NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3600-23
ROUTE 440 DEVELOPERS, LLC,
Plaintiff-Appellant, APPROVED FOR PUBLICATION March 2, 2026 v. APPELLATE DIVISION
PLANNING BOARD OF THE CITY OF JERSEY CITY,
Defendant-Respondent.
Argued November 17, 2025 – Decided March 2, 2026
Before Judges Natali, Walcott-Henderson, and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0932-23.
Jennifer Borek argued the cause for appellant (Genova Burns LLC, attorneys; Eugene T. Paolino and Jennifer Borek, of counsel and on the briefs; Charu Mehta, on the briefs).
Santo T. Alampi (Law Office of Santo T. Alampi, LLC) argued the cause for respondent.
The opinion of the court was delivered by
BERGMAN, J.A.D. In this appeal, we set forth the applicable legal standards in applications
for phased developments before a land use board requesting preliminary and
final subdivision approval for property located in an area designated for
redevelopment pursuant to N.J.S.A. 40A:12A-1 to -22. We hold, in phased
development applications, a land use board shall consider whether each phase
of the application meets the subdivision and site plan requirements of the
municipality's zoning ordinance, as well as the purposes and goals of the
redevelopment plan when the property is located in a redevelopment area.
Plaintiff Route 440 Developers, LLC, appeals from an order of the Law
Division upholding the denial by the Planning Board of the City of Jersey City
("Board") of its multi-phase, mixed-use development application for property
located within the Route 440-Culver Redevelopment Area ("the Area" or
"Redevelopment Area") in Jersey City. Based on our review of the record, we
determine the trial court did not err in upholding the Board's denial of
preliminary and final subdivision relief to plaintiff for Phase I of its
application and dismissing the remaining portions of the application based on
plaintiff's failure to satisfy a major purpose and goal of the Plan by providing a
lot designation for the rail line right of way ("ROW") independently in Phase I,
rather than reserving the lot designation for later phases of the development.
Therefore, we affirm.
A-3600-23 2 I.
The Redevelopment Plan and Plaintiff's Development Application
Plaintiff is the owner of a parcel of land consisting of 8.29 acres located
at Block 21701, Lots 1, 13, 14, 17, 24 and 25 in Jersey City ("City"), within
the Route 440-Culver Redevelopment Area. The Area is subject to the Route
440-Culver Redevelopment Plan ("the Plan"), which was adopted primarily to
encourage new retail and commercial development, improve pedestrian
circulation, provide enhanced connections to light rail transit and foster overall
urban design.
The objectives of the Plan relevant to this appeal are as follows:
....
B. To recognize the significant opportunities for residential and commercial redevelopment afforded by the Area's proximity to the West Side Avenue Light Rail Station and the anticipated Route 440 Boulevard.
C. To preserve abandoned rail right-of-way within the Area for the anticipated extension of the Hudson Bergen Light Rail allowing it to connect to the west side of Route 440.
F. To provide enhanced pedestrian and vehicular connections to the anticipated Route 440 Boulevard and to the existing and proposed Hudson Bergen Light Rail stations.
A-3600-23 3 The Plan also requires that subdivision of lots and parcels to
be in accordance with the Plan's requirements:
H. Any subdivision of lots and parcels of land within the Redevelopment Area shall be in accordance with this Plan's requirements and the requirements pertaining to subdivision contained in the Jersey City Land Development Ordinance.
The Plan's Urban Design Requirements Include:
D. Circulation and Creation of New Rights-of-Way
1. The creation of new blocks and rights-of-way within the Area, as shown on the Rail and Street Network Plan (Map 3), is required pursuant to the following provisions in order to facilitate vehicular, bicycle and pedestrian circulation within the Area, improve access to mass transit, extend the existing street grid to create linkages to surrounding areas, . . .
2. In addition to the above, any application for development of Block 21701/(fka)1775.1 shall include the reservation of land within exiting Lot 14/83 for additional right-of-way for the extension of the Hudson Bergen Light Rail (HBLR). . . .
