did not affect numerous properties within the Township. Compare Adams v. DelMonte, 309 N.J. Super. 572, 581 (App. Div. 1998), (finding no "important and novel constitutional questions"), with Damurjian v. Bd. of Adjustment, 299 N.J. Super. 84, 97-98 (App. Div. 1997) (finding a substantial constitutional question). There was no manifest injustice occasioned by application of the Rule's statute of limitations.
Moreover, we have held that relaxation of the 45-day period under subsection (c) is unwarranted where a plaintiff, fully aware of the proceedings and outcome, chooses to adopt a "wait and see" strategy rather than timely filing its complaint. Rocky Hill Citizens for Responsible Growth v. Planning Bd., 4 06 N.J. Super. 384, 403 (App. Div. 2009) (internal quotation marks omitted). In this case, plaintiff had been waging a constant campaign challenging decisions made by the Board in favor of Asbury, and, in doing so, was repeatedly successful in vindicating its legal rights. Yet, knowing the Board had originally adopted an extension in January 2008, plaintiff never challenged the GDP Extension in November 2009, choosing instead to wait until the Board specifically acted on Asbury's application, nearly one year later. The precipitating events that led to the filing of plaintiff's complaint were the Board's decision to substitute the MOU for the deed restriction (Resolution 2010-17), and its decision to grant variances and waivers without taking any testimony (Resolution 2010-09), ironically, two issues upon which plaintiff prevailed in the Law Division.
Plaintiff contends that it was free to assert a collateral challenge to the GDP Extension beyond the time limits contained in Rule 4:69-6 because the Board's actions were ultra vires. Such collateral attacks are permitted if the underlying government actions was utterly void. Thornton, supra, 17 N.J. at 510 (internal quotation marks omitted). Critical to consideration of that issue is whether the complained of action — extending the GDP beyond ten years - was beyond the jurisdiction of the Board.
In Najduch, 411 N.J. Super. at 274-75, for example, we found that the plaintiffs' untimely collateral challenge to an approved 1989 site plan was permissible because the 2007 resolutions under review were premised upon the continuing validity of the decades-old site plan that had been approved by a planning board lacking any statutory power to grant certain variances. In Zahodiakin, supra, 8 N.J. at 395, the Court concluded that the governing body's grant of special variances to the plaintiff landowner by contract was "not a mere irregular exercise of the quasi-judicial function residing in the local authority[,]" but rather "[t]he proceeding was wholly beyond the [MLUL]." We see a qualitative difference between those cases and the facts presented here.
The MLUL defines a GDP as "a comprehensive plan for the development of a planned development." N.J.S.A. 40:55D-4. "The planned development shall be developed in accordance with the [GDP] approved by the planning board notwithstanding any provisions of [the MLUL]." N.J.S.A. 40:55D-45.1(a) (emphasis added). N.J.S.A. 40:55D-45.1(b) provides:
A "planned development" is in turn defined by reference to various types of developments, each of which is defined by the MLUL. N.J.S.A. 40:55D-6.
The term of the effect of the [GDP] approval shall be determined by the planning board using the guidelines set forth in subsection c. of this section, except that the term of the effect of the approval shall not exceed 20 years from the date upon which the developer receives final approval of the first section of the planned development. . . .In construing this section, we have said that "[t]he developer is protected from zoning changes for a period to be set by the planning board, not to exceed twenty years." Citizens United to Protect the Maurice River and Its Tributaries, Inc. v. City of Millville Planning Bd., 395 N.J. Super. 434, 446 (App. Div. 2007) (emphasis added).
[(Emphasis added).]
Subsection (c) provides that "[i]n making its determination regarding the duration of the effect of approval of the development plan," a planning board "shall consider" a variety of factors, including "the timing schedule to be followed in completing the development and the likelihood of its fulfillment, the developer's capability of completing the proposed development, and the contents of the general development plan and any conditions which the planning board attaches to the approval thereof." N.J.S.A. 40:55D-45.1(c) (emphasis added).
