SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1834-96T5
ALAN 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.
______________________________________
Argued September 22, 1997 - Decided December
2, 1997
Before Judges Skillman, Eichen and Wertheimer.
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County.
Michele R. Donato argued the cause for
appellants.
Wayne C. Streitz argued the cause for
respondent Deptford Township Planning Board
(Ware, Streitz and Thompson, attorneys; Mr.
Streitz, of counsel and on the brief).
Patricia L. Talcott argued the cause for
respondent The Wolfson Group (Kaplin,
Stewart, Meloff, Reiter and Stein; Dilworth,
Paxson, Kalish and Kauffman; and Sherman,
Silverstein, Kohl, Rose and Podolsky,
attorneys; John Matheussen and Robert
Washburn, of counsel; Ms. Talcott, on the
brief).
Angelini, Viniar and Freedman, attorneys for respondent Township Council of Deptford (Carl
B. Viniar, filed a statement in lieu of
brief).
The opinion of the court was delivered by
SKILLMAN, J.A.D.
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 (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 (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. 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 (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. In
scheduling the final hearing, the court should consider the scope
of the administrative record and the amount of time required to
review that record.
Because our court rules and established practice contemplate
the previously described procedures for the early disposition of
prerogative writ actions which challenge quasi-judicial decisions
of local agencies, summary judgment is generally inappropriate in
such cases. Odabash v. Mayor of Dumont,
65 N.J. 115, 121 n.4
(1974); see also Pressler, Current N.J. Court Rules, comment on
R. 4:46-2, at 1362 (1998). However, there are some exceptions to
this general rule. For example, if a defendant asserts that a
prerogative writ action was filed beyond the time allowed by Rule
4:69-6, this defense, which ordinarily can be ruled upon without
reviewing the entire administrative record, may be raised by a
motion for summary judgment. See Brunetti v. Borough of New
Milford,
68 N.J. 576, 584-85 (1975). Moreover, where a
prerogative writ action challenges governmental action which is
not based on an administrative record developed in a quasi-judicial hearing or seeks performance of a ministerial duty, the
usual procedures for the disposition of civil actions, including
summary judgment practice, may be employed. See R. 4:69-2;
Mitchell v. City of Somers Point,
281 N.J. Super. 492, 500 (App.
Div. 1994).
Under these procedures governing prerogative writ actions,
it was appropriate for the trial court to entertain the part of
Wolfson's motion which sought dismissal on the basis of the
untimeliness of the count of plaintiffs' complaint challenging
the validity of the ordinance rezoning Wolfson's property.
However, the court should have refused even to consider the part
of Wolfson's motion which sought summary judgment as to the
counts of plaintiffs' complaint challenging the grant of site
plan approval. Although Wolfson argued that the Planning Board
had given adequate consideration to traffic, environmental and
drainage issues and had afforded the public a sufficient
opportunity to be heard, and consequently that its decision was
not arbitrary, capricious or unreasonable, Wolfson's moving
papers were not accompanied by a transcript of the proceedings
before the Planning Board. In addition, Wolfson's moving papers
did not indicate that the documents submitted to the court were
the same documents which had been submitted to the Planning
Board. Moreover, plaintiffs' opposition papers alleged that the
Planning Board had failed to give adequate consideration to the
traffic, stormwater management, and environmental problems posed
by Wolfson's development project as well as the adverse impact it
would have on the adjoining residential neighborhood. Plaintiffs
also alleged that they had been deprived of the opportunity to
present the report and testimony of a professional planner who
they retained to review Wolfson's site plan application. Thus, a
review of the complete record of the proceedings before the
Planning Board, including a transcript of the hearings, was
required to determine whether the Planning Board's findings are
adequately supported by the record and whether it afforded
opponents of Wolfson's application a fair opportunity to present
evidence and be heard. Because the trial court granted Wolfson's
motion for summary judgment without reviewing the complete
administrative record, its decision must be reversed.
Although Rule 4:69-6(a) provides that "[n]o action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing or relief claimed," Rule 4:69-6(c) authorizes the court to enlarge this period of time "where it is manifest that the interest of justice so requires." An enlargement of the time for filing a prerogative writ action is recognized to serve "the interest of justice" in 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." Reilly v. Brice, 109 N.J. 555, 558 (1988) (quoting Brunetti v. Borough of New Milford, supra, 68 N.J. at 586). When a case falls within one of these categories, the court may grant even a very substantial enlargement of the time in order to afford affected parties an opportunity to challenge the alleged unlawful governmental action. See, e.g. Damurjian v. Board of Adjustment of Colts Neck, 299 N.J. Super. 84, 97-99 (App. Div. 1997) (four years); Wolf v. Mayor of Shrewsbury, 182 N.J. Super. 289, 296 (App. Div. 1981) (one year), certif. denied, 89 N.J. 440 (1982); Ocean County Bd. of Realtors v. Borough of Beachwood, 248 N.J. Super. 241, 247-48 (Law Div. 1991) (seven years).
Plaintiffs sought an extension of time for their challenge to the ordinance rezoning the Wolfson property from Office Campus
to Town Center on the ground that it involves "important public
rather than private interests which require adjudication."
