TOLL BROS., INC. v. TOWNSHIP OF LEBANON PLANNING BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0116-04T20116-04T2

TOLL BROS., INC.,

Plaintiff-Appellant,

vs.

TOWNSHIP OF LEBANON

PLANNING BOARD,

Defendant-Respondent,

and

LEBANON TOWNSHIP

LAND COALITION,

Defendant/Intervenor-

Respondent.

__________________________________

 

Argued: March 6, 2006 - Decided:

Before Judges Cuff, Holston, Jr., and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-402-02.

Carl S. Bisgaier argued the cause for appellant (Flaster Greenberg, attorneys; Mr. Bisgaier, David R. Oberlander and Tracy Siebold, on the brief).

John P. Gallina argued the cause for respondent Township of Lebanon Planning Board.

Kevin D. Kelly argued the cause for intervenor-respondent Lebanon Township Land Coalition (Kelly & Ward, attorneys; Mr. Kelly, on the brief).

PER CURIAM

In this appeal, we review an order sustaining the denial of subdivision approval of a 248 acre tract in Lebanon Township, Hunterdon County. The applicant, a major residential builder, proposed to subdivide the tract into thirty-eight lots and to construct homes on multi-acre parcels. The planning board denied subdivision approval due to the presence of an endangered species and wetlands on the property, the absence of precise sitings of wells for potable water and concerns about the adequacy of the water supply, the absence of a complete stormwater management plan, and conservation easements to protect stone rows and hedgerows on the property. The trial judge held that the planning board acted within its discretion in denying the subdivision approval and entered judgment in favor of defendant township. It is from this order that the developer appeals.

Plaintiff Toll Bros., Inc. (Toll Bros.) is the contract purchaser of 248 acres of unimproved land in the far northern corner of Lebanon Township (Township) on which it proposed to construct a development known as Mt. Lebanon Estates. The property is owned by Earl Pelio and is known as Block 50, Lot 10; Block 51, Lots 1 and 5; and Block 53, Lot 12 on the Township's tax map.

The property is located in the Highlands region of the State. There are wetlands on the property. There is also a ridge that divides the watersheds on this tract. The western watershed eventually flows into the Musconetcong River. The eastern watershed flows into Spruce Run. Both the Musconetcong River and Spruce Run are classified by the Department of Environmental Protection (DEP) as trout producing streams.

The presence of bog turtles, an endangered species in New Jersey, was recorded in wetland areas on the south side of Sharrer Road, just 1.5 miles east of Point Mountain where water drains into a tributary of Spruce Run. Finelly-nerved sedge, a rare plant, was observed on the property in 1938.

An historic structure/ruin is located on the property. The structure appears to be the remains of an A-frame home. Additionally, there are stone rows and hedgerows along both Mt. Lebanon and Sharrer Roads.

The bedrock under the property is composed of Precambrian granite and gneiss. The property is within the "Igneous and Metamorphic Zone," where the bedrock has no porosity and is impermeable for practical purposes. Accordingly, the well yields in this area are highly variable.

Eighteen homes were proposed on the northwest side of the watershed divide. The remaining twenty-four homes were proposed on the southeast side of the divide. The highest elevation of the property is 1000 feet above mean sea level and the lowest elevation is 722 feet above mean sea level.

Block 50, Lot 10 is located in the Township's Rural Residential (R-3) zone, which requires minimum lot sizes of three acres. Block 51 and Block 53 are located in the Township's Rural Residential (R-5) zone, which requires minimum lot sizes of five acres. Detached one-family dwellings are a permitted principal use in both the R-3 and the R-5 zones. The lots proposed by Toll Bros. conformed with the zoning.

Sewage disposal was to be addressed by individual septic systems. Toll Bros. submitted percolation test results and soil logs to the Hunterdon County Board of Health, which determined that "the property will be able to support the use of individual septic systems." Plaintiff submitted contour maps and preliminary construction plans, including road profiles and utility plans, as part of its preliminary plat, as well as a sediment control plan and a grading plan, all in accordance with Ordinance 17-6.3.

Pursuant to Ordinance 17-6.2(l) and (m) and 17-6.6, plaintiff submitted an environmental inventory plan. According to Ordinance 17-6.6, "[t]he purpose of the Environmental Inventory Plan is to provide the Planning Board with sufficient information concerning the natural resources of a tract so that the Board can make an informed decision concerning the potential environmental impact of the proposed development." Section 17-6.6(c)(1-10) sets forth the features an applicant must include in the plan, including: soil classifications and depth to seasonal high water; flood hazard areas; wetlands on the tract; streams, water bodies and ditches; topography and slopes; tree groupings; any threatened and endangered species; any historic and cultural resources, and any stone rows, bridges or entrance gates to the property. If any of this information shows conditions that might affect the proposed development, the Board may require the applicant to address "specific impacts of the proposed development . . . relating to water quality, storm water management, noise, air quality, and the loss of forest and habitat."

Defendant Township of Lebanon Planning Board (the Board) may require additional information and reports to evaluate the information provided in the environmental inventory plan, including the probable impacts of the development and any environmental impacts that cannot be avoided. The application should also describe any mitigation measures the applicant can take to minimize environmental damage.

Plaintiff performed an aquifer test and analysis pursuant to Ordinance 17-6.7(c)(1). The aquifer test was based on a hydrogeologic analysis of the area and was reviewed by the Board's hydrogeologist, Matthew Mulhall.

According to Ordinance 17-7.1, "[p]rior to the granting of final approval, the subdivider shall have installed improvements required by the Planning Board or have given a performance guarantee sufficient to cover the costs of said improvements." Improvements include a stormwater disposal system, a sanitary sewage disposal system, and provisions to "provide each lot with an adequate and continuous supply of potable water," private utilities, and vehicular and pedestrian improvements, including improvements to the roads.

Section 17-8.5(b) of the Ordinance provides:

[w]here a subdivision is traversed by a watercourse, drainageway, channel or stream, or where it is desirable to preserve other areas within a subdivision because of soil conditions, rock outcroppings, tree masses, wildlife habitat, vistas, or other significant horticultural, environmental or natural features, there shall be provided a drainage and/or conservation easement of sufficient area and width to protect and preserve the aforementioned features. Such easements shall be deeded to the Township prior to final subdivision approval . . . .

