Pond Run Watershed Association, etc. v. Township of Hamilton Zoning Board of Adjustment and Crestwood Construction, LLC

Plaintiffs, several residents of Hamilton Township ("the
Township") and a watershed preservation advocacy group, seek to
invalidate numerous use and bulk variances the Township's Zoning
Board of Adjustment ("the Board") granted to a developer,
Crestwood Construction, LLC ("Crestwood" or "the developer").
The variances authorized Crestwood to build on a 10.9-acre site
a mixed-use project, consisting of four buildings with a total
of 119 age-restricted apartments, two retail/office buildings,
and another building with a 168-seat restaurant. The variances
were necessary because the site is located in a research and
development zone ("RD zone") that prohibits residential housing
and that disallows retail businesses and restaurants except on
lots with at least one hundred acres.

The Law Division rejected plaintiffs' challenge to the
project in most respects, except that it found that the
developer had improperly agreed, as a condition of its
variances, to pay a $476,000 subsidy to the Township for the
off-site construction of a proposed amphitheatre in a nearby
municipal park. Ruling that the $476,000 illegal exaction was
only a minor part of the project, the trial court excised that
condition and did not require any further public hearings before
the Board. Plaintiffs now appeal the trial court's decision on
multiple grounds.

Although many of plaintiffs' arguments lack merit, we are
persuaded that the variances are flawed in two significant
respects. First, the notice of its zoning application that
Crestwood published in the newspaper and served upon nearby
property-owners was substantively deficient under Perlmart of
Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 241
(App. Div. 1996). In accordance with Perlmart, the notice
should have specifically alerted neighbors and the public at
large that the variances Crestwood sought included approval for
a large restaurant with a potential liquor license, going beyond
the notice's vague reference that the project included
"retail/office units." Second, the developer's bargained-for
$476,000 contribution towards an off-site Township recreational
facility was a significant, not a minor, part of the development
proposal, substantially intended to compensate for the project's
complete lack of on-site recreational facilities for the senior
citizens who would be living there. Consequently, the matter
preferably should have been remanded to the Board for further
public consideration after the trial court correctly deemed the
developer's negotiated payment an illegal exaction.

Because the project is already partially built, we decline
to fashion a comprehensive remedy to address these deficiencies,
except that we enjoin further construction of the restaurant at
this time pending proper notice to the public of the restaurant
proposal and the Board's renewed consideration. We remand the
matter to the Law Division for the fuller development of an upto-
date factual record germane to remedial issues, and to
clarify the scope of the issues that must be reheard before the
Board. After those facts are adduced, the trial court shall
exercise its sound discretion to formulate a solution that duly
considers the interests of the litigants, affected third parties
such as contractors, vendors, and prospective tenants, and the
public at large.

I.

The project at issue, known in marketing materials as "Twin
Ponds," involves a 10.9-acre L-shaped parcel of land on the east
side of Yardville-Hamilton Square Road in Hamilton Township.

The property is designated as Section (or Block) 2173, Lots 18,
19, 20 and 21 on the Township's tax maps. The property was
formerly used as farmland. At the time of Crestwood's zoning
application, the property was vacant and owned by the Diocese of
Trenton. The developer, Crestwood, subsequently purchased the
property and planned to continue to own it after the project was
built.

In its application submitted to the Board in January 2005,
Crestwood proposed a "mixed-use active adult community and
commercial development" on what is an RD zone. Of the 17,000
square feet proposed as commercial space, a sit-down restaurant
would cover 5,000 square feet and the remaining 12,000 square
feet would be "dedicated to an even split of office and retail
use."

The site would also include four two-story buildings with
"age qualified" garden apartments for residents fifty-five and
older. Each building would have thirty-two bedroom units. Each
apartment would have two parking spaces as required by the local
ordinance. The woods in the far eastern portion of the property
were to be preserved.

The "boulevard type entrance" for the project would line up
directly with Briarwood Drive, a residential subdivision across
the street, and would have a landscaped island. The development
would be called Twin Ponds because of two artificial ponds to be
created on each side of the entrance driveway. The ponds were
an aesthetic consideration and would provide only minimal storm
water management. The Township's engineers, land use
coordinators and other consultants reviewed and commented on
Crestwood's application before the Board considered it.

Crestwood applied for two use variances, pursuant to
N.J.S.A. 40:55D-70(d), for relief from the use restrictions in
the RD zone. One use variance was required because the proposed
residential use for the apartments is not permitted in the RD
zone. The second use variance was needed because the proposed
commercial uses for the 10.9-acre site did not meet the criteria
for this size project. By Township ordinance, mixed use
developments in the RD zones containing retail uses are
permitted only if the minimum total area to be developed is one
hundred acres. Hamilton Twp., N.J., Land Dev. Code § 160-
80(1)(b)(7)(i) (1979).

At its appearance before the Board, Crestwood also sought
preliminary site plan approval of the entire project and final
site plan approval of "phase one," consisting of sixty units in
the southern residential village. Phase two included the
commercial section, and phase three included the other sixty
units of garden apartments.

The application sought bulk variances for "front, side, and
rear yard setbacks, the distance between the two principal
buildings, parking area setbacks from any lot line, [the]
minimum buffer area along any common property line in the
residential districts, and [a] ground sign setback from the
property line." This last variance was sought for a groundmounted,
thirty-square-foot sign to be placed ten feet from the
right-of-way. The plan complied with other RD zone
requirements, such as building height and maximum impervious
surface coverage.

The application also sought several design waivers. One
was for a commercial area loading berth, with deliveries to be
made during off hours so that truck parking would not conflict
with the users of the commercial parking lot. Another design
waiver was for the size of the garden apartments. The third
design waiver sought was in connection with the distance between
the ground level openings on each apartment building.

According to the project's architect, the apartment
buildings were designed to have "no front or back . . . . So,
basically, all the way around the apartment it always looks like
a front elevation." The apartment buildings were to be
connected by a shared vestibule. The residents would have
access to the secure lobby level from all parking areas. Each
of the two-bedroom residential units would be approximately the
same size, 45 by 24 feet, totalling 1100 square feet.

