B9 Schoolhouse Owner, LLC v. Township of Franklin

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1461-24

B9 SCHOOLHOUSE OWNER, LLC,

Plaintiff-Respondent,

v.

TOWNSHIP OF FRANKLIN,

Defendant-Appellant.

___________________________

CONCORE REALTY, LLC,

Plaintiff-Respondent,

v.

TOWNSHIP OF FRANKLIN,

Defendant-Appellant.

____________________________

Argued December 9, 2025 – Decided March 13, 2026

Before Judges Rose, DeAlmeida and Torregrossa-

O'Connor.

On appeal from the Superior Court of New Jersey, Law

Division, Somerset County, Docket Nos. L-1365-23

and L-1385-23.

Louis N. Rainone argued the cause for appellant

(Rainone Coughlin Minchello, LLC, attorneys; Louis

N. Rainone and Christopher D. Zingaro, of counsel and

on the briefs).

Jonathan I. Epstein argued the cause for respondent B9

Schoolhouse Owner, LLC (Szaferman, Lakind,

Blumstein & Blader, PC, attorneys; Jonathan I. Epstein

and Kristine D. Brown, on the brief).

John J. DeLuca, Jr. argued the cause for respondent

Concore Realty, LLC (Savo, Schalk, Corsini, Warner,

Gillespie, O'Grodnick & Fisher, PA, attorneys; John J.

DeLuca, Jr., on the brief).

PER CURIAM

In these consolidated actions in lieu of prerogative writs, defendant

Township of Franklin appeals a December 6, 2024 Law Division order granting

summary judgment in favor of plaintiffs, B9 Schoolhouse Owner, LLC and

Concore Realty, LLC, owners and prospective developers of properties with

pending land use applications in the Township. Plaintiffs each filed complaints

facially challenging Franklin Township Ordinance 4419-23, enacted on

September 12, 2023, adopting and expressly applying retroactively to all

pending Township development applications new stormwater management

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(SWM) regulations passed by the New Jersey Department of Environmental

Protection (NJDEP).

Specifically, with their respective completed land use applications filed

and pending, plaintiffs requested the trial court declare the ordinance's

retroactive applicability provision invalid, preempted, or otherwise

unenforceable as contrary to, or not exempt from, the Municipal Land Use Law's

(MLUL), N.J.S.A. 40:55D-1 to -171, time of application rule (TOA Rule),

N.J.S.A. 40:55D-10.5, and related NJDEP SWM regulations, N.J.A.C. 7:8-1.6.

Both the TOA Rule and the regulations generally exempted already-filed

applications from compliance with newly-enacted regulations.

Because the trial court correctly determined the ordinance constituted a

zoning regulation pertaining to SWM of development projects rather than a

broader health and safety measure applying widely to the general public, we

conclude, as did the trial court, the ordinance is not exempt from the TOA Rule

prohibiting retroactive application of the new SWM requirements to plaintiffs'

filed applications pending at the time of its enactment.

I.

The trial court's grant of summary judgment rested on a legal

determination concerning the validity and applicability of the ordinance, and the

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parties conceded there were no genuine issues of material fact in dispute. We

therefore synthesize only the following undisputed facts and procedural history

pertinent to this appeal from the broader record before the motion court.

A. The Land Use Applications

Seeking to build a warehouse on its Franklin Township property, on May

5, 2022, B9 applied for site plan approval with the Franklin Township Planning

Board. B9's application was deemed complete on August 4, 2022. Similarly,

Concore filed for approval to build a warehouse on its land and submitted its

application to the Township Planning Board on January 20, 2023. Concore's

application was deemed complete on February 21, 2023. Both applications

remained pending when new SWM regulations were enacted both by NJDEP

and the Township.

B. The SWM Regulations and Ordinance

Following an executive order dated January 27, 2020, NJDEP issued

amendments to the State's SWM regulations on July 17, 2023, codified in

N.J.A.C. 7:8-1 to -6. N.J.A.C. 7:8-1.6, addressing the temporal application of

the amended regulations, in relevant part provides:

(b) Major development shall be subject to the

stormwater management requirements in effect prior to

July 17, 2023 as follows:

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1. Major development that does not require any

of the Department permits listed at (c) below and

for which a complete application has been

submitted prior to July 17, 2023 shall be subject

to the stormwater management requirements in

effect pursuant to (b)2 or 3 below, provided that

the application includes both the application form

and all accompanying documents required by

ordinance for one of the following approvals

pursuant to the [MLUL]:

i. Preliminary or final site plan approval;

....