[(Emphasis added).]
As noted above, the Plan specifically addresses the reservation of land at
specific lots for the ROWs in the Area, including new streets and a railway
right-of-way extension, allowing the Hudson Bergen Light Rail ("HBLR") to
extend west over Route 440 to Bayfront, a housing development. The Plan
specifically requires any development application to include a reservation of
A-3600-23 4 land within Lot 14/83 for the anticipated extension of the HBLR right -of-way
and open space. In exchange for creating the ROW, the Plan provides
"bonuses" to a developer, which permit the developer to exceed certain floor
area ratios and other zoning requirements without a variance.
Plaintiff's proposed development is a multi-phase, mixed-use project
comprised of substantial new residential, retail, and public space components.
Plaintiff's application utilized three proposed phases, structured as follows:
Phase I: Development of a 30-story, mixed-use residential and retail building comprising 473 units, 11,600 square feet of retail, 344 parking spaces, and related amenities. Phase I includes creation of part of the new Grant Avenue right-of-way and a plaza connecting Claremont Avenue to Grant Avenue.
Phase II: Construction of a two-tower, mixed-use building (39 and 55 stories), with a total of 1,567 residential units and 131,712 square feet of retail, 1,118 automated parking spaces, and a new Grant Avenue and Greenwich Drive right-of-way. It also contemplates dedication of a portion of the HBLR extension ROW and Route 440 ROW widening.
Phase III: Development of a 55-story building in the Mid-Rise B District, creation of new Greenwich Drive ROW, dedication for the HBLR extension ROW, and new open space connecting Mallory Avenue to the development area.
On January 19, 2021, plaintiff filed its application with the Board
seeking preliminary and final subdivision and site plan approval for Phase I of
A-3600-23 5 the project also referenced in the record as "80 Water Street." Plaintiff also
requested preliminary subdivision and site plan approval for Phases II and III.
On April 8, 2021, the Board issued an "Incompleteness Letter" listing specific
deficiencies per the Jersey City Land Development Ordinance ("ordinance").
The letter listed several items deemed to be incomplete; however, it did not
cite any specific section of the Plan requiring a "redeveloper" designation or
redevelopment agreement in order to file a development application.
In response to the Board's letter, plaintiff submitted a revised application
on June 2, 2021. Plaintiff asserts it did not receive a response or any updates
from the Board concerning the revised application for approximately one year.
After a meeting with City officials in June 2022, plaintiff was notified that it
would be required to enter into a Redevelopment Agreement ("RDA") with the
Jersey City Redevelopment Agency ("JCRA") and to be designated a
"redeveloper" for its application to progress.
On September 28, 2022, plaintiff agreed to apply to be named a
redeveloper and enter into an RDA with the JCRA as conditions before any
final approvals were granted. The application was scheduled for a hearing on
November 15, 2022. The Board rescheduled the hearing from November 15,
2022 to November 29, 2022. On November 29, 2022, plaintiff began to
present its application to the Board. However, the Board declined to hear the
A-3600-23 6 merits of the application because plaintiff had yet to be named a redeveloper
nor had it entered into an RDA at that point. The Board requested more
information about the steps that plaintiff took to be designated a redeveloper
by the JCRA. The Board carried plaintiff's application to January 10, 2023.
Thereafter, plaintiff submitted a revised application to the JCRA on
January 5, 2023 requesting to be designated a "redeveloper." When plaintiff
began to present its application at the January 10, 2023 meeting, the Board
again declined to hear it, determining it could not proceed because: (1)
plaintiff's documents requesting to be named a redeveloper were provided to
the JCRA less than 10 days before the January 10 hearing; and (2) the Board
required confirmation from JCRA that it received plaintiff's application.
Plaintiff objected to the Board's refusal to hear the merits of the application
and asserted its application should proceed because it could be granted with a
condition that it be named a redeveloper and enter into an RDA. No formal
vote was held on plaintiff's request, and the Board adjourned the application to
January 24, 2023.