The commercial portion of the project included three sixty foot
deep, one-story buildings with decorative dormers or
cupolas. The HVAC systems would be either "wall type units" or
outside condensers "that could be easily landscaped and
screened."

The plan proposed that fifty-one percent of the total area
would be impervious cover, which is less than the fifty-five
percent maximum limit for RD zones. The plan also satisfied the
ordinance's five percent landscaping requirement in parking
areas and the ordinance's technical criteria for landscaping.
Further buffers would be added along the property lines and the
pondscape plan would be supplemented with additional plantings.
The plan also included widening Yardville-Hamilton Square
Road to sixty-four feet, pursuant to the Township engineer's
requirements. The right-of-way dedication would be increased to
ten feet. In accordance with comments from the Township's
experts, Crestwood agreed, to the extent possible, to minimize
the crossings at Yardville-Hamilton Square Road. It also sought
to eliminate one of the storm sewers and shift one of the water
crossings out of the intersection.

On April 2, 2005, Crestwood mailed notices of the hearing
on its application to the listed owners of property located
within two hundred feet of the project site. On that same date,
a public notice of the application was also printed in a local
newspaper. As we will explore at length in Part II of this
opinion, the notice incorrectly listed the property's Block
number as "2713" rather than "2173." The notice made no mention
of the 168-seat restaurant contemplated for the site. The
notice indicated that a public hearing on the application would
be conducted before the Board at its next regular meeting on
April 12, 2005.

For reasons not clear from the record, Crestwood's
application was not listed on the Board's tentative agenda for
the April 12 meeting. A partial transcript from that meeting
indicates that the application was carried to the next regular
board meeting on May 10, 2005. The Board's tentative agenda for
the May 10 meeting does include the Crestwood application.

During that May 10 meeting, Crestwood's application was
"tentatively carried" to a "special meeting" on May 24, 2005. A
public notice of the adjournment to May 24 was subsequently
published in The Trenton Times.

As anticipated, the application was listed on the tentative
agenda for the May 24 meeting, and was considered on its merits
at that time. Crestwood presented testimony in support of its
application by several experts. These experts included a
licensed planner, an architect, an engineer who prepared a
stormwater management plan, and another engineer who testified
on traffic issues. The developer also presented testimony from
the prospective owner of the on-site restaurant.

Apart from the developer's witnesses, the Board also heard
testimony from its own planner, who recommended approval of the
project upon the adoption of several conditions. The Board also
heard a statement in support of the project from a
representative of the Township's administration. The
representative commented in particular about the negotiated
arrangement for Crestwood to contribute $476,000 to the Township
in off-site improvements, a feature that we shall discuss in
more detail in Part III of this opinion.

No members of the public appeared at the May 24 meeting in
opposition to the development. The only member of the public
who addressed the Board concerning the project was the nephew of
a nearby property-owner, who told the Board that his aunt
intended to sell her own land in the future and desired to have
the entire area re-zoned to avoid the need for a similar
variance. Because there were no objectors at the meeting, the
Board did not hear any competing expert testimony, and the
developer's witnesses were not questioned by any opposing
counsel.

After testimony concluded, the Board members voted seven to
zero to approve the application, issuing preliminary site plan
approval for the entire site and final site plan approval for
phase one. On June 14, 2005, the Board adopted a resolution
memorializing its actions granting use and bulk variances, as
well as the preliminary and final site plan approval. On June
22, 2005, a public notice was published, reflecting that the
confirming resolution had been adopted by the Board.

In its resolution, the Board summarized Crestwood's
application and made the following findings of fact:

1. The Applicant has submitted proof of
notice and proof of publication and the
Zoning Board has jurisdiction to hear this
matter.

2. Diocese is the owner of property
located at Yardville-Hamilton Square Road in
the Township of Hamilton, Map 213, Section
2173, Lots 18-21, Zone RD.

3. The Hamilton Township Zoning Ordinance
permits mixed use development (Section 160-
80) in the RD Zone but on larger tracts of
land.

4. Applicant's proposed site is in an area
of mixed use development already.

5. Applicant testified [that] affordable
housing meeting COAH standards would be part
of its residential development.

6. The use variances and bulk variances
would allow the project to be developed
appropriately for mixed uses without
detriment to the Master Plan or Zone Plan.

7. Considerable beneficial interest can be
found in approving Applicant's use. The
location of the use adds flexibility to the
zone, encourages age restricted housing,
provides quality ratables and will generate
less school and traffic impacts.

8. The zoning purposes of the Township can
be found to be advanced by development of
the site as proposed.

The resolution then recited that the Board granted the
application, subject to numerous conditions, including: lot
consolidation; approvals from county entities; submittal of
revised site plans; compliance with certain lighting,
landscaping, signage and sidewalk specifications; a ban on
twenty-four-hour commercial uses; and the $4,000 per-residential
unit payment for recreation improvements to Veterans Park.
On August 5, 2005, plaintiffs filed a complaint in lieu of
prerogative writs in the Law Division challenging the Board's
approval of the Crestwood application. The complaint alleged,
among other things, that: (1) the public notice for the project
was deficient; (2) the grant of a use variance was improper
"rezoning by variance"; (3) the application included an
"unlawful exaction," or an "illegal quid pro quo," in requiring
Crestwood to pay $4,000 per residential unit to the Township for
"unspecified 'improvements to Veterans Park' and including the
'development of an amphitheater in the park'"; (4) inadequate
information was provided to the public at the time of
memorialization; and (5) the stormwater management plan devised
by Crestwood was "materially defective." The named defendants,
Crestwood and the Board, denied these contentions, and moved for
summary judgment.