3. An application required by ordinance for

approval pursuant to (b)1 above that has been

submitted on or after March 2, 2021, but prior to

July 17, 2023 shall be subject to the stormwater

management requirements in effect on March 2,

2021;

Simultaneously, with its enactment of the SWM amendments, NJDEP

responded to public comments concerning these new regulations. See 55 N.J.R.

1385(b) (Jul. 17, 2023). NJDEP clarified: "Pursuant to the SWM rules at

N.J.A.C. 7:8-1.6, complete applications that have been submitted for certain

types of approvals prior to the adoption date of this rulemaking are not subject

to the new standards." Id. at 1409 (response to comment 286). In another

comment, NJDEP explained the amended regulations "will not apply to any

major development that does not require permits from the

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Department . . . provided that the applicant has submitted an application prior to

the effective date of this rulemaking." Id. at 1408 (response to comment 279).

The NJDEP also addressed the applicability of the TOA Rule, specifically

noting the TOA Rule should govern municipal review of development

applications. Id. at 1431, 1435 (response to comments 572 and 615).

The Township subsequently adopted a corresponding SWM ordinance on

September 12, 2023, which became effective on October 5. The ordinance

codified the new SWM regulations, but changed the applicability provision. The

ordinance instead directed: "Any application . . . which has not received final

approval prior to the effective date of this ordinance shall be subject to the

provisions of this ordinance."

C. Summary Judgment

In November 2023, plaintiffs each filed a two-count complaint in lieu of

prerogative writs against the Township challenging the ordinance. The

complaints similarly alleged in count one that the ordinance's retroactive

applicability provision was arbitrary, capricious, unreasonable, and unlawful,

and thus invalid and unenforceable. The complaints' second counts asserted the

ordinance was preempted by state law and thus unenforceable in full or in part.

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In January 2024, the Township filed an answer and counterclaim. It

sought declaratory judgment confirming the ordinance applied to plaintiffs'

pending applications.

The trial court consolidated the litigation between the parties and entered

a case management order providing plaintiffs the opportunity to file motions for

summary judgment on two issues of law: "[W]hether Franklin Township

Ordinance 4419-23 is preempted by State law and/or is invalid because it

contravenes, is pre-empted by or not authorized by State Law or the regulations

promulgated thereunder, including specifically N.J.A.C. 7:8, and/or the [TOA]

rule, N.J.S.A. 40:55D-10.5." Plaintiffs thereafter filed summary judgment

motions confined to the issues as framed by the trial court.

After arguments, the court entered summary judgment for plaintiffs and

rendered its oral decision on December 6, 2024. The court reiterated, "There

were only two questions . . . Is ordinance 4419-23 exempt from the [TOA]

Rule? And then secondly, is ordinance 4419-23 by virtue of its deviation from

NJDEP rules as to applicability preempted, and therefore of no effect

to . . . plaintiff[s]."

Addressing the TOA Rule, the trial court summarized, "defendants argue

that ordinance 4419-23 is a health and public safety ordinance and is therefore

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exempt from the Time of Application Rule . . . . [P]laintiffs disagree and assert

that the ordinance is a zoning ordinance and therefore is subject to the [TOA]

Rule."

Identifying and addressing relevant caselaw distinguishing between health

and safety ordinances and zoning and planning ordinances, 1 the court found the

Township's SWM ordinance was a "zoning ordinance," subject to the TOA Rule.

It reasoned the ordinance was "far more than a generic environmental

regulation" and not "appl[icable] to everyone but instead only those who make

an application for development." The court thus found the ordinance was not

exempt from the TOA Rule and consequently not retroactively applicable to

filed and pending applications. The trial court then declined to address

plaintiffs' preemption arguments as moot.