Final Planning Board Hearing and Board's Determination
On January 24, 2023, a hearing was held. Plaintiff and the Board agreed
to "bifurcate" the application wherein plaintiff would present its preliminary
and final subdivision application for Phase I first, followed by its application
A-3600-23 7 for preliminary and final site plan approval for Phase I, and finally its
application for preliminary subdivision and site plan approval for Phases II and
III. Plaintiff presented testimony and evidence concerning its preliminary and
final subdivision application for Phase I by calling its planning expert who
testified plaintiff's plan was compliant with all subdivision and site plan
requirements under the Plan and ordinances. Plaintiff's expert asserted its
proposed Phase I subdivision was "as-of-right," requiring no variances. He
further asserted the proposed configuration for the HBLR extension and other
rights-of-way in the application were consistent with the Plan and its bonus
provisions. Plaintiff's expert also testified that plaintiff has been in
discussions with New Jersey Transit ("NJT") regarding the HBLR and that its
application and plans were "consistent with the plans that NJT [has given to
plaintiff]." The Board inquired whether plaintiff had received confirmation
from NJT regarding the extension and whether there was a dedicated parcel for
the HBLR. Plaintiff's counsel responded it had not received confirmation from
NJT.
Despite not having this confirmation of the dedicated lot for the rail line
ROW in Phase I, plaintiff maintained that preliminary and final subdivision
approval should be granted, conditioned on future agreements with NJT for the
rail extension contained in Phases II and III of its application, as permitted
A-3600-23 8 under N.J.S.A. 40:55D-22(b). Board members and its professionals expressed
concern about the project's dependence on future phases for the lot dedication
of the HBLR railway extension, the interrelationship of phases, including the
absence of guaranteed delivery of public benefits or infrastructure
contemplated in subsequent phases, including the rail line ROW.
After plaintiff's presentation was completed, the Board, by a vote of six
to one, denied plaintiff's preliminary and final subdivision application for
Phase I, declined to hear, and dismissed the associated preliminary and final
site plan application for Phase I and dismissed the preliminary site plan and
subdivision application for Phases II and III. Defendant issued a Resolution
denying plaintiff's application on March 21, 2023.
The resolution stated plaintiff had "failed to meet the burden of proving
compliance with the [] Plan," and as relevant to this appeal, specifically found:
(1) the [HBLR] and the extension of the [HBLR] is critical transit infrastructure; (2) the main objective of the [] Plan with respect to Block 21701 is the extension of the [HBLR] in order to connect all areas of the City; (3) the extension of the [HBLR] is not specifically identified on the subdivision map and [] the location of the [HBLR] is essential subdivision of land pursuant to the [] Plan; (4) the [a]pplicant has not provided any documentation from [NJT] with respect to the location and/or agreement with respect to the [HBLR]; (5) the [a]pplicant has not provided any description of the location of the extension of the [HBLR]; (6) the [] Plan requires the dedication of land for the Hudson-Bergen Light Rail at the time of
A-3600-23 9 subdivision of the [p]roperty; (7) the [] Plan requires the dedication of the land for the [HBLR] be made via a deed of dedication to the City of Jersey City to ensure the extension of the [HBLR] at the time of subdivision of the [p]roperty. [The] granting of the subdivision as presented by the [a]pplicant would, in no way, advance any of the purposes of the [] Plan and in fact, would contradict the objectives, intent, spirit and language of the [] Plan by impairing the objectives, goals, intent and purpose of the [] Plan and would have a substantial detrimental impact on the surrounding area.