The Ordinance also provides that the Board may, after "adequate investigation," withhold approval when "there is a question of the suitability of a lot or lots for their intended use due to factors such as rock formations, flood conditions, high water table, sewage disposal, excessive topographic slope or similar circumstances."

On March 30, 2001, Toll Bros. initially applied to the Board for preliminary major subdivision approval for a forty-two lot subdivision. Toll Bros.'s application was deemed complete on August 7, 2001, and its application was presented to the Board commencing on August 21, 2001.

A. Roads

Toll Bros.'s engineer, Donald Schlachter, presented the plans for Mt. Lebanon Estates, which included twelve lots on a 1500-foot cul-de-sac to be known as Jefferson Court and six lots on a 1000-foot cul-de-sac to be known as Washington Court. Toll Bros. proposed two lots with direct access to Sharrer Road, one lot with direct access to Turkey Top Road, and twenty-one lots with direct access to Mt. Lebanon Road. Schlachter explained that the average lot sizes in the proposed development exceeded the requirements of the Ordinance.

The roads leading to Washington and Jefferson Courts were originally twenty-four feet wide with roadside swales and a traditional drainage system that would collect runoff and deliver it to drainage basins. Jefferson Court and Washington Court each had an individual drainage basin. These detention basins would discharge into existing on-site streams. Each lot would be served by an individual well and an individual septic system.

Because there were substantial wetlands on the property, Toll Bros. applied to DEP for a Letter of Interpretation regarding minimum buffers for the wetlands. Schlachter advised the Board that DEP would likely impose a 150-foot buffer for the wetlands on the east side of Mt. Lebanon Road, which was already shown on the plans. Schlachter stated that he believed a DEP Stream Encroachment permit might be necessary. In Schlachter's professional opinion, DEP would issue all of the necessary permits for the project. He concluded that Toll Bros.'s application complied with all of the "pertinent land use ordinances for the Township."

The Board disagreed and questioned Schlachter about the Township's newer Ordinance provisions. Schlachter stated he was aware that Toll Bros. had not yet complied with the new fire protection ordinance but that revisions to the plans would show that Toll Bros. complied. Environmental consultants hired by Toll Bros. would submit the environmental inventory plan. He said he did not know the exact status of Toll Bros.'s aquifer analysis. He explained that aquifer testing had not been required when Toll Bros. filed its plans.

On October 2, 2001, Toll Bros. presented completely revised plans to the Board. Schlachter testified that Toll Bros. eliminated three lots from the proposed development; one lot would merge into an adjacent lot and the other two lots would become open space. The remaining thirty-nine lots continued to meet minimum lot area requirements.

Toll Bros.'s plans depicted driveways with turnarounds. Schlachter explained that there were environmental reasons to support Toll Bros.'s choice to provide a turn around for each driveway, rather than reverse frontage or parallel streets or access roads.

Toll Bros.'s traffic engineer, Gary Dean, testified that for nearly a mile within the project, Mt. Lebanon Road measured eighteen and one-half feet wide. Dean opined that Mt. Lebanon Road is a minor collector road as defined by the Residential Site Improvement Standards (RSIS), N.J.A.C. 5:21-1.1 to -7.9. The provisions of the Mt. Lebanon Township Master Plan defined Mt. Lebanon Road as a secondary collector road. Accordingly, the Ordinance required the road to meet a Class A road standard, which is twenty-six feet wide with a four to six-foot shoulder. He opined that the Township's Master Plan conflicted with the RSIS and that the RSIS controlled.

Dean also testified that the existing traffic patterns were "very light" and that "these are some of the lowest volume streets" he had encountered. He stated that Mt. Lebanon Road currently provides the best level of service, Level A, and would continue to do so after the proposed development was completed. Dean concluded that the proposed development did not warrant any improvements to Mt. Lebanon Road because the roadway width complied with the RSIS, and the pavement condition and the level of traffic activity "will continue to allow us to function safely and to carry the amount of traffic we are projecting."

Furthermore, Dean reported that "[a]ny roadway widening will require extensive tree removal, additional impervious area, and will contribute increased stormwater runoff. Furthermore, other unimproved roadway segments intersecting the potentially improved section of Mt. Lebanon Road have little chance for significant widening resulting from other private or public works projects." Dean counselled the Board that it would probably find a widened road out of character with the surroundings.

Harvey Yeskowitz, the Board's traffic consultant, contested the road measurements taken by Dean. He measured Mt. Lebanon Road at sixteen feet wide at some points. He concluded that the Board should either require Toll Bros. to employ reverse frontage or to improve Mt. Lebanon Road. He assured the Board that there was nothing in the RSIS to prevent it from imposing the reverse frontage option set forth in the Ordinance.

Yeskowtiz also concluded that, because traffic volumes are so low on Mt. Lebanon Road, the proposed development will necessarily create a greater impact than projected by Dean. He opined that Mt. Lebanon Road is a low density "minor applicator" with "access to the roadway directly from homes." Accordingly, the RSIS required a twenty-eight foot cartway, with two travel lanes, a parking lane, a sidewalk on one side of the road and a graded area on the other. Yeskowitz recommended that Mt. Lebanon Road be widened to something less than the full RSIS width for about 500 feet beyond plaintiff's property "to a point of a logical termination." He recommended the road be widened to twenty-two feet to "minimize the impact on trees and outcroppings and things of that nature." Yeskowitz did not recommend common driveways, or a marginal roadway. He advised the Board that if the homes did not have direct access to Mt. Lebanon Road, the RSIS required a twenty-foot cartway with no shoulders, with one graded area on one side and sidewalks on the other side.