After hearing oral argument, the trial court issued a
written opinion on September 11, 2006. The court sustained the
Board's resolution in all respects, except condition number
seventeen, the $4,000 per-residential unit payment to the
Township. The court excised that condition from the resolution.
This appeal ensued. On appeal, plaintiffs essentially
reiterate the contentions they made before the trial court
concerning inadequate notice, and the alleged procedural and
substantive deficiencies in Crestwood's application. Plaintiffs
also contend that the trial court should not have excised the
improper $476,000 contribution, but rather should have
invalidated the approvals in their entirety.

II.
We first address the sufficiency of the public notice that
Crestwood provided concerning its application to the Board. On
April 2, 2005, Crestwood placed the following notice in The
Trenton Times, a daily newspaper:

OWNER/APPLICANT

Crestwood Construction, LLC

APPLICATION NO. 05-02-011

DATE March 31, 2005

P U B L I C N O T I C E

PLEASE TAKE NOTICE that on the 12th day
of April 2005, at the Township of Hamilton
Municipal Building, 2nd Floor, Council
Chambers, 2090 Greenwood Avenue, Hamilton
Township, New Jersey, the Zoning Board will
hold a hearing on the application of the
undersigned, at which time and place
interested persons will be given an
opportunity to be heard. Said meeting will
take place at 7:00 P.M.

The location of the premises in
question is located in the RD zoning
district, Map 213, section 2713, lots 18-21,
and more commonly known as Yardville-
Hamilton Square Road. The applicant is
seeking a use variance for two non-permitted
uses in this zone--age-restricted rental
units and retail/office units, for two
separate uses on one property, together with
bulk variances for front and side yard
setbacks, total of two sides and rear yard
setbacks, sign setback; variance for
separation distance between buildings,
variance for buffer distances, approval for
preliminary site plan for the purpose of
constructing a mixed use development;
approval for final site plan for Phase I;
and such other relief as the Board deems
necessary. A copy of said application is on
file at the Township of Hamilton Municipal
Building in the office of the Land Use
Coordinator and may be inspected during
office hours by all interested parties prior
to said meeting.

Crestwood, through its counsel, also mailed an identical notice
to sixteen property owners shown on the Township's tax records
as owning lots or easements within two hundred feet of the
subject property. Four of those nearby property owners are
among the plaintiffs in this litigation.1

As we have already noted, the April 2 public notice
contains a typographical error, referring to the subject
property being in Section (or Block) "2713" rather than Section
"2173." The error is contained in both the notice published in
the newspaper as well as in the certified letters sent to the
nearby owners. However, Crestwood's development application on
file in the Township reflected the correct "2173" Section
number.2 Additionally, the Board's May 24 agenda also listed the
correct Section number for the property.

Plaintiffs argue that the typographical error in the
original public notices for the application is a fatal defect,
requiring the Board's action on the Crestwood application to be
nullified. Plaintiffs note that "2713" Yardville-Hamilton
Square Road is vacant land located over a mile from the actual
site. They maintain that the notice's mistake as to the Section
number was material, and had the potential to lull neighbors
into believing that the proposed development was more than a
mile from their homes. According to plaintiffs, the error was
compounded by the absence of any indication in the notice
listing the Diocese of Trenton as the then-current owner of the
property. The error was further compounded, they assert, by
Crestwood's failure to mail them individual follow-up notices
after the matter was not reached by the Board on either the
initially advertised date of April 12 or at the Board's next
regular meeting of May 10. Plaintiffs also claim that the
application's status became further confused by its absence from
the April 12 Board agenda, and the terse oral reference to its
postponement at the end of the April 12 meeting.3

Defendants maintain that the error in the section number in
Crestwood's original public notice was nothing more than a minor
clerical glitch. They point out that tax map 213, which was
correctly identified in the notice, clearly shows the property
at issue as being located directly across from the Briarwood
subdivision on Yardville-Hamilton Square Road and not over a
mile away. The application accurately describes the parcel as
the Diocese's property on Yardville-Hamilton Square Road. The
developer had posted a sign on the property while its
application before the Board was pending. Further, the
Township's land use coordinator submitted to the trial court a
certification attesting that he had received several inquiries
from neighbors regarding the application while it was pending,
and that the persons he spoke with either knew the correct
location before they called him or had him describe the location
to them.

The trial court concluded that, under the circumstances,
the typographical error in the notice was inconsequential. We
agree.

N.J.S.A. 40:55D-11 requires that public notices for a
proposed variance include, among other information, "an
identification of the property proposed for development by
street address, if any, or by reference to lot and block numbers
as shown on the current tax duplicate in the municipal tax
assessor's office . . .[.]" Ibid. We concur with the trial
court that, despite the clerical error, Crestwood's notice
reasonably complied with this requirement for "an identification
of the property." Ibid. The inclusion of the block and lot
designations are not even mandatory in all instances, as the
statute permits the applicant to include simply a street
address. Ibid. We are mindful that in this case the subject
property, as a vacant lot, did not have a numerical street
address. However, the cross-reference to tax map 213 sufficed
to alert someone reading the notice of the site's correct
location. The notices were properly mailed, as required by the
statute, to all property owners within two hundred feet. See
N.J.S.A. 40:55D-12(b). A reasonable person receiving such a
notice in the mail would not expect that the property would be
situated over a mile away. Taking these considerations as a
whole, we sustain the trial court's finding that the
typographical error in this case did not vitiate the legal
sufficiency of the notice.

We also concur with the trial court's rejection of
plaintiffs' claim that Crestwood was obligated to mail them new
individual notices advising that its application had been
adjourned to a May 24 special meeting before the Board. As the
trial court correctly observed, "[t]here is no . . . provision
in the [statute] requiring additional certified notices if an
application is carried to another meeting. The [statute] only
requires initial notice." Here, the Board's chairman announced
on the record the adjournment of the hearing to a future date.

That suffices under the Municipal Land Use Law ("MLUL"),
N.J.S.A. 40:55D-11. See Kramer v. Bd. of Adj. of Sea Girt, 45
N.J. 268, 276-77 (1975); see also Cox, New Jersey Zoning and
Land Use Administration, § 27-1.5 (2007).