Trial Court Proceeding
Plaintiff timely filed its complaint in lieu of prerogative writs 1 on March
15, 2023, and an amended complaint on April 14, 2023, challenging the
Board's denial. The Board answered and the matter proceeded to hearings on
January 8 and March 7, 2024. At the Law Division hearing, both parties
presented arguments addressing whether the subdivision application for Phase
I was "as-of-right," the sufficiency of plaintiff's compliance with the Plan, the
statutory authority for phased and final approvals and the necessity for a
redeveloper designation and RDA. Plaintiff maintained that Phase I was
separately compliant and entitled to preliminary and final subdivision and site
plan approval, that defendant had imposed additional requirements arbitrarily
and failed to follow statutory obligations and argued that New Jersey law and
1 R. 4:69-1.
A-3600-23 10 precedent required approval of its fully conforming applications. Plaintiff
further asserted it was entitled to automatic approval pursuant to N.J.S.A.
40:55D-48(c) because the Board unreasonably delayed hearing its application.
The Board asserted due to the interconnected nature of the proposed
subdivision and site plan, the proposed plan did not meet the Plan's purposes
and goals. The Board asserted the purpose of the Plan could not be assured
without simultaneous approval of all phases and a binding commitment for all
phases, particularly because the HBLR was a major component of the Plan and
was not included in Phase I. The Board further asserted plaintiff failed to
comply with the requirement to be designated a redeveloper and to enter into
an RDA that was necessary for orderly implementation. The Board further
disputed that it unreasonably delayed hearing the application and plaintiff was
not entitled to an automatic approval.
On June 6, 2024, the trial court entered an order affirming the Board's
determinations and dismissed plaintiff's complaint. In a written opinion, the
court found:
due to the extremely complicated, interrelated nature of the various lots and blocks in the Redevelopment [Z]one . . . the [plaintiff's application,] (whether approving sub-division approvals relating to Phase 1 or preliminary approvals for Phases 2 and 3) would have a negative impact on the overall intent and purposes of the Redevelopment Plan. The entire purpose of [the] Plan is to ensure . . . [a] structured
A-3600-23 11 redevelopment of the entire zone, to align with an extension of the [HBLR]. The . . . Resolution of the [] Board clearly states . . . that the [a]pplicant's proposal (under Phases 1, 2 or 3) would not further the intent of the [] Plan but, rather would harm the objectives sought by the Plan.
The court further rejected plaintiff's arguments for automatic approval
based on the Board's alleged unreasonable delays, and incorporated the Board's
argument in finding "that the intricate and convoluted nature of the
[a]pplication which required the [] Board to meet with the plaintiff on
numerous occasions, and that (via emails and otherwise), the plaintiff was put
on notice that [it's] application was not complete or ready for final review by
the [] Board."
On appeal, plaintiff contends the trial court erred by finding the Board's
decision was not arbitrary, capricious, or unreasonable. Specifically, plaintiff
asserts the trial court erred by: (1) denying automatic approval of its
application; (2) denying its claim that Phase I was entitled to an "as of right"
subdivision pursuant to ordinance requirements and applicable law; (3)
determining plaintiff was required to be designated a "redeveloper;" and (4)
permitting the Board to rely on new arguments not addressed at the hearing or
addressed in the Resolution.
A-3600-23 12 II.
A municipal agency decision "is subject to review in the Law Division in
an action in lieu of prerogative writs[,] . . . and the Law Division's review of
the . . . decision must be based solely on the agency record." Willoughby v.
Planning Bd. of Twp. of Deptford, 306 N.J. Super. 266, 273 (App. Div. 1997)
(internal citation omitted) (citing R. 4:69). "The Law Division reviews the
record to determine whether the . . . factual findings are based on 'substantial
evidence' and whether its discretionary decisions are 'arbitrary, capricious and
unreasonable.'" Id. at 273-74 (citation omitted).
"When we consider an appeal of a trial court's review of a municipal
board's action, we are bound by the same standard as the trial court. We give
deference to a municipal board's decision, and such decisions should be
overturned only when proven arbitrary, capricious or unreasonable." Cohen v.
Bd. of Adjustment of Borough of Rumson, 396 N.J. Super. 608, 614-15 (App.