At the December 18, 2001 meeting, Schlachter introduced an updated set of plans. Toll Bros. changed the configuration of the lots, eliminating one lot and reducing the total number of lots to thirty-eight. Toll Bros. also proposed the creation of cul-de-sacs in lieu of driveways for access to Mt. Lebanon Road. This plan reduced the number of access points onto Mt. Lebanon Road from twenty-one driveways to eight cul-de-sac stems. Because there would no longer be direct access from homes onto Mt. Lebanon Road, Toll Bros.'s plan showed a twenty-foot cartway, which satisfied the RSIS requirement. According to Schlachter, the new plans submitted by Toll Bros. met the RSIS and all of the Township's zoning regulations. Toll Bros. proposed that the cul-de-sacs would be municipal streets.

On that evening, the Board clearly advised Toll Bros. that it preferred common driveways because the driveways could have a gravel base instead of actual pavement. The Board also advised Toll Bros. that it was opposed to the original plan, that the Board would accept the twenty-two foot cartway plan recommended by Yeskowitz if Toll Bros. used the private common driveway plan, and that the Board desired to minimize disturbance to the hedgerows and trees along the road.

On February 19, 2002, Toll Bros. completed its presentation to the Board. The Board questioned Toll Bros.'s counsel as to whether Schlachter and Steven Risse, the Township Engineer, had met so that Toll Bros. could come back to the Board with a common driveway proposal. Toll Bros.'s counsel advised the Board that he had not sensed a desire for private common driveways and attempted to demonstrate the shortcomings of that plan. He emphasized that he believed the plan advanced by the applicant was consistent with State law.

Although the applicant agreed to bring a conceptual drawing of the common driveway plan to the next meeting so the Board could review it, Toll Bros. sent a letter dated February 15, 2002, to the Board wherein it speculated that the Mt. Lebanon Road issue was related to Toll Bros.'s obligation to provide off-tract improvements. Toll Bros. agreed to widen the cartway of the portion of Mt. Lebanon Road that fronted on the proposed development to twenty feet, and pay an additional amount for off-tract improvements. Alternatively, Toll Bros. agreed to widen Mt. Lebanon Road to twenty feet along its property and an additional five hundred feet, which would constitute its "entire road improvement obligation, both on-tract and off-tract."

On February 22, 2002, Toll Bros. transmitted to the Board an Overall Site Plan dated February 21, 2002, of a "Common Driveway Entrance Plan." This "Common Driveway Entrance Plan" was marked as an exhibit on March 5, 2002, after Toll Bros. finished presenting the cul-de-sac plan. Thereafter, on March 22, 2002, Toll Bros. transmitted a letter to the Board reiterating its position regarding roadway improvements. Toll Bros. incorporated its February 15, 2002 letter by reference and only agreed to widen the road to twenty feet. It expressed this concession as "an accommodation to the Planning Board" and reiterated its preference to construct the cul-de-sac plan. Toll Bros. stated that it would construct the common driveway plan if a condition made clear that it could construct the cul-de-sac plan without obtaining a RSIS waiver, or if there was a legal challenge to the Board's authority to approve the common driveway plan.

The Board's Planner, Michael Bolan, stated that it was "unclear" to him which set of plans the Board was being asked to approve. He also stated that under either plan, in order to widen Mt. Lebanon Road to twenty-two feet, Toll Bros. would need relief from the Department of Community Affairs (DCA) regarding the RSIS: either an agreement to exceed for the cul-de-sac plan or a waiver for the common driveway plan. Bolan was concerned about the consequences if DCA did not grant the requested relief.

B. Endangered Species

An environmental consultant, John P. Pagenkopf, addressed the on-site environmental concerns on behalf of the applicant. He testified that the presence of bog turtles and bog turtle habitat had "significance at the DEP level but does not have significance here because there are not zoning controls in effect that deal with threatened and endangered species." The Board responded that the Ordinance authorized the Board to request written reports that "include an assessment of the practical impact of the development" on the environmental inventory plan. Pagenkopf reiterated that disturbances to the wetlands and the wetlands transition areas fall under State permitting, that DEP would take into consideration the presence of threatened and endangered species and their habitat, and that DEP transition area buffers would protect the bog turtle and bog turtle habitat.

Following consultation with a bog turtle expert, Toll Bros. changed its stormwater management plan to a bio-retention system. This scheme is designed to mimic the existing drainage through the use of swales and bio-engineered collection points. The Board's bog turtle consultant, Amy S. Greene Environmental Consultants, Inc. (ASGECI), reviewed all aspects of the applicant's plans and determined that there were various aspects of Toll Bros.'s proposed development that "may not satisfy" the environmental impact plan requirement of the Ordinance. This expert recommended retention of another expert in the field of hydrology and waste water and stormwater management to determine the extent that the water quality and quantity would be affected by the proposed development. The Board's bog turtle expert further recommended that the aquifer consultant provide additional information regarding whether the proposed new residential wells would effect the water supply to the bog turtle habitat.

Toll Bros. presented the testimony of Laura Newgard, a certified bog turtle surveyor, who addressed the changes that were made to the plans to protect the bog turtle habitat. She confirmed that there was documented bog turtle habitat on the south side of Sharrer Road. She did not feel that the wetlands on the north side of Sharrer Road would support the bog turtle. She explained that plaintiff's original plan depicted a 150-foot buffer around the freshwater wetlands, which DEP requires for freshwater wetlands of exceptional resource value as defined by the New Jersey Freshwater Wetlands Protection Act., N.J.S.A. 13:9B-1 to -30 (FWPA). Exceptional resource value wetlands include freshwater wetlands that are critical habitat for threatened and endangered species. N.J.S.A. 13:9B-7(a) to (e).

She explained that the United States Fish and Wildlife Service (USFWS) adopted a Recovery Plan for the federally threatened bog turtle, which sets forth three different levels of buffers, or zones of conservation. Zone One includes the wetlands associated with the documented habitat. "Zone 2 is the 300-foot area that surround from the wetland up into the uplands." Newgard recommended a Zone 2 conservation zone around the bog turtle habitat on the south side of Sharrer Road and DEP's 150-foot buffer around the habitat on the north side of Sharrer Road.

Toll Bros. altered its plans to include a 300-foot zone of conservation on the south side of Sharrer Road and redesigned the development so that no lots would be within the 300-foot conservation zone. Newgard opined that DEP's maximum 150-foot wetlands buffer was sufficient for the habitat on the north side of Sharrer Road.

