Milford Mill 128, LLC v. Borough of Milford, et al.

On May 2, 2008, the Appellate Division in Milford Mill 128, LLC v. Borough of Milford, et al. evaluated, among other issues, the validity of a redevelopment plan that required the municipal governing body to review of all proposed redevelopment projects for consistency with the redevelopment plan and any relevant redeveloper agreement as a prerequisite to the filing of an application for development with the local planning board – in this case a joint board – and prohibited the joint board from granting any variances from the plan requiring, instead, that any such deviations be approved by the governing body by way of amendment to the redevelopment plan. Ultimately, the Court upheld the redevelopment plan, but was careful to limit its ruling strictly to the circumstances presented.

In this matter, the plaintiff had sought consistency review for a redevelopment project within a redevelopment zone that contained uses not permitted in the redevelopment plan or by the underlying zoning district regulations for the subject property and proposed an intensity of development well in excess of permitted densities. When the municipal governing body failed to conduct a review of the plaintiff’s redevelopment proposal for consistency with the redevelopment plan in a timely manner, the plaintiff proceeded to file an application for variances directly with the joint board. However, this application was deemed incomplete due to the lack of the aforesaid consistency review. The plaintiff then brought suit against the municipal governing body and the joint board alleging, among other things, that the redevelopment plan was arbitrary, capricious and unreasonable and that the joint board unduly delayed its review of the application for variances and, thereby, should have been approved.

Although the Appellate Division determined that the plaintiff’s challenge to the redevelopment plan was barred by the 45-day appeal period provided by the Rules of Court, the Appellate Division addressed the plaintiff’s substantive challenge to the review procedures contained in the redevelopment plan and rejected it. According to the Court, nothing in the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1, et seq. (“LRHL”), the governing statute, “foreclose[s] a redevelopment plan from specifying, as here, that an applicant must present its proposal initially to the governing body for a determination of consistency.” Moreover, “[i]t is entirely sensible for the municipal governing body, rather than the municipal land use board or boards, to conduct an initial review of a developer’s proposal to assure that it does not amount, in effect, to a de facto repeal of, or amendment to, the redevelopment plan.”

The Appellate Division also upheld the provision in the municipality’s redevelopment plan that restricted the joint board’s review of variance applications as applied to the instant circumstances where “the massive scope of plaintiff’s proposal” was in effect an attempt “to rezone the entire redevelopment area.” However, the Court noted that had plaintiff sought approval of “a ‘minor exception’ to the requirements of the Redevelopment Plan, as we countenanced in Weeden [v. City Council of Trenton, 391 N.J.Super. 214 certif. denied 192 N.J. 73 (2007),] it might not have permitted the governing body to foreclose such consideration.

In short, although a victory for the municipality, the Appellate Division’s decision in Milford Mill 128, LLC v. Borough of Milford, et al. should be viewed with caution by local governments that are intent upon restricting redevelopment of designated areas through the use of pre-application review procedures or other development controls. Indeed, the Court made clear in its decision that redevelopment plans will not pass muster if they have the effect of depriving developers or landowners “of the opportunity to make use of the property in an economically productive manner.” The Milford Mill 128 opinion has been approved for publication and is officially reported at 400 N.J.Super. 96 (App. Div. 2008).