Two property owners seeking to develop warehouses in Franklin Township have successfully challenged the township’s attempt to enforce new stormwater management requirements on their pending land use applications, according to a March 13, 2026 opinion from the Superior Court of New Jersey, Appellate Division. The case concerns whether municipalities can apply recently enacted environmental ordinances retroactively to development projects already in the approval process, an issue affecting both developers and local governments statewide.
The appeal was filed by the Township of Franklin after B9 Schoolhouse Owner, LLC and Concore Realty, LLC—both owners and prospective developers—obtained summary judgment in Somerset County Superior Court on December 6, 2024. The plaintiffs had each submitted completed site plan applications for warehouse projects before the township adopted Ordinance 4419-23 on September 12, 2023. This ordinance incorporated new stormwater management (SWM) regulations passed by the New Jersey Department of Environmental Protection (NJDEP), but uniquely applied them retroactively to all pending development applications.
According to court documents, B9 Schoolhouse Owner submitted its application on May 5, 2022, which was deemed complete on August 4, 2022. Concore Realty filed its application on January 20, 2023, with completeness determined on February 21, 2023. Both applications were still under review when NJDEP amended state SWM regulations in July 2023 and when Franklin Township enacted its own corresponding ordinance later that year.
The plaintiffs argued that the township’s ordinance violated the Municipal Land Use Law’s (MLUL) “time of application” rule (TOA Rule), codified at N.J.S.A. 40:55D-10.5. This rule generally protects applicants from having newly enacted municipal regulations imposed on them after they have submitted complete development applications. Plaintiffs also claimed that state law and NJDEP regulations exempted already-filed applications from compliance with such new requirements.
In response, Franklin Township contended that its ordinance should be considered a health and public safety measure—rather than a zoning regulation—and thus would qualify for an exception under the TOA Rule allowing immediate applicability of ordinances addressing health or safety concerns.
After consolidating both lawsuits and hearing arguments in December 2025, the appellate panel reviewed whether Ordinance 4419-23 was exempt from the TOA Rule or preempted by state law. The court concluded that “the ordinance constituted a zoning regulation pertaining to SWM of development projects rather than a broader health and safety measure applying widely to the general public.” It reasoned that while stormwater management has implications for public health and safety, this particular ordinance targeted only those submitting land use applications—not all residents or properties—and thus fell within typical planning and zoning concerns governed by MLUL.
The court cited relevant case law distinguishing between general police power ordinances (which may address broad health or safety issues) and those specifically regulating land use through zoning authority. It noted: “even if a zoning ordinance has an effect on public health and safety…that does not re-characterize a zoning ordinance as a general police power ordinance.” Because Ordinance 4419-23 focused narrowly on technical requirements for major developments as defined by MLUL—and did not purport to regulate all property owners—the court held it could not be enforced retroactively against previously filed applications.
As stated in the opinion: “the trial court did not err in granting summary judgment and applying the TOA Rule to immunize plaintiffs’ applications from the ordinance’s retroactive applicability provision.” Having resolved the dispute based on statutory interpretation alone, the appellate division declined to address further arguments regarding preemption by state law.
With this decision affirmed, B9 Schoolhouse Owner and Concore Realty are shielded from having their pending warehouse proposals subjected to Franklin Township’s revised stormwater standards adopted after their filings. The outcome provides guidance for other municipalities considering similar measures amid evolving environmental regulations at both state and local levels.
Attorneys representing Franklin Township were Louis N. Rainone and Christopher D. Zingaro of Rainone Coughlin Minchello LLC; Jonathan I. Epstein and Kristine D. Brown represented B9 Schoolhouse Owner through Szaferman Lakind Blumstein & Blader PC; John J. DeLuca Jr., of Savo Schalk Corsini Warner Gillespie O’Grodnick & Fisher PA represented Concore Realty LLC. The case was heard before Judges Rose, DeAlmeida, and Torregrossa-O’Connor under Appellate Division Docket No. A-1461-24.
Source: A146124_B9_Schoolhouse_Owner_LLC_v_Town_of_Franklin_Opinion_New_Jersey_Superior_Court_of_Appeals.pdf
