SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued February 4, 2003 -- Decided April 28, 2003
LaVecchia, J., writing for a majority of the Court.
The issue before the Court is whether the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to –129, authorizes a municipality to adopt a zoning ordinance that requires an applicant to seek final subdivision approval within three years of the grant of approval and any subsequent permissible extension.
In September 1994, the Borough of Point Pleasant Beach Planning Board (Planning Board)
granted an application for Preliminary Major Subdivision Approval and Bulk Variances in respect
of the creation of fourteen single-family lots on certain property located in the
Borough of Point Pleasant Beach (Borough). Borough Ordinance 19-14.5c provides for preliminary subdivision
approval for a period of three years. A corresponding section of the ordinance,
section 19-14.7a, requires that an application for final approval be submitted within three
years (plus approved extensions) of the grant of preliminary approval to a site
plan or major subdivision.
During the three-year period following the grant of preliminary approval, the owner of
the property in question did not submit either a final plat or an
application for an extension of preliminary approval. Four years after the grant of
preliminary approval, D.L. Real Estate Holdings, LLC (D.L.) acquired the property. About one
year later, D.L. applied for final major subdivision approval. The Planning Board denied
the application based on Ordinance 19-14.7a, noting in its Resolution that it was
not reaching the question whether there was compliance with the substantive requirements of
the preliminary subdivision approval.
D.L. filed an action in lieu of prerogative writs against the Planning Board
and the Borough, contending that Ordinance 19-14.7a was invalid because the MLUL does
not authorize a municipality to limit a grant of preliminary subdivision approval to
three years. The parties moved for summary judgment. The trial court upheld the
ordinance and dismissed the complaint, concluding that the ordinance was not inconsistent with
the MLUL and that it furthered the public policy of protecting the municipality
from the revival of dormant applications.
On appeal, the Appellate Division reversed, holding that a municipality may not impose
an expiration date on the grant of preliminary subdivision approval. The Appellate Division
pointed to the Supreme Court’s discussion of preliminary approvals in Palatine I v.
Planning Board of Township of Montville in reaching its determination that the MLUL
does not limit the life of preliminary subdivision approval and, therefore, an ordinance,
such as the Borough’s, imposing a time period for final approval submission would
contradict the MLUL.
The Supreme Court granted certification.
HELD: A municipality has the authority, by fair implication of the Municipal Land
Use Law, to state affirmatively that an application for final approval must be
sought within three years of the grant of preliminary subdivision approval and any
extensions granted beyond that initial period. The municipality’s power to set the terms
under which final approval must be sought is a matter of fair implication
under the statutory scheme and its exercise does not impinge on any of
the rights expressly conferred by the statute.
1. The MLUL authorizes a municipality to enact a master plan containing a
land use element and to adopt zoning ordinances in furtherance of its plan.
Under the MLUL, a municipality must promulgate ordinances that set forth provisions for
the submission and processing of applications for approval. The Borough’s ordinance in that
respect clearly provides that no application for final approval will be accepted unless
it is submitted within three years (plus extensions) of the grant of preliminary
approval. The question to be answered is whether this requirement of the ordinance
is inconsistent with the MLUL or tramples any right accorded under the MLUL
to a developer who obtains a preliminary approval. (Pp. 5-8)
2. Pursuant to the State Constitution, municipal powers expressly conferred by the Legislature,
as well as to those fairly inferred, incident or essential thereto are to
be liberally construed. Accordingly, although the MLUL does not affirmatively state that a
municipality may, by ordinance, set an expiration date for a preliminary approval, Ordinance
19-14.7a is well within the Borough’s express and fairly implied delegated power. The
ordinance does not impinge on any right conferred by statute. Moreover, the MLUL
does not confer on preliminary approval a “right” to perpetual life absent a
zoning change, thereby preventing a municipality from setting a time limit for final
approval submission. The exercise of the Borough’s municipal authority in setting a time
limit for submission of final approval is not inconsistent with the MLUL, especially
when it tracks the same protections given the developer under the statute’s conferral
of rights. The Borough’s determination not to allow more is a power fairly
inferred from the statutory scheme. (Pp. 8-12)
3. The Appellate Division based its determination on dicta in Palatine I. The
broad language in that opinion concerning preliminary approval has served to support an
interpretation of the MLUL that grants greater rights to a developer than those
conferred by statute and ultimately has led to the argument advanced by D.L.
here. The Court rejects that argument and to the extent that Palatine I
supports a conclusion contrary to it’s holding, the Court disapproves its language. (Pp.12-14)
4. The Borough’s ordinance encourages developer action on preliminary approval within the three-year
or extended five-year period. That time frame advances the public interest in prompt
development of land in a manner consistent with the grant of preliminary approval
and furthers the municipality’s ability to plan effectively. (Pp. 14-16)
Judgment of the Appellate Division is REVERSED.