1

The court examined Shipyard Associates v. City of Hoboken, 242 N.J. 23, 41

(2020) (recognizing "even if a zoning ordinance has an effect on public health

and safety, or is motivated by health and public safety concerns, that does not

re-characterize a zoning ordinance as a general police power ordinance"); New

Jersey Shore Builders Ass'n v. Township of Jackson, 199 N.J. 38, 54 (2009)

(finding tree removal ordinance was a "generic environmental regulation and

not a planning or zoning initiative"); and Sparroween v. Township of West

Caldwell, 452 N.J. Super. 329, 338 (App. Div. 2017) (concluding an ordinance

that limited smoking in certain retail establishments was not a land use or zoning

ordinance but a "validly adopted health ordinance").

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II.

On appeal, the Township argues the trial court erred because the

ordinance's applicability provision was enforceable as a heath and public safety

regulation exempt from the TOA Rule. The Township contends the ordinance

is aimed at preventing damage due to stormwater, which is a concern of health

and public safety, and therefore subject to the exception in the TOA Rule. It

contends the Supreme Court in Shipyard applied the TOA Rule to final

applications, and more latitude is afforded to municipalities at earlier stages in

the application process. Regarding plaintiffs' preemption argument, the

Township asserts NJDEP intended to grant municipalities the ability to adopt

stricter SWM regulations, allowing the Township to impose broader retroactive

applicability.

A.

"We review de novo the trial court's grant of summary judgment, applying

the same standard as the trial court." Abboud v. Nat'l Union Fire Ins., 450 N.J.

Super. 400, 406 (App. Div. 2017) (citing Templo Fuente de Vida Corp. v. Nat'l

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)). A court must grant

summary judgment "if the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show that there is no

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genuine issue as to any material fact challenged and that the moving party is

entitled to a judgment or order as a matter of law." R. 4:46-2(c). "To decide

whether a genuine issue of material fact exists, the trial court must 'draw[] all

legitimate inferences from the facts in favor of the non-moving party.'"

Friedman v. Martinez, 242 N.J. 450, 472 (2020) (alteration in original) (quoting

Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). "The court's function is

not 'to weigh the evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial.'" Rios v. Meda Pharm., Inc., 247 N.J.

1, 13 (2021) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540

(1995)).

"When reviewing the decision of a trial court that has reviewed municipal

action we are bound by the same standards as was the trial court." Price v.

Strategic Cap. Partners, LLC, 404 N.J. Super. 295, 301-02 (App. Div. 2008)

(quoting Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J.

Super. 552, 561 (App. Div. 2004) (internal quotation marks omitted)). Indeed,

"all municipal ordinances [are] entitled to a presumption of validity."

Sparroween, 452 N.J. Super. at 339 (quoting Grabowsky v. Twp. of Montclair,

221 N.J. 536, 551 (2015)). However, "conclusions of law are subject to de novo

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review." Price, 404 N.J. Super. at 302 (citing Wyzykowski v. Rizas, 132 N.J.

509, 518 (1993)).

We also review questions of statutory construction de novo. Shipyard,

242 N.J. at 38 (citing 388 Route 22 Readington Realty Holdings, LLC v. Twp.

of Readington, 221 N.J. 318, 338 (2015)). Although we consider "the statute's

plain language," ibid. (quoting Murray v. Plainfield Rescue Squad, 210 N.J. 581,

592 (2012)), we "review statutory language 'in context with related provisions

so as to give sense to the legislation as a whole,'" ibid. (quoting DiProspero v.

Penn, 183 N.J. 477, 492 (2005)). When language is included or excluded from

a statute, "it is generally presumed that [the Legislature] acts intentionally and

purposely in the . . . inclusion or exclusion." Ibid. (alterations in original)

(quoting N.J. Div. of Child Prot. & Permanency v. R.L.M., 236 N.J. 123, 148

(2018)). We "consider extrinsic interpretive aids, such as legislative history,

only 'when the statute is ambiguous, leading to more than one plausible

interpretation; it leads to an absurd result inconsistent with any public po licy

objective; or it is at direct odds with an overall statutory scheme.'" Id. at 39

(quoting Murray, 210 N.J. at 592).