We also concur with the trial court's pragmatic observation
that, given the common practice of zoning boards to consider
complex variance applications over multiple meetings, "[i]t is
unreasonable to conclude that new [individual] notice is
required when a hearing is continued." Interested neighbors or
members of the public have an obligation to attend the first
meeting, or otherwise stay reasonably abreast of the status of
the application, where, as here, adjournments are orally
announced on the record at Board meetings and thereafter
confirmed in advertised public notices.

As an entirely separate ground for reversal, plaintiffs
contend that the public notice of Crestwood's variance
application was substantively deficient under Perlmart, supra,
295 N.J. Super. at 241, in failing to alert recipients
sufficiently to the "nature of the matters to be considered" at
the variance hearing. N.J.S.A. 40:55D-11. In particular,
plaintiffs argue that the notice here violated Perlmart and the
MLUL because it failed to disclose that (1) the development
would include a "potentially controversial" restaurant, one that
would be seeking a liquor license; (2) the project would include
no on-site recreational facilities; (3) the project's stormwater
management system was allegedly undersized; (4) no landscape
buffers would be erected; and (5) the project would require the
widening of Yardville-Hamilton Square Road.

In its written decision, the trial court did not explicitly
address these contentions, nor did it cite to Perlmart. The
trial court did observe that defendants had "made good faith
efforts [in the notices] to describe the type of relief sought
in the land-use application," and that the notices sufficiently
"described each variance requested by Crestwood." Plaintiffs
contend that this is not so.

We begin our own analysis of these contentions with a
recognition that proper public notice in accordance with the
requirements of the MLUL is a jurisdictional prerequisite for a
zoning board's exercise of its authority. Perlmart, supra, 295
N.J. Super. at 237. A board's decision regarding a question of
law, such as whether it has jurisdiction over a matter, is
subject to de novo review by the courts and thus is afforded no
deference. TWC Realty P'ship v. Zoning Bd. of Adj. of Twp. of
Edison, 315 N.J. Super. 205, 211 (Law Div. 1998), aff'd, 321
N.J. Super. 216 (App. Div. 1999).

N.J.S.A. 40:55D-11 specifically requires that public
notices of applications before a zoning board must state, among
other things, "the nature of the matters to be considered." We
interpreted this descriptive requirement of the statute in
Perlmart, supra. There, a developer had sought approvals from a
planning board for a major site plan, minor subdivision and
associated use and bulk variances for a planned shopping center.

Perlmart, supra, 295 N.J. Super. at 237. The public notice
issued by the developer in Perlmart accurately set forth the
date, time and place of the board hearing, identified the street
address of the property, and advised when and where members of
the public might have access to the application. Ibid.
However, the notice provided no clue that the anticipated
project was for a conditional use shopping center. Id. at 241.

Instead, the notice had merely stated in this regard that
"'[t]he minor subdivision will result in the creation of [three]
commercial lots with a total of 42.53 acres.'" Id. at 237.
We held in Perlmart that the developer's notice was
defective and failed to comply with the MLUL's mandate in
N.J.S.A. 40:55D-11 requiring notice of the "nature of the
matters to be considered" by the board. Id. at 241. In
construing that statutory requirement, we observed that:

It is . . . plain that the purpose for
notifying the public of the "nature of the
matters to be considered" is to ensure that
members of the general public who may be
affected by the nature and character of the
proposed development are fairly apprised
thereof so that they may make an informed
determination as to whether they should
participate in the hearing or, at the least,
look more closely at the plans and other
documents on file.
[Id. at 237-38 (quoting N.J.S.A. 40:55D-11)
(emphasis added).]

We reached that conclusion after consulting a variety of
analogous cases from other jurisdictions4 condemning terse public
notices that failed to achieve those aims.

As part of our analysis in Perlmart, we observed that "the
critical element of such notice has consistently been found to
be an accurate description of what the property will be used for
under the application." Id. at 238. In particular, we read the
statute to require a "common sense description of the nature of
the application, such that the ordinary layperson could
understand its potential impact upon him or her." Id. at 239.
On this score, we endorsed the view of a zoning expert cited by
the Pennsylvania court in Appeal of Booz, supra, 533 A.2d at
1098-99, observing that "'[p]eople turn out at a zoning hearing
to oppose 'a gasoline station' or a given sign or structure.
Few laymen have any idea of the difference between a variance
and [other technical zoning terms.]'" Perlmart, supra, 295 N.J.
Super. at 239 (emphasis deleted; citations omitted).
4 See, e.g., Drum v. Fresno County Dep't of Public Works, 192
Cal. Rptr. 782, 786 (Cal. Ct. App. 1983); Shrobar v. Jensen, 257
A.2d 806, 809 (Conn. Super. Ct. 1969); Appeal of Booz, 533 A.2d
1096, 1098 (Pa. Commw. Ct. 1987).

Consequently, we adopted an approach in Perlmart that
places "'emphasis on the importance of [the public notice]
accurately identifying the type of use or activity proposed by
the [land use] applicant in laymen's terms, rather than the
technical zoning term for that use . . . [.]'" Ibid. (quoting
Appeal of Booz, 533 A.2d at 1099) (emphasis deleted). We
instructed that "[w]ithout that basic information, we are not
assured that the general public understood the nature of the
application . . . [.]" Id. at 239-40.

Applying these general principles to the facts in Perlmart,
we concluded that the developer's notice there, which had merely
alluded to three "commercial" lots being created, did not
reasonably alert neighbors and the public that a conditional use
shopping center with a K-Mart department store was contemplated
for the site. Id. at 241. Accordingly, we found that the
planning board lacked jurisdiction to consider the application.
Ibid.