JUSTICE VERNIERO, dissenting, in which JUSTICES LONG and ALBIN join, is of the
view that, based on the premise that the Legislature designed the MLUL to
“require consistency, uniformity, and predictability in the subdivision-approval process,” a better reading of
the statute is that, without an explicit statutory grant of authority, municipalities cannot
limit an applicant’s preliminary subdivision approval in the manner sought here.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN and ZAZZALI join in JUSTICE LaVECCHIA’s opinion.
JUSTICE VERNIERO filed a separate dissenting opinion, in which JUSTICES LONG and ALBIN
join.
SUPREME COURT OF NEW JERSEY
A-152/
153 September Term 2001
D.L. REAL ESTATE HOLDINGS,
L.L.C., a Limited Liability
Company of the State of New
Jersey,
Plaintiff-Respondent,
v.
POINT PLEASANT BEACH PLANNING
BOARD and the BOROUGH OF
POINT PLEASANT BEACH, a
municipal corporation of the
State of New Jersey,
Defendants-Appellants.
Argued February 4, 2003 – Decided April 28, 2003
On certification to the Superior Court, Appellate Division.
John J. Jackson, III argued the cause for appellant Point Pleasant Beach Planning
Board (King, Kitrick, Jackson & Troncone, attorneys).
Michael J. McKenna argued the cause for appellant Borough of Point Pleasant Beach
(Hiering, Gannon and McKenna, attorneys).
Steven A. Pardes argued the cause for respondent (Sinn, Fitzsimmons, Cantoli, West &
Pardes, attorneys; Dennis J. Cantoli, on the letter in lieu of brief).
Stephen M. Eisdorfer submitted a brief on behalf of amicus curiae, New Jersey
Builders Association (Hill Wallack, attorneys; Mr. Eisdorfer and Henry T. Chou, on the
brief).
The opinion of the Court was delivered by
LaVECCHIA, J.
This appeal involves interpretation of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1
to –129. The question is whether the MLUL authorizes a municipality to adopt
a zoning ordinance that requires an applicant to seek final subdivision approval within
three years of the grant of preliminary approval and any extension thereof. We
conclude that adoption of such an ordinance is a valid exercise of municipal
authority, consistent with the MLUL and, therefore, reverse the contrary conclusion of the
Appellate Division below.
In September, 1994, the Point Pleasant Beach Planning Board (Planning Board) granted an application for Preliminary Major Subdivision Approval and Bulk Variances involving the creation of fourteen single-family lots on property located at Block 179.02, lots 10, 11, and 12 in the Borough of Point Pleasant Beach (Borough). The effect of that approval was set forth in Borough Ordinance 19-14.5c:
Preliminary approval shall confer upon the applicant the following rights for a three-year period from the date of the preliminary approval:
1. That the general terms and conditions on which preliminary approval was granted
shall not be changed, including but not limited to, use requirements; layout and
design standards for streets, curbs and sidewalks; lot size; yard dimensions; and off-tract
improvements; and
2. That the applicant may submit for final approval, on or before the
expiration date of preliminary approval, the whole or a section or sections of
the preliminary subdivision; and
3. That the applicant may apply for and the board may grant extensions
on such preliminary approval for additional periods of at least one year, but
not to exceed a total extension of two years, provided that if the
design standards have been revised by ordinance, such revised standards may govern.
A corresponding section of the ordinance concerning final approvals required submission of
a final plat for all major subdivision and development proposals requiring site plan
review within three years after the date of the grant of preliminary approval,
or its extension. Borough of Point Pleasant Beach, N.J., Ordinances § 19-14.7a (“Ordinance”). Receipt
of final approval conferred on an applicant, for two years, certain rights, including
that “the zoning requirements applicable to the preliminary approval first granted and all
other rights conferred upon the developer, whether conditionally or otherwise, shall not be
changed,” and that “if the standards prescribed for final approval” were met, the
developer could apply for three extensions of one year. Ordinance 19-14.7c.