According to the Toll Bros. proposal, these conservation areas became open space lots. On the south side of Sharrer Road, a total of twenty-three acres, and on the north side of Sharrer Road, a total of eighteen acres, would be open space bog turtle habitat.

Newgard opined that it was necessary to avoid any alteration to the surface hydrology on the site, i.e., to avoid taking runoff that is currently flowing across the site and directing it elsewhere. Under Toll Bros.'s original plan, however, there were septic fields and a detention basin that directly discharged into a stream. Accordingly, Toll Bros. also submitted a supplemental stormwater management report that detailed changes to the stormwater management system in order to better protect the habitat. The report incorporated the DEP Best Management Practices (BMP), which require removal of eighty percent of the total suspended solids. According to the report, Toll Bros. would remove more than eighty percent.

The Board's environmental consultant, William Romaine of ASGECI, testified that because DEP BMP for the stormwater detention basin require that Toll Bros. treat only eighty percent of the total suspended solids, the other twenty percent could impact and degrade the bog turtle habitat. The septic systems could also negatively impact the habitat if a "flushing effect" occurred after a thaw or a heavy spring rain. Flushing of the septic systems results in a large amount of nitrate, which seeps into the ground water and causes undesirable plant life to invade the habitat.

Romaine expressed concern over potential lawn pesticides and fertilizers that future homeowners might use. He recommended that the Board hire a hydrologist to review Toll Bros.'s plans to determine whether the development, as planned, would result in significant detriment to the bog turtle habitat. He recommended that the Board require Toll Bros. to utilize a Zone 2 300-foot conservation area on the north side of Sharrer Road instead of 150 feet.

After substantial discussion on the bog turtle habitat, Toll Bros.'s counsel stated the following:

[t]his board cannot turn town [sic] lots based on the federal statute. That's not the way the law works. This board turns town [sic] lots based on its own zoning ordinance under the Pizzo Mantin case. It is of interest to us for both altruistic reasons and in order to make ourselves comfortable that we're not going to violate the federal law to look into this.

It's been raised, we're happy it's been raised. We changed our design to accommodate it. We've hired an expert, so have you. Let's be clear about how the system works. In our view, this board simply has no jurisdiction here. Doesn't mean you can't ask these questions. Doesn't mean you can't, within reason, explore this subject matter and ask us to do things. But in terms of turning down application, or taking away lots, we don't think it's within The Board's jurisdiction. It was maybe within the state DEP's jurisdiction when we have the detention outfalls because we need the statewide permits.

Risse stated that Toll Bros. had not addressed ASGECI's recommendation regarding the 300-foot buffer around the bog turtle habitat. He also stated that plaintiff never addressed any unavoidable environmental impacts, nor did Toll Bros. provide any suggestions for mitigating those impacts.

Bolan reminded the Board that ASGECI recommended either a 300-foot conservation buffer zone on the north side of Sharrer Road or a hydrology study to make sure that a 300-foot buffer would not be required. He questioned whether a conservation easement would be provided by Toll Bros. in accordance with Ordinance 17-8.5(b) to protect the stone rows and hedgerows on the site. Finally, he questioned whether the lots were suitable for their proposed use under 17-8.4(e) of the Ordinance.

C. Water Supply

Toll Bros. presented testimony from hydrogeologist Donald A. Smith. Smith opined that the basic principle of the aquifer test was to "simulate the worst case situation to see if there are adverse effects to the aquifer in the near vicinity of the well, and also adverse effects on the neighboring wells." He explained that "in this case there is a minimum pumping rate that is required, depending on the number of dwelling units, and [water] is required also to be pumped out in peak flow which is . . . double the average daily flow."

Smith stated that, because there was a groundwater divide underneath the proposed development, Toll Bros. was required to do an aquifer test on each side of the divide: the north aquifer test and the south aquifer test. Toll Bros. drilled three wells on the north side and two wells on the south side of the divide and used an on-site domestic well for observation. This procedure was reviewed and approved by Mulhall.

Smith stated that the Ordinance requires new wells to recover fully (100 percent) after pumping, in a specific amount of time. The south aquifer test passed, but the north aquifer test did not. The north well only recovered eighty percent within the same period of time that pumping had occurred. Smith opined that the north well "exceeded the long-term yield of the aquifer in this area." In fact, three days after testing, there was still a six-foot difference from pre-pumping levels in the north well. Because the north aquifer test failed, the Ordinance required Toll Bros. to demonstrate that it would not mine groundwater from this area.

In support of Toll Bros.'s contention that the water supply was adequate, Smith explained that the aquifer test assumes that all groundwater is from storage. He continued that, in reality, there is recharge into the aquifer from the septic leech field system, which was projected to reinject 240 gallons of water per day, per lot, into the ground. He also proposed a stormwater management "roof leader system," which he projected would provide 1.35 million gallons of water for the entire area, or 105 gallons of water per day on each lot.

Smith testified that he used the New Jersey Geologic Survey GSR32 to calculate total subsurface recharge due to precipitation. Smith then applied a statewide water supply plan with a twenty-percent planning threshold. Based on the published standard, each proposed home would have an average daily water use rate of 300 gallons per day. Accordingly, the average daily demand for the proposed development would be 11,700 gallons per day and average yearly demand would be 4,270,000 gallons of water.

Smith opined that the total reusable recharge due to precipitation was estimated to be twenty-four million gallons per year. Additionally, 680,000 gallons per year would be recharged from the on-site septic systems and 300,000 gallons per year additional recharge would come from the roof leader system into the dry wells. He concluded that the total yearly usable recharge would be 125 million gallons of water and asserted that even in a dry year, that number would be the same because the GSR32 program takes into account dry years.

Smith concluded that that there was an adequate supply of water for the proposed development. He stated

[t]he aquifer test data demonstrates sufficient ground water supply exists to supply the ground water via wells at rates that meet the average daily demand for this particular development. The data indicates there should not be any significant impacts either to the local aquifer or the neighboring well supplies. The calculations for available, usable recharge is more than adequate to sustain the water demands of the

proposed development and it is based on my professional opinion that the safety of the bedrock aquifer won't be exceeded.