Similarly, in the present case, Crestwood's public notice
was deficient in failing to indicate whatsoever that the
proposed development included plans for a large sit-down
restaurant, one that was expected to seek a liquor license to
serve alcohol to its patrons. The notice merely refers to
"retail/office" uses. That generic reference would not
reasonably put a neighbor, or an interested resident, on notice
that a substantial restaurant was contemplated for the site.
Indeed, Crestwood's plans on file reflected that the 12,000
square feet of retail and office uses would be situated in two
other structures, Buildings "A" and "B," and that the 5,000
square foot restaurant would be located in a separate edifice,
Building "C," with a gazebo.

Contrary to Crestwood's present assertion set forth in its
post-argument supplemental brief, the Township's ordinance for
the "RD" zone plainly requires a variance for a restaurant in
this mixed-use context involving a parcel less than one hundred
acres. The RD zone does not include retail uses as a permitted
use for lots under one hundred acres. See Hamilton Twp., N.J.,
Land Dev. Code § 160-80(1). The RD zone does allow
"[r]estaurants or cafeterias located within a principal
building" as an accessory use. Id. at § 160-80(2)(e). However,
the zoning code specifically defines a "principal building" as
"[a] building in which is conducted the main or principal use of
the lot on which said building is situated." Id. at § 160-7
(definitional section).

It is manifest that the free-standing building in which the
5,000 square foot restaurant is to be housed on the subject
parcel is not "the main or principal use of the lot." The main
use of the site consists of the four age-restricted apartment
buildings containing 119 units. Even if we instead deemed the
retail or office uses on site as the project's "main" features,
the record is barren of any proof that the contemplated
restaurant was going to be an accessory use inside of what
principally would be a retail building or an office building.
To the contrary, the plans call for the restaurant to have its
own separate structure, Building C.5

Although no member of the public appeared at the May 24
hearing to object to the proposed restaurant, the restaurant
drew a substantial amount of attention in the applicant's
exhibits, in the testimony of the witnesses, and in questions
from the Board. The restaurant is expected to be open seven
days a week, serving lunch and dinner daily until ten or eleven
p.m. It is allotted 56 of the 110 on-site commercial parking
spaces in the developer's plans. Crestwood's traffic expert
specifically classified the restaurant, for trip generation
purposes, as "a high-turnover restaurant." The Board considered
testimony about the restaurant's parking needs, and their
interplay with the parking needs of the other uses on site. The
Board members also expressed concerns about the size of trucks
that vendors would use to make deliveries to the restaurant, and
about the possibility that large tractor-trailers might be
coming and going to the property. Although no contract had yet
been signed, the restaurant's anticipated owner, who presently
operates a restaurant with a liquor license in Trenton, appeared
at the hearing and fielded several questions from Board members.

In sum, it is readily apparent that this 168-seat, 5,000
square foot restaurant is a component of this development that
would be of heightened concern to neighbors and other members of
the public, particularly as to issues of traffic, parking, noise
and the possible consumption of alcoholic beverages on site.6 It
was therefore insufficient, under N.J.S.A. 40:55D-11 as
construed in Perlmart, for the notice to omit any reference to
such a restaurant. The notice's generic allusion to
"retail/office units" would not reasonably alert a recipient of
the notice that such a dining establishment was anticipated.
Had the notice been explicit about the restaurant, a reader
would have had greater incentive to go down to the municipal
building and inspect the developer's plans, and/or attend the
Board meeting. The notice simply was legally deficient in this
regard.7

We are not persuaded, however, by plaintiff's other claims
of descriptive deficiencies in the notice. Neither the MLUL nor
Perlmart requires the notice to be exhaustive. The remaining
non-disclosures alleged by plaintiffs generally involve various
subjective topics, such as the quality of the stormwater
management plan, or other topics that do not involve a
description of what the property would actually be used for.
Accordingly, we reject the rest of plaintiffs' notice
contentions.

III.

We next turn to plaintiffs' arguments concerning the
illegal exaction of a $476,000 payment from the developer, and
the trial court's deletion of that condition without remanding
the project for further public hearings before the Board.
Condition seventeen of the Board's resolution approving
Crestwood's application stated as follows:
Applicant will contribute $4,000 per

residential [u]nit for recreation
improvements to Veteran[s] Park at the time
each Certificate of Occupancy is issued.
This condition, like all others listed in the resolution,
applied to Crestwood's entire project, including the "use
variance[s], bulk variances, preliminary site plan approval for
Phases I, II and III, and [the] Final Site Plan approval for
Phase [I]." The total cost of the $476,000 contribution is
calculated by multiplying $4,000 by 119 units.

The precise genesis of this $476,000 off-tract contribution
is not entirely clear from the record. The most detailed
explanation about this arrangement was supplied by a Township
administrator, Lloyd Jacobs, who addressed the Board after the
developer's final witness testified. We present his statement
in full:

MR. JACOBS: Thank you. Mr. Chairman,
members of the board, the administration has
worked very diligently with the applicant on
this particular application.

We've had a number of meetings. We
believe that this particular proposal is
good for the Township, will actually enhance
the development and properties in this area.
We have suggested over this period of
time a number of changes which you're all
familiar with now. Some of the most
important one[s] being the reduction of
height of these buildings from three stories
to two, adding some of the units to the
rear, moving a set-back further back. Twin
Ponds feature I think is going to be a major
aesthetic asset to the area.

So, we are very much in favor of this
particular proposal. Some of the comments
you've heard from staff get to the quality
of the development. We talk about
pedestrian accessibility, safety.

The road consistency will be adjacent
development, minimizing road cuts, and these
kinds of things that are -- kinds of
comments that we have with all of our
applications.

I would say another major feature here
with this development is in lieu of
providing recreational features on the site
with Veterans Park directly across the
street. The developer has agreed to
contribute $4,000 per unit, which would be
one of the conditions for this application
and request [to] be granted. $2,000 per
unit, which Mayor Gilmore has --
UNIDENTIFIED MALE SPEAKER: [$]4,000.
MR. JACOBS: [$]4,000. What did I say?
$4,000 per unit that would be contributed.

