206-25 Resolution Authorizing Professional Services Agreement with Nishuane 4929-8265-3028 v.1.pdf

WHEREAS, the court in the case of Flama Const. Corp. v. Franklin Tp. 201 N.J. Super 488, 506 (App. Div. 1985) held “imposing such fees is within the authority of the planning board or board of adjustment, and that it is consistent with their role as quasi-judicial bodies”; and WHEREAS, the case of Planning Bd. of Leonia v. Borough Council of Leonia, 222 N.J.Super. 207, 211-212 (Law Div.1987) held that: neither the limiting language [of N.J.S.A. 40:55D-24] as to attorneys nor the silence as to experts grants the council any power to actively or passively interfere with the board's selection of professionals. The lack of statutory constraints within N.J.S.A 40:55D-24 on expert appointments must be construed as a delegation of unbridled discretionary power to the board. Therefore, the council resolutions purporting to direct who should act as board engineer, what work that person could or could not perform, and refusal to release funds in payment of authorized vouchers, were an impermissible attempt to arrogate the board's appointive power to itself and are void; and WHEREAS, for the calendar year of 2025 to date, Nishuane Group was paid $43,666.25 from escrow funds and $670.25 from non-escrow funds; and WHEREAS, the absence of a planning expert to assist the boards in their consideration of land use applications will prohibit the planning board and zoning board from considering completed land use applications which can result in applicants claiming default approvals as per N.J.S.A. 40:55D-10.4; and WHEREAS, appropriating additional funds to The Nishuane Group will allow the Planning Board to proceed with land use applications in progress, specifically, PB-24-01 related to West Essex Highlands, an inclusionary affordable housing project that was the subject of a court settlement agreement dated April 17, 2020 and for which the Applicant escrow are fees which become due to Nishuane Group as part of its escrow obligations; and WHEREAS, increasing the budget limit for payment of services to Nishuane Group will not result in significant payment to Nishuane Group from Township funds but will allow payments to continue from land use applicant escrow accounts, thus allowing land use applications to continue uninterrupted; and WHEREAS, N.J.S.A. 40:55D-50 provides that final approval of site plans and major subdivisions must be considered by the planning board within 45

ng land use applications to continue uninterrupted; and WHEREAS, N.J.S.A. 40:55D-50 provides that final approval of site plans and major subdivisions must be considered by the planning board within 45 days after submission of a complete application, failure to increase the budget limit of payment of services to Nishuane Group will open the Township up to automatic default approvals from land use applicants who have submitted completed land use applications but which cannot proceed to a hearing before either the Planning Board or Zoning Board of Adjustment within the time limits prescribed by statute; and