Nevertheless, he suggested that the "wells should be spread across the site as much as possible" and that Toll Bros. should alert buyers that some lots should not have sprinkler systems or a swimming pool.

Mulhall also testified on behalf of the Board. He confirmed that Toll Bros. tested the aquifer in accordance with the Ordinance and followed its procedures. He testified that "[i]t was an adequate stress test conducted." He concluded that, because the north test failed, Toll Bros. failed the aquifer test.

Mulhall confirmed that Toll Bros. would be unable to build a residence on the lot if the lot could not support a well. He assured the Chairman that "[i]f there is no available water supply, the building permit is never issued and therefore the lot can't be constructed. So therefore, it is putting them at risk."

After Toll Bros. performed additional aquifer tests, it presented the testimony of hydrogeologist Robert L. Zelley to address the northern portion of the tract and whether the proposed development would cause the mining of water. The supplement inquiry "tested a well that was off strike with the theory that if it is off strike you would have very little . . . aquifer interference."

Zelley pumped the well for twenty-four hours in excess of the demand that was required by the Ordinance. He recorded water drawdown in the test well, but not in the observation wells. In his opinion, the recovery was satisfactory based on hydrogeological standards. He concluded that the wells on the proposed development should be staggered and off strike and that the proposed development would not cause the mining of groundwater provided plaintiff tested each well when it was drilled. Zelley concluded that the aquifer was poor.

Risse questioned whether the supplemental test was performed in accordance with the standards set forth in the Ordinance because Zelley did not review an observation well within 200-feet of the test well "along the preferential fracture direction, between one and 200 feet." Zelley explained that type of observation was completed during the initial aquifer test and that, in the supplemental test, he looked for additional data focused on recovery. Since the only outstanding issue was whether Toll Bros.'s proposed development was going to mine groundwater, additional data was presented regarding that issue. Mulhall confirmed that the supplemental test did not require the same controls as the original aquifer test.

Zelley testified that if a well failed to pump five gallons a minute, a two-part pump testing would be used to insure the lot could support a well and would not mine the groundwater. Mulhall reviewed Zelley's report and recommended that within the northern portion of the proposed development, wells should have a minimum spacing of 400 feet. Wells on adjacent properties should not be located along strike. He also recommended that wells should not be installed downgradient of septic systems. He said that "[t]he yield and the recovery rate of all new wells should be tested to ensure the local conditions . . . do not limit water supplies to the proposed homes." He agreed with Zelley that if a well had a potential yield or recovery rate of less than five gallons per minute, the two-part pump test must be used. He further testified that he did not believe the problem of groundwater mining was widespread. In other words, some, but not all, proposed lots in the northern section of the tract would have adequate water supply.

Mulhall also provided the Board with a number of recommendations to limit the development's projected impact on the aquifer. He recommended that the properties be deed-restricted against "in-ground irrigation systems and/or filling of swimming pools" because those uses might not be supportable on those lots. He recommended that, for certain low yielding wells, equipment should be placed in the well to prevent the homeowner from overpumping it.

Members of the public commented on Toll Bros.'s application, many of whom lived in the vicinity of the proposed development and who were mainly concerned about the impact of the new development on their water supply. Residents repeatedly questioned whether their wells would go dry as a result of thirty-eight new homes. Residents also feared damage or flooding from the additional runoff and drainage from the proposed development.

D. Stormwater Management Plan

Toll Bros. originally filed its "Stormwater Management and Soil Erosion & Sediment Control Report" on March 30, 2001. This plan fully complied with the RSIS as of November 1, 1999.

On December 17, 2001, Toll Bros. filed a supplemental stormwater management report, which depicted the replacement of two stormwater detention basins with a system of bio-retention swales and ponds. The new plan created a natural drainage system, which USFWS and DEP both preferred. The Board's environmental consultant also agreed that the new plan was a significant improvement over the original stormwater management plan.

Risse stated that he had "not seen anything that shows a prediction of what kind of surface water quality" would be reached on the site. He said that the "drainage system was vague" and that it had slowly evolved from a typical drainage system into a bio-retention system. Risse testified that, based on his review of the calculations in the supplemental stormwater management report, three bio-retention basins would overflow in 100-year flood events. He also stated that Toll Bros. did not provide velocity calculations for the swales or recharge data. He confirmed that drainage calculations were provided, but they showed that the stormwater management system "doesn't flow at certain times of the year."

Furthermore, Risse said Toll Bros. had not provided sufficient information to show how the drainage swales would handle runoff in either the cul-de-sac plan or the common driveway plan. It was also unclear to him who would be responsible for maintaining the bio-retention basins. Because the drainage system integrated the stone rows and hedgerows, Risse stated that they should be included in a conservation easement.

He speculated that the bio-retention system would not work if the USFWS or the DEP expanded the buffers. Risse stated that the stormwater management plan would require significant revisions if "you take into account the location of it in conjunction with buffers." However, if the buffers were not expanded, Risse opined that the bio-retention system "may need some minor modifications so it would function in the place they have it now." In response to the Board inquiry as to whether it could grant preliminary subdivision approval subject to the condition that Toll Bros. submit revised plans, Risse stated that the plans would require "more detail" in order "to show if it would work or show it would not work and that is the question."

E. Board Action

In a ninety-five paragraph resolution, the Board denied Toll Bros.'s application for preliminary major subdivision approval. In paragraph 94, the Board summarized its various findings and concluded that there were major elements of the application that remained unresolved. The resolution states as follows:

Based on the application that has been presented to the Board, the Exhibits and testimony, there are major elements of the application which have not been resolved or sufficiently addressed, which substantively affect the basic design and layout of the application, and raise serious concerns regarding the suitability of some of the proposed lots. The Board feels that significant issues that have a substantial impact on the application as proposed, such as road layout, drainage, endangered species habitat, aquifer suitability, maintenance of open space areas, and bio retention basins and swales have not been resolved.

The Board furthermore concluded that the magnitude of the unresolved issues made it inappropriate to grant a conditional approval.