Div. 2007) (internal citation omitted). "[M]unicipal action is not arbitrary and
capricious if exercised honestly and upon due consideration, even if an
erroneous conclusion is reached." Bryant v. City of Atl. City, 309 N.J. Super.
596, 610 (App. Div. 1998) (citations omitted). "[T]he law presumes that
boards of adjustment and municipal governing bodies will act fairly and with
proper motives and for valid reasons." Fallone Props., L.L.C. v. Bethlehem
A-3600-23 13 Twp. Plan. Bd., 369 N.J. Super. 552, 560-61 (App. Div. 2004) (alteration in
original) (quoting Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296
(1965)). However, "[a] determination predicated on unsupported findings is
the essence of arbitrary and capricious action." Bryant, 309 N.J. Super. at 610
(citation omitted).
A.
We first address plaintiff's argument that its application should have
been automatically approved. Plaintiff contends pursuant to N.J.S.A. 40:55D-
10.3, its application should have been deemed complete 45 days after its
submission, namely on June 2, 2021, when it provided an amended application
in compliance with the Board's incompleteness letter. Plaintiff further
contends by virtue of the automatic statutory approval mechanism in N.J.S.A.
40:55D-48(c), that its application should have been granted default approval
under the Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-1 to -163, 95
days thereafter on or about September 5, 2021. We are unpersuaded.
Automatic approval statutes are to be "applied with caution." King v.
New Jersey Racing Comm'n, 103 N.J. 412, 422 (1986) (citation omitted);
Eastampton Center, LLC v. Planning Bd. of Township of Eastampton, 354 N.J.
Super. 171, 193 (App. Div. 2002). "[A]pplication of the statutory time
constraints must be anchored in the reason for their existence. The evil which
A-3600-23 14 the automatic approval provisions were designed to remedy was municipal
inaction and inattention." Allied Realty v. Borough of Upper Saddle River,
221 N.J. Super. 407, 418 (App. Div. 1987). The purpose of these time limits is
to expedite decision-making on land use applications. Lizak v. Faria, 96 N.J.
482, 492 (1984).
Despite the mandatory nature of the language, courts have denied
automatic statutory approval to a development application "especially where
the municipal board's failure to act within the statutory deadline is technical or
inadvertent, and where there is no evidence of intentional delay or inattention
to the application." Eastampton, 354 N.J. Super. at 193; see also Manalapan
Holding Co. Inc. v. Planning Bd. of Hamilton Township, 92 N.J. 466, 476
(1983); Star Enter. v. Wilder, 268 N.J. Super. 371, 375-77 (App. Div. 1993);
D'Anna v. Planning Bd. of Washington Township, 256 N.J. Super. 78, 82-83
(App. Div. 1992); Allied Realty, 221 N.J. Super. at 418-20. Thus, courts have
been reluctant to uphold an automatic approval absent a clear showing of
purposeful delay. For example, the failure to act timely on an application has
been excused where a board was operating under an understandable
misconception of law, Manalapan Holding Co., 92 N.J. at 480 and Allied
Realty, 221 N.J. Super. at 418-19; where a decision was defective because of
an inadvertent and technical violation of the law, Precision Indus. Design Co.,
A-3600-23 15 185 N.J. Super. at 18; where inaction was the product of inadvertent mistake,
such as misplacing the development application, D'Anna, 256 N.J. Super. at
83; or where the applicant appeared to consent to an extension of time, Star
Enter., 268 N.J. Super. at 376-77.
The record reflects, after plaintiff filed its application, the Board issued
an "Incompleteness Letter" on April 8, 2021 listing several deficiencies.
Plaintiff submitted a revised application on June 2, 2021, addressing the
deficiencies. Plaintiff alleges it did not receive a response or any updates
concerning its application from the Board for nearly a year, nor was a hearing
date set. Eventually, plaintiff met with City officials in June 2022 and was
notified that it would be required to enter into an RDA with JCRA and be
designated a "redeveloper" for its application to progress.