The mayor has had a vision for some time now
to put some fire and some life into the
amphitheater proposal for Veterans Park and
has asked that we the board (indiscernible)
on this application should you decide to go
in that direction that the $4,000 per unit
contribution would be dedicated towards the
design and development of an amphitheater in
Veterans Park which is one type of use that
we don't have in the park.

The mayor has done an awful lot to
enhance the uses in that park and this is
what he would like to have that contribution
dedicated to. Thank you.

THE CHAIRPERSON: Thank you, Mr.
Jacobs.
[Emphasis added.]

This negotiated monetary contribution was incorporated into the
Township planner's recommendations to the Board as a condition
of the project's approval.

The developer's $4,000 per-unit payment appears to have
been intended, at least in part, to respond to the absence from
the developer's plans of any on-site recreational facilities for
the senior citizens who would be living in the 119 units there.
The "RD" zone does not specifically require any such
recreational facilities, which flows from the fact that
residential units are not, absent a variance, a permitted use in
the RD zone. However, such on-site facilities are required in
the zoning for Planned Retirement districts outside of an "RD"
zone. Hamilton Twp., N.J., Land Dev. Code § 160-88(1)(a).

Recognizing that situation, the Township's land use coordinator,
Michael Guhanick, wrote a letter to the developer on April 26,
2005, identifying the absence of such on-site recreational
facilities as one of five "major planning issues" for the
project. In that letter, Guhanick stated:

Finally, the fact that absolutely no
recreational amenities are proposed for this
adult community is contrary to Township
policy and requirements. The necessity to
provide recreational amenities similar to
that outlined in the Planned Retirement
District ordinance is important.
[Emphasis added.]

The record shows that Crestwood already was obligated, as a
condition of Board approval, to pay $145,500 into the Township's
Transportation Improvement District ("TID") fund. The TID fee
is mandatory for developers and funds various transportationrelated
projects. It is not the subject of any legal challenge
here. In his presentation before the Board at the May 24
meeting, the Township's planner, Allen Schectel, referred to
both the $145,000 TID fee and the additional $476,000 off-tract
contribution as conditions of the proposed approval. As
Schectel noted:

The applicant is subject to payment of
the TID fee. That's the amount of $145,500.
And also, it's traditionally, with senior
housing -- with the other senior housing
that we've had . . . that are condominium
ownership -- there were recreational
facilities built in the projects. Here,
they are adjacent to Veterans Park. What
the applicants agreed to do is provide
$4,000 per unit to the Township, for
improvements to be made in Veterans Park.

We would suggest that half of that money be
paid with Phase One and the remaining half
with Phases Two and Three, when that comes
up.

Following the presentations at the May 24 meeting, the
Board members said little about the $4,000 per-unit
contribution. There are abbreviated references to the
contribution at the end of the hearing, concerning the timing of
the payments, but there was no substantive discussion.
As part of the action in lieu of prerogative writs they
filed in the Law Division, plaintiffs challenged the $476,000
payment as an illegal exaction. They argued that the
developer's payment lacked a sufficient nexus to any on-site
legal obligations of the developer and, therefore, was
improperly relied upon by the Board as a reason for allowing the
numerous variances sought by Crestwood. Although the defendants
initially opposed those contentions of illegality in the Law
Division, the Board's counsel8 advised the judge after oral
argument that it would not oppose the court deleting the
monetary condition from the approved plans.

The trial court concluded that the $4,000 per-unit
contribution was an illegal exaction. The court relied in part
upon N.J.S.A. 40:55D-42, which specifically limits off-tract
monetary contributions by developers under that statutory
provision to "the pro-rata share of the cost of providing only
reasonable and necessary street improvements and water, sewerage
and drainage facilities, and easements therefor, located offtract
but necessitated or required by construction or
improvements within such subdivision or development." The trial
court correctly recognized that Crestwood's $4,000 per-unit
payment was not designated for those particular sorts of offsite
improvements.

The trial court also correctly recognized that a land use
board's imposition of a financial contribution for an off-tract
purpose "must be authorized by statute and implemented by
municipal ordinance." Nunziato v. Planning Bd. of Edgewater
Borough, 225 N.J. Super. 124, 131 (App. Div. 1988). Absent such
codified standards, "the possibilities for abuse in such
negotiations between an applicant and a regulatory body, no
matter how worthy the cause, are unlimited." Id. at 133-34.
"Approvals would be granted or withheld depending upon the board
members' arbitrary sense of how much an applicant should pay."
Id. at 134.

Consequently, we held in Nunziato that a municipality's
"free-wheeling bidding" resulting in a commitment from a
developer to subsidize the municipality's general affordable
housing fund, as a condition of approval of the developer's site
plan application to build condominiums on its property, was
"grossly inimical to the goals of sound land use regulation."
Ibid. Such quid pro quo arrangements are invalid. See also
N.J. Builders Ass'n v. Bernards Twp., 108 N.J. 223, 237-38
(1987) (invalidating condition that site plan applicant
contribute to off-site improvements needed because of general
growth throughout the municipality); Tennis Club Assocs. v.
Planning Bd. of Twp. of Teaneck, 262 N.J. Super. 422, 433 (App.
Div. 1993) (invalidating condition that developer purchase offtract
site for the purpose of improving it); Grand Land Co. v.
Twp. of Bethlehem, 196 N.J. Super. 547, 552 (App. Div. 1984)
(invalidating condition that subdivision applicant donate offsite
land for agricultural use), certif. denied, 101 N.J. 253
(1985). Indeed, "[o]ur case law has been extremely sensitive to
the threat presented by unlawful exactions imposed by a
municipality on developers, whether the developers are reluctant
or enthusiastic participants in the transaction." Swanson v.
Planning Bd. of Twp. of Hopewell, 149 N.J. 59, 67 (1997) (Stein,
J., concurring).
35 A-1022-06T1

We concur with the trial court that Crestwood's agreed-upon
$4,000 per-unit contribution to the Township for off-site
improvements to Veterans Park was an invalid condition.
Although Veterans Park is across the street from the subject
property, there was no guarantee that the Township would build
an amphitheatre there, or that Crestwood's financial donation
subsequently would be appropriated by the Mayor and Council for
that specific purpose. We only know from Jacobs's presentation
that the amphitheatre was part of the then-mayor's "vision."
There was also no proof in the record forecasting how many
residents of Twin Ponds would cross the two lanes of Yardville-
Hamilton Square Road and use the park facility.