According to the Board, the principal issues that remained unresolved included access to Mt. Lebanon Road, the nature and scope of improvements to Mt. Lebanon Road, sufficiency of the water supply and location of potable water wells and septic fields, buffers to protect wetlands and an endangered species, the stormwater management plan impact on wetlands and endangered species habitat, and conservation easements to protect hedgerows and stone rows. The Board specifically found that the aquifer test failed in the northern portion of the site. The Board also accepted the opinion of an environmental expert that the endangered species habitat required a 300-foot buffer. The Board also rejected the applicant's plan for access to Mt. Lebanon Road that consisted of cul-de-sacs. It insisted that the applicant apply to the DCA to allow a common driveway plan.

The Board also concluded that Toll Bros. failed to present enough information on the proposed drainage scheme for the Board to assess the design. Specifically, Toll Bros. failed to quantify how much water would be going into the ground from the enhanced swales, failed to explain how the bio-retention basin would be maintained, and failed to provide any testimony on how the outfall would affect the bog turtle habitat.

Toll Bros. filed a complaint in lieu of prerogative writs in which it alleged that it had complied with all reasonable requests and recommendations of the Board; that its application fully complied with the Ordinance; and that the Board's action was arbitrary, capricious and contrary to the Ordinance, the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and the state and federal constitutions. In his oral opinion, the trial judge held that a planning board is not required "to grant conditional approval when major aspects of the site plan hang in the balance." He further held that the roadway configuration is not a minor element of a subdivision plan. He noted that "substantial changes in the roadway configuration would certainly impact such features as stormwater management, plot lines and potable water and sewage treatment plan."

The judge then addressed the amenability of a conditional approval subject to receipt of permits or approvals or interpretations from relevant State or federal agencies. He held that the Board did not abuse its discretion by denying a conditional approval because

DEP and US Fish & Wildlife agency approval has the potential to impact the lot configuration because the additional 150-foot buffers may well be imposed -- additional buffers may well be imposed north of Sharrer Road. This would eliminate certain lots all together. The roadway configuration would certainly be impacted. In addition, storm water management and sewer treatment plans would have to be altered.

The judge also held that if the Board exceeded its jurisdiction on certain environmental issues, the error was harmless because conditional approval was not warranted.

The judge also found that the applicant did not submit an adequate stormwater management plan that would allow approval or conditional approval. He related that the applicant had essentially advised the Board that a fully documented stormwater management plan would be submitted upon receipt of preliminary approval. The judge observed, however, that "[t]his is not how the [MLUL] is designed to operate." The failure to submit all of the information prescribed by the Board justified the denial. He also noted that the final proposal submitted to the Board contained a common driveway scheme without corresponding adjustments in the stormwater management plan. The judge also found that the applicant failed to address concerns raised by the Township Planner about the bio-retention-stormwater management plan.

As to the need for conservation easements to protect hedgerows and stone rows, the judge found that the need for the easements was discussed but the terms of the easements were never developed. Thus, the easements were never subject to public comment. In addition, he held that the easements were not an appropriate subject of a condition of approval because the easements may affect lot lines.

Finally, the judge addressed the adequacy of the water supply and the siting of wells. He found that the Board's hydrologist opined that the tests were conducted in accordance with the standards established by the ordinance, but the judge also found that the same hydrologist opined that there was a threat of dewatering in the northwest aquifer. Therefore, the expert recommended a siting plan for the wells and septic fields. Furthermore, the judge observed that additional testing suggested that certain restrictions might be required to prevent mining of the aquifer. Those restrictions included a ban on the installation of watering or irrigations systems or the use of well water to fill pools. Accordingly, well plotting became a major issue because it could affect lot lines and lot configuration. Thus, the judge concluded that an approval conditioned on further action by a state agency was not appropriate in this instance.

The judge also rejected the applicant's contention that it was denied due process due to the inability to cross-examine witnesses or to respond to additional testimony. He held that the Township Planner and Engineer "touched on major issues" but that the issues had been subject to extensive reports and review letters submitted to the applicant. He also found that the applicant had the opportunity during twelve hearings to address each of the issues presented by these professionals.

Finally, the judge addressed the applicant's contention that it was entitled not only to a remand for the issuance of an approval with appropriate conditions, but also that it was not subject to the newly enacted zoning that governed the tract at the time of argument of its appeal. Judge Bernhard held that Toll Bros. had no vested rights in the former zoning and that none of the other exceptions to the time-of-decision rule applied to this case. An appropriate order was entered and this appeal follows.

Toll Bros. contends that the Board erred in denying subdivision approval for a conforming application. It argues that the Board either exercised jurisdiction over endangered species habitat or wrongfully denied a conditional approval subject to actions by DCA, DEP and USFWS. Toll Bros. also contends that the Board erred in denying it the opportunity to cross-examine witnesses and present rebuttal testimony. The Board responds that its decision is well-supported by the record, that it was not required to grant conditional approval and that it properly refused to allow the submission of new evidence. Resolution of the appeal involves consideration of the interaction between the zoning and planning concerns of the local board and the jurisdiction over certain areas reposed in state and federal agencies.

A planning board is governed by the standards set forth in the municipality's land use ordinances, and therefore must approve applications that comply with those ordinances. Pizzo Mantin Group, supra, 137 N.J. at 229. However, due to their knowledge of local conditions, planning boards must be allowed wide latitude in the exercise of their delegated discretion. Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 560-61 (App. Div. 2004); Pullen v. Twp. of S. Plainfield Planning Bd., 291 N.J. Super. 1, 7 (App. Div. 1996). See also Lang v. Zoning Bd. of Adj. of N. Caldwell, 160 N.J. 41, 58 (1999).

"Courts ordinarily should not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang, supra, 160 N.J. at 58-59. A planning board's decision is presumed to be valid, and the party attacking a decision has the burden to prove otherwise. Cell South of N.J. v. Zoning Bd. of Adj. of W. Windsor, 172 N.J. 75, 81 (2002).

The decision of the board is entitled to deference unless it was "arbitrary, capricious or unreasonable." Britwood Urban Renewal, L.L.C. v. City of Asbury Park, 376 N.J. Super. 552, 569 (App. Div. 2005). A court will not disturb the decision of a board unless it finds "a clear abuse of discretion." Cell South, supra, 172 N.J. at 82. The standard of review is the same for both the Law Division and this court. Bressman v. Gash, 131 N.J. 517, 529 (1993).