During the three-year period following the grant of preliminary approval, the owner of
the property in issue did not submit either a final plat or an
application for an extension of preliminary approval. Four years after the grant of
preliminary approval, D.L. Real Estate Holdings, LLC (“D.L.”) acquired the property. About a
year later, on October 18, 1999, D.L. applied for final major subdivision approval.
The Planning Board denied the application based on Ordinance 19-14.7a, noting in its
Resolution that it was not reaching the question whether there was compliance with
the substantive requirements of the preliminary subdivision approval. D.L. thereupon filed this action
in lieu of prerogative writs against the Planning Board and Borough, contending that
Ordinance 19-14.7a was invalid because the MLUL does not authorize a municipality to
limit the grant of a preliminary subdivision approval to three years.
Following the filing of cross motions for summary judgment by the parties, the
trial court upheld the ordinance and dismissed the complaint. The court determined that
the ordinance was not inconsistent with the MLUL, and that it furthered the
salutary public policy of protecting the municipality from the revival of dormant applications.
On appeal, the Appellate Division reversed in an unpublished opinion. The Appellate Division
held that a municipality may not impose an expiration date on the grant
of preliminary subdivision approval. Referencing this Court’s discussion of preliminary approvals in Palatine
I v. Planning Board of Township of Montville,
133 N.J. 546, 553 (1993),
the Appellate Division stated that the MLUL does not limit the life of
preliminary subdivision approval and, therefore, an ordinance imposing a time period for final
approval submission would “run afoul” of the MLUL.
We granted certification,
174 N.J. 193 (2002), and now reverse.
Enacted in 1975, the MLUL is the modern legislative delegation of zoning authority to municipalities. L. 1975, c. 291. It authorizes a municipality to enact a master plan containing a land use element and to adopt zoning ordinances in furtherance of its plan. See William Cox, New Jersey Zoning and Land Use Administration § 1-1 (2001) (“Cox, New Jersey Zoning”). The MLUL specifically allows municipalities to enact ordinances that require planning-board approval for major subdivisions, N.J.S.A. 40:55D-48a, and, also, to require site-plan review and approval. N.J.S.A. 40:55D-41. If a municipality does enact such procedures, the enabling ordinance must include provisions addressing certain topics. N.J.S.A. 40:55D-38. One is that the ordinance set forth “provisions for the submission and processing” of applications for approval. N.J.S.A. 40:55D-38a. The MLUL does not limit the permissible scope of municipal authority concerning application submission requirements or processing other than that the ordinance’s provision be “not inconsistent with other provisions” of the MLUL. Ibid. Other mandated provisions relate to substantive design standards for approval of a plan. N.J.S.A. 40:55D-38b(1)-(13) (requiring ordinance to ensure that plan conforms with other design requirements, such as, for example, street width and grade, water supply, drainage, shade trees, and soil erosion). The municipal ordinance also must include provisions relating to natural resources, traffic flow, landscaping and location of structures, exterior lighting, energy conservation, and recycling. N.J.S.A. 40:55D-41. See also N.J.S.A. 40:55D-39 (identifying additional discretionary provisions beyond review of tract's use, including regulation of off-tract improvements, protections to ensure completion of long-term development, and requiring proof of paid-up taxes).
As an encouragement to prompt consideration of applications, the MLUL authorizes automatic preliminary subdivision approval if a municipality does not act to grant or deny an application within the applicable mandatory time period, provided the proposed plan complies with both the municipal ordinance and the MLUL. N.J.S.A. 40:55D-48b and c. Nonetheless, some review is anticipated because even though a municipality’s preliminary review likely is based on a plat and engineering documents submitted in tentative form, terms and conditions may attach to a preliminary approval and their satisfaction will be required for final approval. See N.J.S.A. 40:55D-48a. See also Toll Bros., Inc. v. Township of Greenwich, 244 N.J. Super. 514, 519-20 (App. Div. 1990) (noting that in order to obtain final approval, applicant may be required to provide more detailed engineering and plat submissions to demonstrate fulfillment of all conditions imposed by preliminary approval).
Importantly, under the MLUL preliminary approval confers on the developer the following rights for three years:
a. That the general terms and conditions on which preliminary approval was granted shall not be changed . . . except that nothing herein shall be construed to prevent the municipality from modifying by ordinance such general terms and conditions of preliminary approval as relate to public health and safety;
b. That the applicant may submit for final approval on or before the
expiration date of preliminary approval the whole or a section or sections of
the preliminary subdivision plat or site plan, as the case may be; and
c. That the applicant may apply for and the planning board may grant
extensions on such preliminary approval for additional periods of at least 1 year
but not to exceed a total extension of 2 years, provided that if
the design standards have been revised by ordinance, such revised standards may govern.