Moreover, the record is devoid of any proof as to the
method by which the $4,000 per-unit figure, and the $476,000
overall contribution, was calculated. No budget figures were
supplied. We cannot tell how much the proposed amphitheatre
would cost to build or maintain, or what the developer's share
of the overall expense would be. The numbers simply have no
explanation in the record, other than they were negotiated
between Crestwood and the Township administration. This
bespeaks the very sort of "free wheeling bidding" we proscribed
in Nunziato. The trial court properly declared the condition
unenforceable.

The trial court declined, however, to set aside the Board's
variance approvals because of the invalid condition. Instead,
the court excised the condition, leaving the rest of the Board's
determination intact. In support of that approach, the court
likened the circumstances here to those in Twp. of Marlboro v.
Planning Bd. of Twp. of Holmdel, 279 N.J. Super. 638, 643-44
(App. Div.), certif. denied, 141 N.J. 98 (1995).

In Marlboro we struck down a planning board's insistence
that two developers make cash contributions towards the costs of
a fire truck and a Township recreation center, because such
donations were "beyond the authorization of the [MLUL] statute."
Id. at 643. However, we did not invalidate the developers'
approvals on the whole. We distinguished the facts before us in
Marlboro from those in Nunziato, recognizing that
there is no question that the parties [in
Marlboro] acted in good faith in respect of
the . . . contributions, that those
contributions were incidental to and a
relatively minor factor in an overall
package of legally required contributions,
and, perhaps most significantly, that the
contributions were viewed by both parties as
justifiable because they were intended to be
used by the municipality to address
anticipated municipal problems attributable
to the proposed development.
[Id. at 643-44 (emphasis added).]

We also found significant in Marlboro that "the amount of the
contributions was reasonably related both to the costs [for the
fire truck and recreation center] expected to be incurred and
the developer[s'] respective fair share[s] thereof." Id. at
644.

In the present case, the trial court determined that the
$476,000 contribution from Crestwood was similar to the
exactions in Marlboro because the court found that the parties
had acted in good faith, the funds were incidental and a
relatively minor factor in the overall package, and the funds
were intended to be used to address problems attributable to the
project. The court did not comment on the additional facet of
Marlboro that had recognized a reasonable link between the
amount of the developers' "fair share" contribution and the
overall costs to be incurred by the municipality.

Although the record is sparse on the subject, we accept the
trial court's finding that the proposed $4,000 per-unit
contribution represented "a good faith gesture to provide
recreational facilities in Veteran[s] Park for the entire
community."9 We also defer to the court's perception that the
payment had some nexus to the subject property, in light of the
"proximity of Veteran[s] Park to the development[, which] will
provide seniors with many recreational and cultural
opportunities." We part company with the trial court, however,
in its conclusion that the donation was an "incidental" and
"relatively minor" factor in approval of the developer's land
use application.

To the contrary, the Township administrator who addressed
the Board, Jacobs, characterized the $4,000 per-unit charge as a
"major feature" of the plan, one provided "in lieu of providing
recreational features on the site."10 No one at the hearing
expressed disagreement with that characterization. The
characterization dovetails with earlier correspondence from the
Township's land use coordinator, Guhanick, stressing to
Crestwood, as a "major planning issue," the "necessity" for the
developer to provide recreational amenities, which Guhanick
underscored as "important."

Although the Board members at the May 24 meeting did not
say much about the exaction, we do not regard their relative
silence as indifference. According to Jacobs, the mayor wanted
the amphitheatre built as part of his "vision," that his
administration had "worked very diligently with the applicant,"
that "a number of meetings" had taken place, and that
Crestwood's donation would "put some fire and some life into the
amphitheatre proposal." It is not inconceivable that the Board
members regarded the negotiated contribution as a fait accompli,
and thus had little incentive to second-guess it. Given the
context, we do not share the trial court's sense that this halfmillion
dollar payment was a minor and insignificant aspect of
the approved plan.

As illustrated in Marlboro, our case law affords the
courts, in appropriate situations, the discretion to excise from
a land use approval an invalid condition. See, e.g., Berninger
v. Bd. of Adj. of Midland Park, 254 N.J. Super. 401, 407 (App.
Div. (1991) (excising an invalid condition on a variance that
had been in place for over fifty years), aff'd, 127 N.J. 226
(1992); Sherman v. Borough of Harvey Cedars Zoning Bd. of Adj.,
242 N.J. Super. 421, 434-35 (App. Div.) (excising a height
restriction imposed as a condition to a variance issued to
renovate a dwelling, where the zoning board had imposed that
condition as the apparent consequence of an "internal
inconsistency" in the builder's plans, and where a "careful
reading" of the hearing transcript did not support a conclusion
that the height restriction truly was "material to [the board's]
grant of a variance"), certif. denied, 122 N.J. 404 (1990).

Conversely, in other situations, the invalid condition may
have been of such sufficient importance that the board might
have chosen to deny the application, on legitimate grounds,
without it. In such circumstances, the courts have remanded the
matter back to the municipal board for a new determination on
the merits. See, e.g., Houdaille Constr. Materials, Inc. v. Bd.
of Adj. of Tewksbury Twp., 92 N.J. Super. 293, 304 (App. Div.
1966) (remanding matter back to Board to reconsider the grant of
variance after ten illegal conditions were stricken); Gayatriji
v. Borough of Seaside Heights Planning Bd., 372 N.J. Super. 203,
219-20 (Law Div. 2004) (finding that an illegal condition that a
motel operate only on a seasonal basis was "inseparable from the
variance" allowing more units, and that both the condition and
the variance must be stricken). See also Cox, supra, § 28-4.3.