On September 28, 2022, plaintiff agreed to apply to be designated a
"redeveloper" and enter into an RDA with the JCRA. The application was re-
scheduled for a hearing before the Board on November 15, 2022, then to
November 29, 2022, January 10, 2023 and finally was heard and denied on
January 24, 2023. In the interim, plaintiff filed an application with the JCRA
on January 5, 2023 to be named a "redeveloper."
Based on the record before us, we conclude the trial court did not err in
denying automatic approval to plaintiff. The trial court's decision stated it
A-3600-23 16 "agreed" with defendant's argument that plaintiff should be estopped from
raising automatic approval. The court based its denial on "the intricate and
convoluted nature of the application which required the [] Board to meet with
the plaintiff on numerous occasions, and . . . [that] plaintiff was put on notice
that [its] application was not complete or ready for final review by the []
Board."
An argument can certainly be made that the approximate year delay
between the filing of plaintiff's amended application on June 2, 2021 and the
next event in June 2022 when plaintiff's counsel met with the Board was
excessive and unreasonable. Notwithstanding, the record reflects plaintiff
consistently represented it would apply to be named a redeveloper and enter
into an RDA with JCRA from at least September 2022 and submitted its
application for that purpose on January 5, 2023. We conclude plaintiff's
failure to apply to be named a redeveloper, as represented, until January 5,
2023 was a significant contributing factor to the delay in hearing its
application that weighs against automatic approval.
We further conclude, insufficient evidence exists in the record showing
the Board purposefully delayed the hearing. It issued a letter of
incompleteness shortly after the filing of the application. There is also no
persuasive evidence in the record that the Board's position requiring plaintiff
A-3600-23 17 to be named a redeveloper and enter into an RDA was made in bad faith,
especially because plaintiff agreed to apply to be named a redeveloper and
enter into an RDA, indicating its agreement with the Board.
We determine a legitimate dispute existed between the parties
concerning the requirement for plaintiff to be named a redeveloper, which was
a significant cause for the delay in holding a hearing. The record does not
demonstrate the Board's actions were clearly for the purpose of delay or were
undertaken for purposes of "bad faith or obstructionism." Manalapan Holding
Co., 92 N.J. at 482. We conclude the trial court's determination to not invoke
automatic approval was supported by substantial, credible evidence and was
not reversible error.
B.
We next address plaintiff's contention the court erred by finding the
Board's denial of its preliminary and final subdivision application for Phase I
because the subdivision was "as of right" since its plan complied with all
requirements in the ordinances and the redevelopment zone. The subdivision
plan demonstrates plaintiff's application for preliminary and final subdivision
approval was essentially a redrawing of the property lines in the parcel
modifying the layout and number of lots in the existing parcel from six lots to
five. Phase I concerned only proposed Lot 1 in the northern section of the
A-3600-23 18 parcel but did not include the dedication of the HBLR extension ROW
required by the Plan, as the ROW was contained in Phases II and III of
plaintiff's application.
In preliminary subdivision applications, "[t]he planning board shall, if
the proposed subdivision complies with the ordinance and this act, grant
preliminary approval to the subdivision." N.J.S.A. 40:55D-48(b). Only when
an application fully meets these requirements may it be granted "as of right."
Notwithstanding, this is not the end of the inquiry, as the MLUL:
evinces a legislative design to require consistency, uniformity, and predictability in the subdivision- approval process. The legislative scheme contemplates that a planning board's review of a subdivision proposal, including the layout of the entire design, must be made within the framework of the standards prescribed by the subdivision and, if pertinent, the zoning ordinances.
[Pizzo Mantin Group v. Twp. of Randolph, 137 N.J. 216, 229 (1994) (emphasis added).]
In addition, once a redevelopment plan has been adopted, all
development in the area is subject to planning board approval as defined in the
MLUL. Jersey Urban Renewal v. Asbury Park, 377 N.J. Super. 232, 237-39
(App. Div. 2005). Also, a redevelopment plan "imposes upon [an applicant]
certain redevelopment criteria, not unlike development standards that are
imposed by typical zoning ordinances." Id. at 239.