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B.

In addressing the Township's argument its ordinance's retroactive

applicability provision is exempt from the TOA Rule, we begin by recognizing

the NJDEP's expressed intention that the TOA Rule apply to ordinances

adopting the new SWM regulations. See 55 N.J.R. at 1435 (response to

comment 615). NJDEP specifically advised:

If . . . [the municipality] determine[s] the application to

be complete, then the project should be considered

exempt from any amendments to their ordinance, as it

would be reviewed in accordance with the ordinance

that was in place at the time of a complete submission

pursuant to N.J.S.A. 40:55D-10.5.

[Ibid.]

Indeed, the TOA Rule provides for presumptive prospective application

of new regulations by municipal ordinance unless the provision:

Notwithstanding any provision of law to the contrary,

those development regulations which are in effect on

the date of submission of an application for

development shall govern the review of that application

for development and any decision made with regard to

that application for development. Any provisions of an

ordinance, except those relating to health and public

safety, that are adopted subsequent to the date of

submission of an application for development, shall not

be applicable to that application for development.

[N.J.S.A. 40:55D-10.5 (emphasis added).]

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Thus, the trial court correctly framed the controlling inquiry, questioning

whether the ordinance predominantly regulates land use under the MLUL, or

more squarely falls within the TOA Rule's exemption for ordinances enacted for

the purpose of public health and safety.

In analyzing the ordinance's purpose, reviewing courts scrutinize whether

the ordinance was passed pursuant to the MLUL or the police power statute,

N.J.S.A. 40:48-2. See Jackson, 199 N.J. at 53-54. New Jersey's Constitution

empowers the Legislature to enact laws under which municipalities may regulate

zoning, N.J. Const. art. IV § VI ¶ 2, and the MLUL expressly confers upon

municipalities the power to regulate zoning, see N.J.S.A. 40:55D-2. The MLUL

specifically "allows municipalities to adopt ordinances to regulate land

development in a manner which will promote the public health, safety, morals

and general welfare." Jackson, 199 N.J. at 53 (internal quotation marks omitted)

(quoting Rumson Estates, Inc. v. Mayor & Council of Fair Haven, 177 N.J. 338

(2003)).

By comparison, N.J.S.A. 40:48-2 grants municipalities the police power

to

make, amend, repeal and enforce such other ordinances,

regulations, rules and by-laws not contrary to the laws

of this state or of the United States, as it may deem

necessary and proper for the good government, order

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and protection of persons and property, and for the

preservation of the public health, safety and welfare of

the municipality and its inhabitants . . . .

The Supreme Court has recognized an ordinance enacted under the police power

statute is one enacted with a purpose of "protecting the health and welfare of its

citizens." Sparroween, 452 N.J. Super. at 339 (holding a smoking ordinance

explicitly enacted pursuant to N.J.S.A. 40:48-2 was "not within the planning and

zoning concerns of the [MLUL]").

Although not singularly dispositive of the inquiry, one material hallmark

of ordinances enacted pursuant to the police power statute is their universal

"appl[ication] to everyone." Jackson, 199 N.J. at 54 (holding tree removal

ordinance explicitly enacted pursuant to N.J.S.A. 40:48-2 and applicable to all

landowners was "a generic environmental regulation, and not a planning or

zoning initiative"). The Supreme Court in Shipyard further distinguished police

power health and safety ordinances as provisions "not plac[ing] limits on where

or how one could build. They regulate subject matter . . . divorced from typical

'planning and zoning concerns.'" 242 N.J. at 42 (quoting Jackson, 199 N.J. at

54) (holding that a floodplain ordinance which "specifie[d] floor heights for

certain buildings" and "specifie[d] construction materials and methods by use"

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was enacted pursuant to the MLUL and not a public health and safety

regulation).