Because we are persuaded that the $476,000 illegal exaction
was not a minor factor, and that the subsidized improvement of
Veterans Park was an important attempt to mitigate the absence
of any recreational amenities on the project site, we conclude
that the better course here would have been to remand the matter
for reconsideration before the Board. It is readily conceivable
that a neighbor, an interested resident, or a member of the
Board might have objected to Crestwood's plans, or at least
might have urged Crestwood to undertake alternative beneficial
measures, if the project had been represented to the Board
without its half-million dollar sweetener. For example, a
remand might have prompted local residents, or the Board itself,
to explore with Crestwood whether its building plans on this
10.9-acre site could be modified or scaled back to accommodate
the recreational needs of the senior citizens who will be living
there, thus lessening the demands they would place on public or
private recreational facilities off site. We appreciate the
equitable force of plaintiffs' assertion in their brief that the
court's excision of the developer's substantial contribution to
a public park could leave residents "worse off" rather than
better off.

We therefore reaffirm the trial court's well-supported and
unappealed finding that the developer's $476,000 negotiated
contribution was an improper exaction. However, we also
conclude that the condition should not have been excised without
affording the public an opportunity on remand to address the
ramifications of that excision. The matter now should return to
the Board for such a supplemental public hearing.

IV.

Our independent conclusions in Parts II and III of this
opinion, that the developer gave inadequate public notice of the
proposed restaurant and that the Board should have renewed
public hearings on the Crestwood application once the $476,000
exaction was nullified, make it unnecessary for us to address,
at this time, the balance of plaintiffs' arguments. Since the
matter must be reconsidered by the Board,11 we anticipate that a
fuller record concerning this project will be created in the
near future. Such a record may well include expert testimony
offered by plaintiffs or other potential objectors, as well as
responsive proofs and supplemental expert opinions on behalf of
the developer. The Board itself and the municipality's own
experts may have additional insight, questions, or proofs.
Given these prospective events, it would be unwise to rule
now on plaintiffs' other arguments, i.e., that the project as a
whole fails to satisfy the positive and negative requirements
for a variance under N.J.S.A. 40:55D-70 and Medici v. BPR Co.,
107 N.J. 1, 18 (1987); that the project embodies improper
"zoning by variance," see Saddle Brook Realty, LLC v. Twp. of
Saddle Brook Zoning Bd. of Adj., 388 N.J. Super. 67, 80 (App.
Div. 2006); that the approvals lack substantial credible
evidence in the record; and that project's stormwater management
plan is inadequate. Those issues should abide the remand, and
should not be preempted by a preliminary opinion of this court
based upon the present record amassed before the Board in the
absence of any objectors.

The efficacy and scope of a remand is complicated, however,
by the fact that the project has already been substantially
constructed, according to what we recently learned from counsel
at oral argument. In particular, we have been informed that at
least one of the four buildings for age-restricted housing is
nearly complete, and that senior citizens may begin to lease and
occupy those units as early as January 2008. We also have been
advised that the site preparation work for all of the other
buildings has been performed, and that various contracts have
been executed and are being implemented.

Plaintiffs had sought a stay of construction, pending
appeal, before the Law Division. In considering that motion,
the trial court found that Crestwood had "made a conscious
business decision to proceed with preliminary stages of
development," and that it would "assume[] the risk of paying for
these costs and restoring the site should the Appellate Division
modify the decision by the Board and the trial court." The
trial court thus denied the requested stay.12

Plaintiffs urge that we should impose what they
characterize as the "normal remedy" of reversing and remanding
the judgment, in the meantime halting further construction on
the site. Plaintiffs also suggest that the court consider
requiring the developer to dismantle unlawfully built structures
on the site. See Bubis v. Kassin, 184 N.J. 612, 631 (2005);
Steiger v. Lenoci, 323 N.J. Super. 529, 537 (App Div. 1999);
Blaine v. Ritger, 211 N.J. Super. 644, 656 (App. Div.), certif.
den., 105 N.J. 546 (1986). We are not certain that such drastic
interim measures disrupting the status quo are warranted,
particularly because senior citizens, contractors, vendors and
other innocent third parties may be unduly harmed by such an
injunction. Moreover, the variances may well be reaffirmed by
the Board, in full or in part, on remand and thereafter might be
sustained on renewed consideration in the Law Division.
We simply do not have sufficient factual information, nor
sufficient prescriptive suggestions from the litigants, to
determine the most sensible interim solution to this practical
quandary. In one respect, as a consequence of our ruling about
the flaw in the notice, the restaurant's construction must cease
for the time being, as the Board lacked jurisdiction to approve
the restaurant without proper notice. The other components and
conditions of the project, to the extent they are challenged,
may also be re-examined by the Board on remand, as a consequence
of invalidating the $476,000 exaction.13 However, it is not
readily apparent, from the limited information we have before
us, whether the balance of equities favors the immediate
discontinuation of some or all of the ongoing construction not
involving the restaurant. See Crowe v. De Gioia, 90 N.J. 126,
134 (1982).

For these reasons, we refer the delicate issues of interim
relief initially to the Law Division, again with the exception
that the restaurant shall not be further constructed until the
proceedings on remand concerning the restaurant are concluded.
Accordingly, the Law Division shall conduct a case management
conference within fourteen days of this opinion, inviting
counsel to present at such a conference their practical
suggestions as well as pertinent facts and circumstances that
may aid the court in resolving these sticky time-sensitive
issues. We encourage counsel to confer and attempt to narrow,
or perhaps resolve altogether, these interim issues in a manner
that may reasonably accommodate the important public and private
interests involved. The Law Division shall also address with
counsel the establishment of an expeditious schedule for the
renewed hearings before the Board, the scope of those hearings,
and the need for testimony beyond the testimony that was
originally presented.

* * *

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