A-3600-23 19 The MLUL at N.J.S.A. 40:55D-38 also sets forth specific requirements
for subdivisions and site plans stating, in pertinent part:
An ordinance requiring approval by the planning board of either subdivisions or site plans, or both, shall include the following: ....
b. Provisions ensuring:
(1) Consistency of the layout or arrangement of the subdivision or land development with the requirements of the zoning ordinance; ....
(4) Suitable size, shape and location for any area reserved for public use pursuant to section 32 [C.40:55D-44] of this act;
d. Provisions ensuring that when a municipal zoning ordinance is in effect, a subdivision or site plan shall conform to the applicable provisions of the zoning ordinance, and where there is no zoning ordinance, appropriate standards shall be specified in an ordinance pursuant to this article. . . .
We conclude, in this instance, the "appropriate standards" were not only
included in the zoning ordinances of the City but were also contained in the
Redevelopment Plan. Although we recognize from the record that plaintiff
may have met all the bulk requirements in its Phase I preliminary subdivision
application and seemingly, no variances were required, the trial court
A-3600-23 20 determined the application did not meet a major purpose of the Plan because it
failed to include the required dedication for the rail line ROW in Phase I,
instead leaving the dedication to future phases of the application. In addition,
plaintiff failed to provide written documents or other proofs from NJT that it
had issued a preliminary or final approval for the railway. The trial court
concurred with the Board's finding that the purposes of the Plan, including
dedication of the rail line, were not met independently by Phase I alone.
We conclude the court's determination that the Board's decision was not
arbitrary, capricious or unreasonable was not error because the Plan's
redevelopment criteria required certain areas in the parcel to be dedicated for
the rail line ROW and plaintiff's subdivision plan at Phase I did not accomplish
such. All Board members voting in the majority to deny plaintiff's application
voiced concerns with the lack of a lot dedication for the rail line ROW in
Phase I and cited to the uncertainty of the rail line's inclusion in the project
because the rail line ROW was left to future phases of plaintiff's plan and was
subject to approval by NJT.
The provisions of the Plan provide standards relating both generally and
specifically to the suitability of a development application in the
redevelopment area and the purposes and goals in the area. The standards and
purposes in the Plan, including the dedication of a rail line ROW, were
A-3600-23 21 correctly considered by the Board and the trial court when finding the
plaintiff's application was not suitable under the purposes of the Plan because
Phase I did not independently include the required ROW, which was a major
purpose and goal of the Plan.
We also conclude there was no prejudice to plaintiff by the Board not
separately considering plaintiff's preliminary site plan application because it
had already determined the application did not meet the requirements for
preliminary subdivision approval, both of which are based on the identical
standards of N.J.S.A. 40:55D-38(d). Both preliminary subdivision and site
plan applications "shall conform to the applicable provisions of the zoning
ordinance." Ibid. Here, the "applicable provisions" included the purposes and
goals set forth in the Redevelopment Plan including the major purpose to
dedicate an area for the extension of the HBLR line ROW.
In addition, contrary to plaintiff's argument, the adopting resolution
clearly provided reasons for the Board's denial, based primarily on plaintiff's
failure to dedicate the land required by the Plan for the rail line ROW in Phase
I. We reject plaintiff's contention that this was a "new" argument raised before
the trial court for the first time and was not part of the Board's decision or
resolution. The hearing record clearly includes Board members' and Board
A-3600-23 22 professionals' questions and concerns about the rail line due to the lack of a
dedicated lot for this purpose in Phase I and also the lack of NJT approval.
"The record is the best evidence of what the [b]oard considered and
decided." Park Ctr. at Route 35, Inc. v. Zoning Bd. of Adjustment of Twp. of
Woodbridge, 365 N.J. Super. 284, 289 (App. Div. 2004) (quoting Fieramosca
v. Twp. of Barnegat, 335 N.J. Super. 526, 533 (Law Div. 2000) (quoting
Sherman v. Borough of Harvey Cedars Zoning Bd. of Adjustment, 242 N.J.