The MLUL provides that the municipal ordinance governing subdivision approval must ensure that its provisions are consistent with other provisions of the MLUL, establish standards for approval and review and contain provisions to ensure that the subdivision is consistent with the zoning plan (N.J.S.A. 40:55D-38b(1)); that the streets are located and have sufficient width and grade to accommodate prospective traffic and to provide emergency access (N.J.S.A. 40:55D-38b(2)); that there is adequate water supply, drainage, sewer and other utilities (N.J.S.A. 40:55D-38b(3)); that open space is reserved (N.J.S.A. 40:55D-38b(5)); that the development conforms with State, county or municipal highway, road and street access codes (N.J.S.A. 40:55D-38b(10), (11), and (12)); that potable water supply reservoirs are protected from pollution or other degradation traceable to development (N.J.S.A. 40:55D-38b(13)); and that stormwater management and detention facilities conform with appropriate regulations (N.J.S.A. 40:55D-38b(14)). The MLUL also mandates that if a proposed subdivision complies with the local subdivision ordinance and the MLUL, the planning board "shall" grant preliminary approval. N.J.S.A. 40:55D-48b. On the other hand, the grant of conditional preliminary subdivision approval is discretionary. N.J.S.A. 40:55D-22b. The statute provides as follows:

In the event that development proposed by an application for development requires an approval by a governmental agency other than the municipal agency, the municipal agency shall, in appropriate instances, condition its approval upon the subsequent approval of such governmental agency.

[N.J.S.A. 40:55D-22b.]

At the preliminary approval stage, it is incumbent upon the planning board to "pass upon basic matters of the highest significance to future community growth and well-being and the welfare of individuals who will ultimately become owners and occupants in the subdivision." Levin v. Twp. of Livingston, 35 N.J. 500, 510 (1961). Justice Hall explained

For instance, it is of essential importance to determine whether the whole tract proposed to be subdivided is fundamentally suitable for the projected development from the standpoint of area, topography, drainage, soil characteristics, accessibility, availability of utilities and the like, or, if not, in whole or in part, whether and to what extent special conditions can be imposed to make it so. Cf. Kotlarich v. Ramsey, [ 51 N.J. Super. 520, 531-32 (App. Div. 1958)]. It must also decide upon the best layout of lots and streets and whether it conforms to the ordinance design and to the master plan and official map (if the municipality has adopted such). It must consider the impact upon adjacent areas and the effect of other pertinent ordinances of the municipality. Special drainage and sanitary sewage disposal problems may require particular remedies to temporarily reserve portions of the tract for schools, parks and playgrounds. In short, at inception the board has the very great responsibility of doing everything possible to avoid future problems of vital importance to the community and subsequent individual property owners.

[Id. at 510-11.]

A board is in no position to evaluate a subdivision plan that has too many uncertainties. Field v. Mayor and Council of Franklin, 190 N.J. Super. 326, 332 (App. Div.), certif. denied, 95 N.J. 183 (1983). "It is evident that a municipality cannot guide the use and development of lands in this State if fundamental elements of a development plan are left unresolved before preliminary approval, leaving them instead for an unspecified later day." Ibid. "If the applicant fails to provide sufficient information on the fundamental elements of his plan, preliminary approval should be denied." Id. at 333.

In Field, this court upheld the denial of a large planned unit development because the applicant failed to provide sufficient information regarding the feasibility of three possible sewage disposal options. Ibid. In Morris County Fair Housing Council v. Boonton Township, 228 N.J. Super. 635, 640 (Law Div. 1988), the planning board denied an application for preliminary site plan approval for a project containing affordable housing because the applicant's stormwater management plan depended upon DEP approval of the repair or reconstruction of a dam. The board concluded that it could not assess the sufficiency of the stormwater management plan until plans regarding the dam had been finalized and approved by DEP. Ibid. The court rejected the developer's reliance on N.J.S.A. 40:55D-22b, holding that the board "did not abuse its discretion in concluding that this was not an "appropriate instance'" for conditional approval because of the uncertainty regarding the dam. Id. at 646.

On the other hand, in W.L. Goodfellows & Co. of Turnersville, Inc. v. Washington Township Planning Board, 345 N.J. Super. 109, 113 (App. Div. 2001), this court held that the board arbitrarily refused to grant preliminary approval on the condition that the developer secure a drainage easement. Both Field and Morris County were distinguishable because the developer had presented sufficient information concerning the specificity, feasibility and adequacy of the drainage plan. Id. at 116-17. This court relied in part on the testimony of the board's engineer that the drainage plan was both permissible and adequate. Id. at 117.

Ultimately, however, "when the application conforms in all respects with applicable ordinances, the Board may cajole or use its powers of persuasion in its dealings with the developer so as to achieve the best development from a planning perspective, but it may not deny the application." DeMaria v. JEB Brook, LLC, 372 N.J. Super. 138, 147 (Law Div. 2003).

Measured by these principles and our review of the record, we are satisfied that in certain instances the Board exceeded its authority and should have deferred to the expertise of other agencies. Moreover, the Board concedes that the disposition of the ruins located on the tract "could have been made a condition of approval." We are satisfied from our review of the record that the issues of open space easements and management as well as stone row and hedgerow presentation and management were well-suited to the imposition of appropriate conditions. In other instances, however, we are satisfied that the Board acted well within its discretion to withhold conditional approval of this development. Therefore, we affirm.

