NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2001
On December 15, 1998, defendant, Washington Township Planning Board (Board), denied the application of plaintiff, W.L. Goodfellows and Company of Turnerville, Inc., for preliminary site plan approval, based upon plaintiff’s failure to demonstrate that it had secured a drainage easement that comported with the plaintiff’s own plan, and its conclusion that plaintiff did not demonstrate sufficiently that the health, safety and welfare of the surrounding properties would not be adversely affected. Plaintiff’s plan incorporated a retention basin within the property’s fifty-foot landscape buffer area and a drainage easement to accommodate and carry excess stormwater across the adjoining property and into a stormwater runoff system located on Ledon Lane. The Board denied the application, notwithstanding plaintiff’s representations to the Board that it was in the process of negotiating with its neighbor to procure the easement. Plaintiff filed its complaint in lieu of prerogative writ in December 1998, seeking to overturn the decision of the Board and for damages for violation of its rights under 42 U.S.C. 1983 and 1988. On March 16, 1999, plaintiff purportedly entered into an agreement with the adjoining property owners for the required drainage easement. On July 9, 1999, the Law Division judge denied plaintiff’s motion for summary judgment by which plaintiff sought: (1) a grant of its application for preliminary site plan approval; (2) retention of jurisdiction; and (3) a plenary hearing on plaintiff’s entitlement to monetary damages on its constitutional claims. The judge then encouraged the Board to file a motion for summary judgment, which he thereafter granted by order of August 20, 1999, dismissing plaintiff’s complaint.*fn1 Plaintiff filed a notice of appeal which we dismissed as interlocutory on September 14, 2000 because there remained, unresolved, a counterclaim by the Board for fees and expenses related to its review of plaintiff’s application. The parties thereafter entered into a settlement of the Board’s counterclaim and this appeal followed. During the pendency of this appeal, the Township of Washington, which is not a party to the within action, passed an ordinance prohibiting the existence of storm drainage facilities, including retention basins, within the fifty-foot landscape area.