Reilly v. Brice, supra, 109 N.J. at 558. Our courts have found a
sufficient public interest to justify an extension of time for
filing a prerogative writ action in a variety of circumstances,
including challenges to the validity of ordinances on the ground
that they were not adopted in conformity with the applicable
statutory requirements. See, id. at 560-61; Cervase v. Kawaida
Towers, Inc.,
124 N.J. Super. 547, 569 (Ch. Div. 1973), aff'd
o.b.,
129 N.J. Super. 124 (App. Div. 1976); Wolf v. Borough of
Shrewsbury, supra, 182 N.J. Super. at 296; Catalano v. Pemberton
Township Bd. of Adjustment,
60 N.J. Super. 82, 95-97 (App. Div.
1960).
We conclude that the trial court erred in ruling that
plaintiffs' challenge to the ordinance rezoning Wolfson's
property was a private rather than a public dispute. The record
clearly indicates that the development of Wolfson's property in
accordance with the change in zoning from Office Campus to Town
Center would have a substantial impact upon residents of the
adjoining neighborhood. In addition, such development would have
a substantial impact upon the flow of traffic on Highway 41 and
result in a loss of public access to nature trails. The claimed
benefits of the rezoning, such as increased shopping facilities,
employment opportunities and tax ratables, are also a matter of
broad public interest. The extent of the public interest in this
matter is underscored by the fact that the rezoning of Wolfson's
property was a central issue in the municipal election held two
months after adoption of the ordinance and that the members of
the council who voted for the change were defeated by candidates
committed to repealing the ordinance. We also note that the
primary basis of plaintiffs' challenge to the validity of the
ordinance -- that it violated N.J.S.A. 40:55D-62(a) because it
was not substantially consistent with the land use element of the
master plan -- is similar to the claims that zoning ordinances
had been adopted in violation of the applicable land use
legislation which we found to justify extensions of time in Wolf
and Catalano.
Moreover, this is not a case in which the public interest in
an adjudication of the merits of plaintiffs' claims is outweighed
by "the policy of repose expressed in the forty-five day rule."
Reilly v. Brice, supra, 109 N.J. at 559. Although plaintiffs did
not file a prerogative writ action challenging the rezoning of
Wolfson's property within forty-five days of publication of the
ordinance, they did immediately mount a well-publicized political
campaign to elect candidates for municipal council who were
committed to repeal of the ordinance. Consequently, when these
candidates were elected Wolfson should have been on notice that
the rezoning of its property for commercial development was in
jeopardy. Nevertheless, Wolfson proceeded to file a site plan
application and press for early action by the Planning Board.
Furthermore, since the Township Council introduced an ordinance
providing for the return of the zoning of Wolfson's property to
Office Campus prior to the commencement of the hearings before
the Planning Board, Wolfson was aware that the rezoning was
imminent, and that it would be able to obtain site plan approval
only if the Planning Board completed hearings and rendered a
decision before the ordinance became effective.See footnote 1 Under these
circumstances, there is no basis for concluding that Wolfson
justifiably relied upon plaintiffs' failure to file suit within
forty-five days or that Wolfson's interest in repose outweighs
the public interest in a decision on the merits of plaintiffs'
claims.
Finally, we consider it necessary to comment upon the
Planning Board's role in this matter. The Municipal Land Use Law
confers the responsibility for determining a municipality's land
use plan upon the governing body, composed of the people's
elected representatives. N.J.S.A. 40:55D-62. A planning board
is a subordinate municipal agency whose role is limited "to
effectuat[ing] the goals of the community as expressed through
its zoning and planning ordinances." Kaufman v. Planning Bd. for
Township of Warren,
110 N.J. 551, 564 (1988); see also PRB
Enters., Inc. v. South Brunswick Planning Bd.,
105 N.J. 1, 7-8
(1987). Consequently, when a governing body proposes to amend a
zoning ordinance, a planning board should not rush to grant
development approvals under existing zoning before the amendments
to the municipality's land use ordinance can take effect. In
this case the Planning Board easily could have deferred hearings
on Wolfson's site plan application for a brief period to
determine whether the proposed ordinance rezoning Wolfson's
property would be adopted. Instead, it attempted to preempt the
proposed rezoning by completing its review of Wolfson's
application before the Township Council could act and by
subsequently granting site plan approval after the amendment to
the zoning ordinance had been adopted but before it became
effective. Therefore, we note our disapproval of the Planning
Board's attempt to usurp the Township Council's preeminent role
in determining the municipality's land use plan.
Accordingly, we reverse the summary judgment dismissing
plaintiffs' complaint and remand the case to the trial court for
further proceedings in conformity with this opinion.
Footnote: 1 N.J.S.A. 40:55D-49 provides that "the general terms and conditions on which preliminary [site] approval was granted shall not be changed" for a period of three years following such approval except for provisions relating to "public health and safety." Plaintiffs have not disputed that if the prior zoning ordinance were valid and the record supported the Planning Board's approval of Wolfson's application, its site plan would be entitled to protection under this section.