Super. 421, 430 (App. Div. 1990))). Indeed, "the adoption of [a]
memorializing resolution is not the 'decision' but merely a memorialization of
that decision." Ibid. (quoting Fieramosca, 335 N.J. Super. at 533). Thus, a trial
court must consider "the entire record before the local board . . . to determine
what was decided. . . ." Ibid.
We concur with the Board's legitimate concerns, reflected in the Board
hearing record, that the granting of preliminary and final subdivision and site
plan approval for only Phase I would permit plaintiff to develop proposed Lot
1 without any assurances that the rail line ROW would be approved by NJT.
Because the railway—a major purpose of the Redevelopment Plan—was not
part of its Phase I application, the Board was rightly concerned with separate
approvals for Phase I.
A-3600-23 23 For reasons not made known in the record, plaintiff chose to file an
application that phased the project in a manner that carved out Phase I for
preliminary and final subdivision and site plan approvals rather than request
preliminary subdivision and site plan approval for all phases before requesting
final approvals. Here, the Board heard and decided the application "as filed"
and because Phases II and III included the dedicated area for the rail line ROW
required by the Plan, we concur with the trial court's affirmance of the Board's
denial of plaintiff's application. We also conclude the Board's denial was not
arbitrary, capricious or unreasonable because plaintiff's development
application at Phase I, when viewed independently, failed to meet a major
purpose of the Plan related to the requirement for rail line ROW.
We further conclude the Board was under no obligation to conditionally
grant preliminary and final approvals of Phase I subject to NJT's approval of
the rail line ROW. Conditional approvals of land use applications under these
circumstances are governed by the MLUL, which in pertinent part states:
In the event that development proposed by an application for development requires an approval by a governmental agency other than the municipal agency, the municipal agency shall, in appropriate instances, condition its approval upon the subsequent approval of such governmental agency. . . .
[N.J.S.A. 40:55D-22(b).]
A-3600-23 24 As previously stated, Phase I of plaintiff's application did not include the
rail line ROW, which was part of Phase II and III. Plaintiff not only requested
preliminary subdivision and site plan approval for Phase I, but also final
subdivision and site plan approval, which is inconsistent with its assertion that
the Board was required to impose conditions on NJT's approval of the railway
ROW because the ROW was not part of the Phase I portion of the application
before the Board. We reiterate that final subdivision and site plan approval for
Phase I would permit development of Lot 1 without any assurance that the rail
line ROW would be approved by NJT or completed even if this "condition"
was imposed as part of the approval of Phase I. As alluded to by statements
of certain Board members, a condition of approval by NJT for the ROW would
attach to Phases II or III, which would have been ineffective to bar plaintiff's
development of Phase I because final subdivision and site plan approval would
have already been granted for Phase I at that point. Under these
circumstances, the Board's failure to grant conditional approval of plaintiff's
Phase I application was not arbitrary capricious or unreasonable.
C.
We now address plaintiff's contention the court erred by affirming the
Board's determination that plaintiff was required to be named a redeveloper in
order to obtain approvals. Although the record reflects that plaintiff agreed to
A-3600-23 25 apply to be named a redeveloper and enter into an RDA and plaintiff
confirmed this position before the Board at the hearings, it challenged this
point in its Law Division complaint and on appeal. We note plaintiff
proceeded with its application and the Board heard and rendered a final
decision. Since we have affirmed the trial court's decision and reasoning on
the merits, we deem this point moot. Therefore, we make no determination
concerning whether an applicant is required to be named a redeveloper or to
enter into an RDA in order to proceed before the Board on a development
application in the Redevelopment Area.
To the extent we have not addressed any of plaintiff's remaining
arguments, we conclude those arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3600-23 26