Here, we are persuaded the Township's SWM ordinance falls within the

category of provisions enacted under the MLUL to address "typical 'planning

and zoning concerns.'" See ibid. Thus, it falls under the control of the TOA

Rule and does not apply retroactively to plaintiffs' pending development

applications. See id. at 41 (recognizing that a zoning ordinance's impact on

public health and safety does not remove it from its principal purpose as an

instrument of land use regulation).2

The ordinance's language is instructive in discerning its purpose. Indeed,

it announces: "The purpose of this chapter is to establish minimum stormwater

management requirements and controls for 'major development,' as defined

below."3 The ordinance defines "major development" as:

2

We have considered the Township's contention that Shipyard's reasoning

extends only to final approvals and conclude it lacks sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E); see also Shipyard, 242 N.J.

at 44 (expressly recognizing N.J.S.A. 40:55D-10.5 applies broadly to

"applications for development"); Dunbar Homes, Inc. v. Zoning Bd. of

Adjustment of Twp. of Franklin, 233 N.J. 456, 560 (2018) (holding that the TOA

Rule applies to "complete" applications for development).

3

Although the ordinance's expressed purpose only mentions "major

development," the ordinance also applies to "minor development," which is

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An individual "development," as well as multiple

developments that individually or collectively result in:

(1) The disturbance of one or more acres of land

since February 2, 2004;

(2) The creation of one-quarter acre or more of

"regulated impervious surface" since February 2,

2004;

(3) The creation of one-quarter acre or more of

"regulated motor vehicle surface" since June 30,

2021; or

(4) A combination of 2 and 3 above that totals an

area of one-quarter acre or more. The same

surface shall not be counted twice when

determining if the combination area equals one-

quarter acre or more.

Major development includes all developments that are

part of a common plan of development or sale (for

example, phased residential development) that

collectively or individually meet any one or more of

paragraphs 1, 2, 3, or 4 above. Projects undertaken by

any government agency that otherwise meet the

definition of "major development" but which do not

require approval under the [MLUL], are also

considered "major development."

The ordinance's stated purpose to provide "controls for 'major

development'" reflects its targeted applicability. Additionally, its definition of

defined as "any development that results in an increase in impervious surface of

1,000 or more feet, or one that disturbs more than 2,500 square feet of land area."

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"major development" cites to the MLUL. Further, unlike the ordinances in both

Jackson and Sparroween, there is no language in the ordinance suggesting it was

adopted pursuant to the police power. See Jackson, 199 N.J. at 56; see also

Sparroween, 452 N.J. Super. at 339.

We are satisfied this ordinance is not a public health and safety regulation

enacted pursuant to the police power intended to broadly apply principally

independent of "typical zoning and planning concerns." See Shipyard, 242 N.J.

at 42 (recognizing "even if a zoning ordinance has an effect on public health and

safety, or is motivated by health and public safety concerns, that does not re -

characterize a zoning ordinance as a general police power ordinance"). It sets

forth detailed project design requirements, pipe sizes, outlet locations, drainage

calculation methodology, and similarly technical mandates.

Significantly, the MLUL explicitly requires municipalities to enact SWM

plans. N.J.S.A. 40:55D-93. N.J.A.C. 7:8-1.1 states the "scope and purpose" of

N.J.A.C. 7:8-1.6, which the ordinance's language closely mirrors:

This chapter establishes general requirements for

stormwater management plans and stormwater control

ordinances, as well as content requirements and

procedures for the adoption and implementation of

regional stormwater management plans and municipal

stormwater management plans under the [MLUL].

[N.J.A.C. 7:8-1.1 (emphasis added).]

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Despite its effect of protecting Township residents and property from

potential stormwater flooding, the primary focus of the regulation is

development, which falls predominantly under the purview of the MLUL.

Accordingly, we conclude the trial court did not err in granting summary

judgment and applying the TOA Rule to immunize plaintiffs' applications from

the ordinance's retroactive applicability provision.

Having determined the TOA Rule controls and resolves the matter before

us, we need not reach plaintiffs' preemption argument. See Strategic Env't

Partners, LLC v. N.J. Dep't of Env't Prot., 438 N.J. Super. 125, 147 (App. Div.

2014) (quoting Comm. to Recall Robert Menendez v. Wells, 204 N.J. 79, 96

(2010)) ("As a general rule, our courts strive to avoid reaching constitutional

issues unless they are 'imperative to the disposition of the litigation .'").

Affirmed.

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