These provisions were part of comprehensive legislation adopted in 1987, see L. 1987, c. 129, that also permitted municipalities to enact ordinances containing discretionary provisions specific to planned developments. N.J.S.A. 40:55D-39(c). Such ordinances may confer upon the planning board the authority "to grant [GDP] approval to provide the increased flexibility desirable to promote mutual agreement between the applicant and the planning board on the basic scheme of a planned development." N.J.S.A. 40:55D-39(c)(1) (emphasis added); Citizens United, supra, 395 N.J. Super. at 447; see also Cox & Koenig, N.J. Zoning and Land Use Administration 299-303 (2015). In addressing these amendments to the MLUL, we have said that "the entire GDP process is intended to be general in nature and to provide the increased flexibility desirable to promote mutual agreement between a developer and planning board regarding the basic scheme of a planned development." Citizens United, supra, 395 N.J. Super. at 448 (emphasis added).
Notably, although the MLUL authorizes the municipality in the exercise of its discretion to adopt ordinances regarding planned developments, the MLUL does not expressly permit the municipality to limit the term of a GDP. N.J.S.A. 40:55D-39(c). The only reference in the MLUL to the term of a GDP is contained in N.J.S.A. 40:55D-45.1(b), which provides that the term "shall be determined by the planning board . . . not [to] exceed [twenty] years."
We have previously acknowledged the pre-eminent role played by a planning board in the GDP process. Citizens United, supra, 395 N.J. Super. at 446-51. For example, pursuant to N.J.S.A. 40:55D-45.4, only the planning board may approve the developer's modification of its "timing schedule," "tak[ing] into consideration prevailing economic and market conditions, anticipated and actual needs for residential units and nonresidential space within the municipality and the region, and the availability and capacity of public facilities to accommodate the proposed development." N.J.S.A. 40:55D-45.6(a) provides that "once a general development plan has been approved by the planning board, it may be amended or revised only upon application by the developer approved by the planning board." (Emphasis added). The planning board must approve "any variation" to the developer's previously-approved GDP. N.J.S.A. 40:55D-45.5(a).
Without addressing the judge's conclusion that the MLUL pre-empted the Township's GDP ordinance, it is clear that the Board's action in approving the GDP Extension was taken with a reasonable belief that the MLUL authorized its decision. There is nothing in the record to reflect that when the GDP Extension was passed, the Township, plaintiff, or anyone else objected to the extension as being an ultra vires action by the Board.
Notably, only the municipality may "terminate the approval" of a GDP upon a finding of "good cause." N.J.S.A. 40:55D-45.7(a); see also Centex Homes, LLC v. Twp. Comm., 372 N.J. Super. 186, 202-03 (Law Div. 2004). The Township, however, did the opposite. Months before the GDP Extension was adopted by the Board, and specifically in response to successful litigation brought by plaintiff, the Township adopted modifications to the Master Plan and PVD ordinance that permitted construction of the Shop Rite and anticipated future development of a modified PVD incorporating changes that had occurred since it was first adopted.
In short, we conclude that plaintiff's collateral challenge to the GDP extension was properly denied for reasons other than those expressed by the Law Division judge. See, e.g., El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 169 (App. Div. 2005). The effect of the March 2013 order was to permit Asbury to comply with the GDP Extension, which was never timely-challenged by plaintiff, by consummating condition 8(c). The judge rightly concluded that the Board's modification of condition 8(c) was ultra vires and timely-challenged by plaintiff. It does not follow that the adoption of the GDP Extension almost one year earlier was ultra vires. Because the Board's actions in adopting the GDP Extension were qualitatively different from the "utterly void" actions that permit an untimely collateral attack upon municipal agency action, we affirm the March 2013 order that is the subject of A-3793-12.
III.
As noted, while the appeal in A-3793-12 was pending, plaintiff moved before the Law Division for an order in aid of litigant's rights based upon the March 2013 order. Plaintiff contended that because the court had set aside the Board's resolutions approving the waivers as to Asbury's storm water plan for the Shoppes, the previously approved site plan was no longer valid. Under the Township's ordinances, an approved site plan was a necessary predicate to the issuance of construction permits. Plaintiff urged the judge, who was not the same judge that entered the March 2013 order, to enjoin any further construction or occupancy at the Shoppes.
