Bulletin Board Magazine 2021 Volume 1

Planning Board review was required pursuant to the MLUL for confirmation of compliance with the Township Master Plan prior to adoption. The ordinance was adopted to govern management of soil and fill material in connection with development projects. In essence, it required anyone planning to import or export fill material in quantities exceeding a certain threshold first obtain a permit. NJBA and SBACNJ (along with the individual builders) filed action in June 2020 challenging the ordinance on the basis that the Township exceeded its authority both procedurally and substantively, and that the ordinance went beyond what was envisioned by NJDEP in creating a model ordinance for such soil fill import/export. While suit was pending, the Associations worked with NJDEP to effectuate NJDEP's release of a modified model soil fill ordinance. The Associations intend to continue to work with the Township in an effort to ensure that any redraft ordinance addresses the substantive concerns raised with respect to the nullified ordinance. COURT UPHOLDS SETTLEMENT APPROVING DEVELOPMENT In a recent Appellate Division decision, Plaintiff challenged the Borough of Franklin’s (“Borough”) and its’ Planning Board’s (“Board”) approval of a settlement agreement related to the development of property (“Property”). Plaintiff alleged that the Borough and Board failed to comply with Whispering Woods at Bamm Hollow, Inc. v. Middletown Township Planning Board (“WW”), which allows for a public hearing to approve a settlement of a prerogative writ action by a planning or a zoning board. The court affirmed the approval of the settlement. The Board had approved a prior owner’s plan to construct condominium and townhouse units on the Property. The Property was later sold, Moss v. Borough of Franklin

but the project was not constructed because the Borough rezoned the area for single family homes only. A subsequent owner filed an action against the Borough after being advised that the approvals had expired. In 2007, the parties settled the action pursuant to a consent order, under which the development of certain age-restricted housing units on the Property was permitted, and the Borough amended its zoning ordinances to create a new district to accommodate the project. However, the project remained unbuilt. In 2017, the new owners (“Owners”) of the Property entered into a consent order with the Borough to amend the 2007 consent order, and authorize the construction of certain units and remove all age restriction requirements. The Borough adopted a new ordinance allowing for the development. Despite this action, the Board denied Owners’ site plan application, and Owners filed a complaint challenging the decision. The action was resolved in 2019 by settlement agreement (“Agreement”). Under the Agreement, Owners agreed to submit a revised site plan application and the Board agreed to adopt a corresponding resolution. The Agreement also provided that a public hearing would be held per WW for approval of the Agreement and the site plan application. Prior to entering into the Agreement, the Borough provided public notice of the meeting to discuss the Agreement. At the hearing, the Agreement was discussed prior to the council voting to authorize the execution of the Agreement. In addition, Owners submitted a revised site plan application to the Board pursuant to the Agreement. A public hearing on the application was held by the Board and the Board approved the application. Plaintiff filed a complaint in lieu of prerogative writs against the Borough, the Board, and Owners, alleging that the meeting to consider Owners’ plans submitted under the Agreement violated WW. The trial court granted Defendants’ motions to dismiss Plaintiff’s

complaint. The trial court dismissed Plaintiff’s claim that the Borough’s approval of the Agreement was in violation of WW. The court reasoned that the procedures followed satisfied WW, as the Borough publicly discussed the Agreement during its regular meeting and the Agreement itself required Owners to apply to the Board under WW for approval of a revised and resubmitted site plan contemplated by the Agreement. Moreover, Owners’ resubmitted application was the subject of a duly noticed public hearing in compliance with WW. The Appellate Division affirmed substantially for the reasons set forth by the trial court. The appellate court further noted that nothing in WW suggests “that the public must be given wide latitude at a hearing to renegotiate the terms of an agreement settling an action in lieu of prerogative writs,” and WW only requires that a settlement agreement be “subject to public presentation, a public hearing thereon and a public vote.” This decision reaffirms the procedures to follow under WW when approving a settlement agreement with respect to a prerogative writ action. STORMWATER GREEN INFRASTRUCTURE NJDEP’s Green Infrastructure Stormwater Rule, adopted March 2, 2020, and is now in effect as of March 2, 2021. Major development projects that do not have pending applications that are complete for review prior to the March 2, 2021 effective date must design accordingly to satisfy the green infrastructure requirements. The technical requirements will be a work in progress, and developers are encouraged to consult with consulting professionals early in the project design stage to ensure that the new rule requirements are appropriately addressed in project design from both a substantive and timing perspective.

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