III.
.
The Borough, by ordinance, has set forth requirements for the submission and processing of applications. The ordinance is clear: no application for final approval will be accepted unless it is submitted within three years (plus extensions) of the grant of preliminary approval to a site plan or major subdivision. The question here is whether the municipality can enact such an ordinance. The resolution of that issue requires a determination whether the Borough’s ordinance, enacted pursuant to its express power under N.J.S.A. 40:55D-38a, is inconsistent with the MLUL or tramples any right accorded thereunder to a developer who obtains a preliminary approval. If the ordinance does not have that effect, it is a lawful exercise of governmental authority.
Although municipal authority to regulate land use is limited to the extent the Legislature delegates such authority through the MLUL, Pizzo Mantin Group v. Township of Randolph, 137 N.J. 216, 223 (1994), the Constitution provides that that delegation of authority is to be “liberally construed” in a municipality’s favor. N.J. Const. art. IV, § 7, ¶ 11. Our statutory analysis is informed by the constitutional direction that we give liberal construction to municipal powers expressly conferred by the Legislature, as well as to those “of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by [the] Constitution or by law.” Ibid. Indeed, other municipal powers concerning zoning authority have been fairly inferred from the MLUL, or its predecessor, absent the statute’s express mention of the power. In Divan Builders, Inc. v. Planning Board of the Township of Wayne, 66 N.J. 582, 595 (1975), we upheld a zoning ordinance requiring off-site improvements as a condition of subdivision approval notwithstanding that the municipal planning statute in effect at the time made no specific reference to off-site improvements in the context of subdivision approval. Recognizing our obligation to construe liberally statutes concerning municipalities, we concluded that the challenged ordinance comported with the overall legislative purpose of imposing on the developer the costs of municipal improvements required by the developer's construction. Ibid. Ordinances that impose a time limit on the validity of a variance also have been upheld notwithstanding that the MLUL does not grant expressly that authority. See Ramsey Assocs., Inc. v. Bd. of Adjustment of the Borough of Bernardsville, 119 N.J. Super. 131, 133 (App. Div. 1972) (“[i]t is not unreasonable or improper to require a new application for a building permit or variance to be filed if construction pursuant to the permit or variance theretofore granted is not begun within the time limited by the ordinance”).
Notwithstanding that the MLUL does not affirmatively state that a municipality may, by ordinance, set an expiration date for a preliminary approval, we find Ordinance 19-14.7a to be well within the Borough's express and fairly implied delegated authority. As can be seen by a juxtaposition of the two, the ordinance fairly mirrors the text of N.J.S.A. 40:55D-49, insofar as the ordinance details the rights conferred on a developer on the grant of preliminary approval. The text departs from the statute only in that the ordinance affirmatively states that a developer cannot apply for final approval based on the granted terms and conditions of a preliminary approval if a final application is not submitted within three years of the grant of preliminary approval, unless extended. N.J.S.A. 40:55D-49b only confers the "right" to apply for final approval based on the terms and conditions of preliminary approval for a period of three years, unless extended. Subsection b expressly refers to the concept of an "expiration date" for preliminary approval, which obviously cannot be less than the three years plus extensions that section forty-nine expressly authorizes. Although we need not decide the question, it is arguable that by using the term "expiration date" in N.J.S.A. 40:55D-49b the Legislature may well have intended that preliminary approval have a specific time period that "expires" upon the conclusion of the three years plus the two one-year extensions. See also N.J.S.A. 40:55D-52 (stating that "the granting of final approval terminates the time period of preliminary approval . . . .").
We do not perceive the Borough ordinance to be inconsistent with the MLUL. The ordinance makes clear that an application for final approval will not be accepted beyond the protected time period for submission mandated in the statute and, therefore, does not impinge on any right conferred by statute. In setting out its process and requirements for final approval, the Borough simply declines to give a developer further rights than those expressly conferred under N.J.S.A. 40:55D-49. Under the ordinance, as in the MLUL, the developer is informed that one of the rights attendant to the grant of preliminary approval is the right to apply for final approval within three years, as extended. No equivalent guarantee is made in the MLUL for any period exceeding three years (plus the possible two one-year extensions). Stated differently, the MLUL does not confer on preliminary approval a “right” to perpetual life absent an adverse zoning change, thereby preventing a municipality from setting a time limit for final approval submission. The exercise of municipal authority here plainly is not inconsistent with the MLUL when it tracks the same protections expressly afforded to a developer under the statute’s conferral of rights. Nothing in the MLUL requires a municipality to go further. The Borough’s determination not to is certainly a power fairly inferred from the statutory scheme.
The Appellate Division based its contrary determination on dicta in an earlier decision of our Court. In Palatine I v. Planning Board of the Township of Montville, 133 N.J. 546 (1993), we discussed the nature of preliminary site-plan approval under the MLUL and stated that
[t]he approval itself is valid indefinitely, but its effect of insulating the holder from changes in the zoning laws is limited to the specific term of years. If the applicable zoning laws have not changed, the holder of preliminary approval may continue past the five-year period without obtaining further approvals. However, if the zoning laws have changed, then after the five-year period of protection has elapsed, the municipality may enforce those new regulations against the holder of preliminary approval.
§ 15-5.2).]
Palatine I involved a municipality whose ordinance permitted the issuance of building permits to the holder of preliminary site plan approval. 133 N.J. at 553. In that setting we held that a builder may continue to build based on the permits issued pursuant to the grant of preliminary approval notwithstanding that the last period of protection from zoning changes had elapsed, so long as the project was not rendered impermissible as a result of any zoning ordinance changes. Id. at 553-54. The broad language employed in our discussion in Palatine I concerning preliminary approval has supported an interpretation of the MLUL that grants greater rights to a developer than those conferred by the statute and has led to the argument now advanced by D.L. in this appeal, namely, that a municipality may not require a developer to submit for final approval within the statutory time period of protection for preliminary approval. We reject that argument and to the extent that Palatine I supports a contrary conclusion, we disapprove its language. We note that in his treatise on zoning law, Cox has interpreted Palatine's holding more narrowly, emphasizing its unique facts:
[I]n those municipalities which by ordinance permit the holder of a preliminary site plan approval to obtain building permits, even after the last period of extension has elapsed, the preliminary approval itself may not lapse. What has ended is the developer’s protection from the non-safety-related ordinance changes. The developer may still build in accordance with the approval unless and until the project has become impermissible in some regard because of zoning law change. See Palatine I v. Planning Bd., 133 N.J. 546, 553-554 (1993).
***
In those municipalities that require final approval prior to issuance of building permits, however, failure to obtain final approval within three years after obtaining preliminary approval, or within the period of any valid extensions approved by the board thereafter, would result in the lapse of the preliminary approval and, therefore, the inability of the developer to obtain a final approval because an application for same was not submitted within the time (three years plus periods of valid extensions) required by the statute.
We conclude that a municipality does have the authority, by fair implication from the MLUL, to state affirmatively that an application for final approval must be sought within three years of the grant of preliminary approval, and any extensions granted beyond that initial period. The municipality’s power to set, in this manner, the terms under which final approval must be sought is a matter of fair implication under the statutory scheme and its exercise does not truncate any of the rights expressly conferred by N.J.S.A. 40:55D-49.
The MLUL encourages “municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare.” N.J.S.A. 40:55D-2a. This Court has recognized that the legislative desire to give municipalities the ability to plan effectively was a fundamental goal of the MLUL. Kaufmann v. Planning Bd. for the Township of Warren, 110 N.J. 551, 557 (1988). In holding invalid a municipal grant of protection from zoning change that extended beyond the period provided by the MLUL, we commented in Kaufmann on the purpose of granting only a maximum of five years of protection from zoning changes to a grant of preliminary approval:
The Legislature could not have intended conditions imposed at inception to be considered as frozen indefinitely. Municipal authorities may well decide, by reason of experience, population growth or for any number of other valid reasons, that [preliminary approval] requirements should be upgraded . . . .[t]he Legislature certainly appreciated the importance of such possibilities and so must be said to have specified the three-year protective period for the developer’s benefit as an outside limit.
[Id. at 581.]
Here, the Borough’s ordinance encourages developer action on a preliminary approval within the three-year or extended five-year period. The time frame advances the public interest in prompt development of land in a manner consistent with the grant of preliminary approval, and through any permitted extensions of that period of approval, including mandated extensions. See N.J.S.A. 40:55D-49f. And, it furthers the municipality’s ability to plan effectively. It prevents the possibility that a future tentative “potential” development, based on an earlier preliminary subdivision approval, would forever affect planning decisions concerning development in other areas. In those municipalities that, as here, do not issue building permits on the basis of preliminary approval, the developer’s commitment to a development may not be evident until the application for final approval is advanced. The ordinance reduces that uncertainty.
The judgment of the Appellate Division is reversed.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, and ZAZZALI join in JUSTICE LaVECCHIA’s opinion. JUSTICE VERNIERO filed a separate dissenting opinion in which JUSTICES LONG and ALBIN join.
SUPREME COURT OF NEW JERSEY
A-152/ 153 September Term 2001
D.L. REAL ESTATE HOLDINGS,
L.L.C., a Limited Liability
Company of the State of New
Jersey,
Plaintiff-Respondent,
v.
POINT PLEASANT BEACH PLANNING
BOARD and the BOROUGH OF
POINT PLEASANT BEACH, a
municipal corporation of the
State of New Jersey,
Defendants-Appellants.
VERNIERO, J., dissenting.
The Court holds that the Borough of Point Pleasant Beach (Borough) is authorized
to limit the life of a preliminary major subdivision approval under the Municipal
Land Use Law, N.J.S.A. 40:55D-1 to –129 (MLUL). My disagreement with that holding
is anchored in the premise that the Legislature designed the MLUL “to require
consistency, uniformity, and predictability in the subdivision-approval process.” Pizzo Mantin Group v. Township
of Randolph,
137 N.J. 216, 229 (1994). In my view the better reading
of the statute is that in the absence of an explicit statutory grant
of authority, municipalities cannot limit an applicant’s preliminary subdivision approval in the manner
sought here.
The Court addressed a related question concerning the duration of preliminary site plan
approval in Palatine I v. Planning Board of Township of Montville,
133 N.J. 546, 553 (1993). We concluded that “the preliminary approval does not automatically expire,
but the statutory period of protection from adverse changes in zoning regulation does
expire.” Ibid. The statute treats site plan and subdivision approvals in a similar
fashion. The Appellate Division has explained:
These approvals do not ‘lapse’ as that term is ordinarily understood, although there
has existed a widespread understanding that such approvals do expire. William M. Cox,
N.J. Zoning and Land Use Administration, § 15-5.2 at 255 (1994). In 1993 the
Supreme Court clarified [in Palatine I] that the approvals are valid indefinitely, but
expire in the sense that after the period of statutory protection they are
not immune from newly-adopted land use requirements.
[MCG Assocs. v. DEP,
278 N.J. Super. 108, 127 (1994).]
There is a difference, of course, between whether the MLUL requires expiration of
approvals (it does not) and whether it permits municipalities to establish such expiration
dates (the question in this appeal). Because the MLUL is silent, its overriding
purpose guides my analysis. See New Jersey Builders, Owners and Managers Ass’n v.
Blair,
60 N.J. 330, 338 (1972) (instructing that when construing statute, courts must
seek to effectuate “fundamental purpose for which the legislation was enacted”). That purpose,
statewide uniformity of regulation, is better achieved by not permitting a municipality to
establish its own expiration timetable in these circumstances. Invalidating an existing application based
solely on a locally imposed expiration date is a significant act that should
be enforced only if the statute expressly authorizes it. See Taxpayers Ass’n of
Weymouth Township v. Weymouth Township,
80 N.J. 6, 20 (1976) (declaring that “municipalities
have no power to zone except as delegated to them by the Legislature”),
cert. denied sub nom.,
430 U.S. 977,
97 S. Ct. 1672,
52 L.
Ed.2d 373 (1977).
The so-called statutory period of protection refers to N.J.S.A. 40:55D-49, which is intended
as a safe harbor for applicants. The provision immunizes a developer for three
years (with possible extensions) from adverse zoning amendments passed subsequent to a municipality’s
approval of a preliminary subdivision or site plan application. Ibid. It addresses the
Borough’s valid concern that revival of a “dormant” application with unlimited life can
harm a municipality whose land-use characteristics have changed since the project’s initial approval
date. In that circumstance, a municipality can amend its zoning ordinances to respond
to its changed planning needs. Once an application falls outside the statutory period
of protection, those amendments would have the same practical effect as a project
expiration date. The builder would have to comply with the new requirements or
risk rejection of the application’s final approval. Palatine I, supra, 133 N.J. at
554; MCG, supra, 278 N.J. Super. at 127.
Revising an ordinance or zoning rule obviously requires some effort. I disagree with
the notion, however, that the amendatory process is too burdensome or might fall
short of addressing a municipality’s legitimate needs. The MLUL envisions that very process.
The statute expressly prohibits imposition of changes in use requirements, layout and design
standards for streets, curbs and sidewalks, lot size, yard dimensions and off-tract improvements
during the three-year period of protection. N.J.S.A. 40:55D-49. Importantly, a municipality is authorized
to enforce those changes once the period of protection has expired, thus enabling
it to regulate significantly even a previously approved project.
The MLUL also provides in the same provision that “the applicant may submit
for final approval on or before the expiration date of preliminary approval the
whole or a section or sections of the preliminary subdivision plat or site
plan, as the case may be[.]” N.J.S.A. 40:55D-49 (emphasis added). I am not
persuaded by the Borough’s argument that the statute’s highlighted language contemplates that a
municipality may set an expiration date on its prior approvals. Instead, I construe
the term “expiration date” to mean the expiration of the period of statutory
protection, which is the central object of the provision within which the term
appears.
I submit that the Appellate Division relied on Palatine I as it did
because Palatine I’s analytical framework is at odds with the ordinance before us.
Although Palatine I does not forbid directly the regulation at issue here, the
logical inference from that decision, and indeed from the MLUL itself, strongly suggests
that the ordinance is invalid. That is because if the Legislature had intended
to empower municipalities as the Borough contends, then it would have structured the
MLUL’s safe-harbor provision quite differently. The statute simply would authorize a municipality to
extinguish an application no earlier than three years after its initial approval, provided
that it imposed no new requirements on the applicant during the interim three-year
period.
Moreover, plaintiff contends, and the Borough does not dispute, that “there have been
no changes in the zoning ordinances of the Borough for the almost six
years that have passed between preliminary approval and the filing of the application
for final major subdivision approval.” The import of that observation is twofold. First,
when a municipality makes no changes to its zoning rules we can presume
that it is satisfied with development in a given area. Second, when there
has been no need for regulatory changes and the municipality nonetheless seeks to
rescind its prior approval for no reason other than its deadline has passed,
that action takes on an air of arbitrariness that is prohibited under the
MLUL.
At bottom, the MLUL embodies a careful bargain between developers and municipalities. Developers
receive the safe-harbor protections found in N.J.S.A. 40:55D-49 and, in exchange, municipalities retain
considerable leeway in being able to amend their zoning requirements and to enforce
those amendments once the safe-harbor period has elapsed. Today’s decision alters that balance
by recognizing the power of municipalities to establish expiration dates for preliminary approvals,
although the MLUL contains no such explicit authority. In contrast, my reading of
the statute would encourage municipalities to update their zoning regulations if they harbor
true concerns that existing “dormant” applications are inconsistent with contemporary planning needs. That,
in turn, would have the salutary effect of adding greater transparency to the
process.
In sum, municipalities now may impose individual expiration dates on development projects as
they deem fit, subject only to the limitations found under N.J.S.A. 40:55D-49. Such
balkanization of the zoning power likely will lead to increased costs and uncertainty
as applicants attempt to comply with idiosyncratic deadlines in an untold number of
municipalities. Put simply, requiring an applicant to submit to a second approval process
merely because an artificial deadline has passed will add expense and cause delay
to the process, with little or no benefit from a planning perspective. That
result is inconsistent with the MLUL’s central purpose and, therefore, should be prohibited.
Accordingly, I respectfully dissent. I would affirm the judgment of the Appellate Division
in all respects.
Justices Long and Albin join in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-152/153 SEPTEMBER TERM 2001
ON CERTIFICATION TO Appellate Division, Superior Court
D.L. REAL ESTATE HOLDINGS,
L.L.C., a Limited Liability
Company of the State of New
Jersey,
Plaintiff-Respondent
v.
POINT PLEASANT BEACH PLANNING
BOARD and the BOROUGH OF
POINT PLEASANT BEACH, a
Municipal corporation of the
State of New Jersey,
Defendants-Appellants.
DECIDED April 28, 2003
Chief Justice Poritz PRESIDING
OPINION BY Justice LaVecchia
CONCURRING OPINION BY
DISSENTING OPINION BY Justice Verniero
CHECKLIST