Asbury argued that a validly approved storm water management system was in operation. It noted that in 2012, the Board had approved storm water waivers for the Shop Rite, and these approvals covered the entire Shoppes site and superseded the approvals voided by the March 2013 order.
After considering oral argument, the judge issued a written decision. He concluded that, despite the pending appeal, the Law Division had jurisdiction to entertain the motion pursuant Rule 2:9-1(a). That Rule provides that despite the Appellate Division's exclusive "supervision and control of the proceedings on appeal, . . . [t]he trial court . . . shall have continuing jurisdiction to enforce judgments and orders pursuant to [Rule] 1:10 and as otherwise provided." Ibid.
The judge noted that the Township had not taken any action of its own accord to stop construction or stay the issuance of building permits or certificates of occupancy, and he mused that plaintiff should have first sought enforcement by the Township's zoning officer for any ordinance violation. The judge also faulted plaintiff for not challenging the 2012 Shop Rite approvals, noting that such a challenge would have provided a more complete record for review, and that competing certifications filed by the parties were inadequate grounds for the entry of injunctive relief. The judge denied plaintiff's motion and entered the October 25, 2013 order under review. Plaintiff's notice of appeal was filed in December 2013.
In November and December 2013, plaintiff requested the issuance of a stop work order preventing any construction and occupancy of the Shoppes from the Township's Construction Official. After that request was denied, in February 2014, plaintiff filed a complaint in lieu of prerogative writs in the Law Division seeking a declaration that the Shoppes site plan approval was void, and an order requiring the Township to issue a "stop work/occupancy order precluding any further construction of or occupancy of the retail shopping center . . . and revoking any prior building permits or certificates of occupancy."
We take judicial notice of an order entered on June 9, 2014 that dismissed plaintiff's complaint in lieu of prerogative writs. --------
Plaintiff contends the judge should have granted its motion in aid of litigant's rights because without valid, approved storm water management plans in place, construction and occupancy of the Shoppes was unlawful. Asbury responds by arguing the judge correctly reasoned plaintiff had not exhausted its administrative remedies and reiterates that a valid, approved plan was in place because there was essentially one, unified storm water management plan approved during Shop Rite's 2012 application.
Initially, we agree with plaintiff that Asbury misconstrues the effect of the Board's approvals regarding the Shop Rite application. Under sections 64-31(C)(1)(a) and 64-31.8(A) and (B) of the Township ordinance, site plan approvals are site specific. See also Cox & Koenig, supra, at 495 ("[A] developer who obtains approval of a [GDP] must submit for each section or phase a conventional application for either subdivision or site plan approval . . . .").
However, plaintiff's complaint in the Law Division specifically sought injunctive relief. Despite voiding the resolution approving the waivers as to the Shoppes, the March 2013 order "denied and dismissed" plaintiff's other claims. Plaintiff's appeal in A-3793-12 did not challenge the dismissal of its claim for injunctive relief.
Instead, plaintiff sought the very same relief by way of a motion to enforce litigant's rights. Rule 1:10-3, which authorizes such a motion, applies to parties who "willfully fail to comply with an order or judgment." Id.; Loigman v. Comm. Twp., 308 N.J. Super. 500, 503 (App. Div. 1998). Prior to granting a motion in aid of litigant's rights, the court must find that the defendant has willfully "failed to comply with [an] order and that the court's assistance is necessary to secure compliance." N.J. Dep't of Envtl. Prot. v. Mazza and Sons, 406 N.J. Super. 13, 29 (App. Div. 2009); Hynes v. Clarke, 297 N.J. Super. 44, 57 (App. Div. 1997). "The scope of relief in a motion in aid of litigants' rights is limited to remediation of the violation of a court order." Abbott ex rel. Abbott v. Burke, 206 N.J. 332, 371 (2011).
It follows that since plaintiff's claim for injunctive relief was denied and dismissed pursuant to the March 2013 order, any attempt to secure the same relief pursuant to Rule 1:10-3 was properly denied. The motion did not seek a remedy for Asbury's willful violation of the March 2013 order. Moreover, given the failure to establish any grounds for exception to the exclusivity of appellate jurisdiction provided by Rule 2:9-1(a), plaintiff's motion should not have been considered at all.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION