stating that “[o]rdinanees that impose a time limit on the validity of a variance ... have been upheld notwithstanding that the MLUL does not grant expressly that authority”
How later courts described this case
- stating that “[o]rdinanees that impose a time limit on the validity of a variance ... have been upheld notwithstanding that the MLUL does not grant expressly that authority”
- noting that statutory analysis is informed by constitutional directive that courts give liberal construction to municipal powers expressly conferred by Legislature
- ‘‘The time frame advances the public inter- est in prompt development of land in a manner consis- tent with the grant of preliminary approval . . . . It prevents the possibility that a future tentative ‘potential’ development, based on an earlier preliminary subdivi- sion approval, would forever affect planning decisions concerning development in other areas.’’ (Citation omit- ted.)
Written by the judges who cited it.
The opinion
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 , 645 A.2d 89 (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 , 628 A.2d 321 (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 *138 (1994). In 1993 the Supreme Court clarified [in Palatine 7] 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 , 650 A.2d 797 (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 , 288 A.2d 855 (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 , 364 A.2d 1016 (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 *139 of the application’s final approval. Palatine I, supra, 133 N.J. at 554 , 628 A.2d 321 ; MCG, supra, 278 N.J.Super. at 127 , 650 A.2d 797 .
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^19 (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 *140 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 ^nd uncertainty as applicants attempt to comply with idiosyncratic deadlines in an untold number of municipalities. Put simply, requiring an *141 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.
For reversal — Chief Justice PORITZ, and Justices COLEMAN, LaVECCHIA and ZAZZALI — 4.
For affirmance — Justices LONG, VERNIERO, and ALBIN — 3.