A. The Cartway and Access Plan

By February 2002, the Board consensus was that the cartway for Mt. Lebanon Road should be twenty-two feet and that Toll Bros., with the support of the Board, would apply for a RSIS waiver. If granted, access to Mt. Lebanon Road would be through common driveways. Contrary to the Toll Bros. position articulated at the time and on appeal, it is clear that the Board favored the common driveway plan and that Toll Bros. favored the short cul-de-sac plan. Notwithstanding the Board's view, Toll Bros. sought conditional preliminary subdivision approval premised on a twenty-foot cartway and receipt of a waiver of the RSIS cartway standard. As stated to the Board in its March 22, 2002 letter, Toll Bros advised the Board that

[it] would cooperate in seeking to pursue the aforesaid common driveway plan as an accommodation to the Planning Board. It is Toll's preference to proceed with the plan generally outlined in Exhibit A 19, which utilizes the short cul-de-sacs. Toll would accept a condition of approval as outlined above only if that condition made it clear that, in the event the RSIS waivers could not be achieved and/or in the event that there was any legal challenge to the Board's right to approve the common driveway plan, Toll Brothers would have the right to construct the project using the cul-de-sac plan shown on Exhibit A 19.

Interestingly, contrary to the operating assumptions of the Board and the applicant, a waiver from DEP of the RSIS cartway width standard was not required.

The legislature enacted the RSIS Act (the Act), N.J.S.A. 40:55D-40.1 to -40.7, in 1993 to create uniform site improvement standards for residential developments and to end the proliferation of individualized standards. N.J. League of Municipalities v. Dep't of Cmty. Affairs, 310 N.J. Super. 224, 228-29 (App. Div. 1998), aff'd, 158 N.J. 211 (1999). The standards adopted pursuant to the Act supersede any site improvement standards in municipal ordinances. N.J.S.A. 40:55D-40.5. Implementing regulations were adopted in 1997.

The RSIS were adopted "[t]o reduce the multiplicity of standards for residential subdivisions and site improvements which currently exists" in New Jersey and "to ensure predictability" of the standards that apply to residential construction. N.J.A.C. 5:21-1.3(a)1 and (a)3. The RSIS are the minimum necessary for public health and safety and also "the maximum that may be required in connection with residential development." N.J.A.C. 5:21-1.5(b).

The Township Ordinance required a cartway of twenty-six feet for Mt. Lebanon Road. The applicable RSIS standard, whether Mt. Lebanon Road is classified as a minor collector or a special purpose street, such as a rural street, requires a cartway of twenty feet. N.J.A.C. 5:21-4.1 to -4.2. A minor collector street, characterized as low density with no parking, would require a sidewalk on one side and a graded area on the other side of the cartway. N.J.A.C. 5:21-4.5. The Board could achieve a twenty-two foot cartway if Toll Bros. and the Board agreed to exceed the standard because "exceeding of a standard is desirable under the specific circumstances of a proposed residential development." N.J.A.C. 5:21-3.6(a). See DeMaria, supra, 372 N.J. Super. at 147. In such cases, the developer must forward the agreement to DCA for review for "consistency with the intent and purpose of the Act and these rules." N.J.A.C. 5:21-3.6(c) and (d). It does not appear that DCA has the authority to disallow the agreement.

On the other hand, if Mt. Lebanon Road was considered a residential access (low intensity) street, a twenty-eight foot cartway was required. N.J.A.C. 5:21-4.2. The Board could reduce the cartway to twenty-two feet through a de minimis exception. N.J.A.C. 5:21-3.1(f)3. Review and authorization by DCA or the Site Improvement Advisory Board was not required.

At the conclusion of the hearings, it is not altogether apparent whether Toll Bros. and the Board had reached an agreement on the cartway width. It is clear, however, that the twenty-two foot cartway width preferred by the Board did not require a waiver from RSIS because the Board possessed the authority to grant a de minimis exception to the RSIS standard. The condition offered by Toll Bros., i.e., that it should obtain the cul-de-sac access plan in the event of the denial of a waiver, appears to have been founded on a mutual misapprehension of the absence of authority of the Board to grant a de minimis exception for cartway width. The uncertainty injected into this aspect of the development plan about whether the houses would be accessed by common driveways or cul-de-sacs was without legal basis. The Board had the authority to grant the de minimis exception for the twenty-two foot cartway with the common driveways and obtain the access plan preferred by the Board.

On the other hand, there clearly was no consensus between the Board and the applicant about the access plan, common driveways or cul-de-sacs, or Mt. Lebanon Road cartway width. The Township Engineer's observation that he was not sure what road plan was before the Board was well-founded. Although this was the type of issue that could have been fully resolved before the Board, at the time of the decision, there was no clear-cut broad plan before the Board.

B. Bog Turtle Habitat Buffers

In denying preliminary subdivision approval, the Board accepted the opinion of its endangered species expert that a 300-foot buffer was required to protect its habitat. Toll Bros. argues that DEP and the USFWS have exclusive jurisdiction to regulate endangered species habitat and that the buffer imposed by the Board is inconsistent with and exceeds that buffer required by the relevant agencies. We agree.

If an applicant proposes to perform a regulated activity that may impact a federally listed threatened or endangered species, under either an individual permit or one of the authorized general permits, or if the activity is proposed in a municipality that has documented occurrences of federally threatened or endangered species or critical habitat as defined by the Federal Endangered Species Act, DEP, or pursuant to the Freshwater Wetlands Protection Act, N.J.S.A. 13:98-1 to -30, an application to the USFWS to review the permit application must be submitted. N.J.A.C. 7:7A-12.2(k). Pursuant to a Letter of Interpretation dated October 2, 2001, DEP determined that the wetlands on the north side of Sharrer Road are wetlands of exceptional resource value and require a 150-foot transition area.

Toll Bros. acknowledged that it was required to apply to DEP for a permit to conduct a regulated activity in the transition area because a portion of a proposed drainage swale is within the transition area. DEP is required by its own rules to submit applications to USFWS if the application proposes development that may impact federally threatened or endangered species or critical habitat. N.J.A.C. 7:7-12.2. Here, DEP made the appropriate referral and ultimately determined that a 150-foot buffer on the north side of Sharrer Road was sufficient.

The Township Ordinance governing conditional approvals mirrors N.J.S.A. 40:55D-22, which governs conditional approvals except in one instance. Thus, the Board is required to issue a conditional approval upon the subsequent approval of another government agency in appropriate instances. A subsection of the municipal ordinance, however, provides that a conditional approval may be granted for matters "of a minor nature," except as required by the other two subsections of its ordinance. Here, the Board denied a conditional approval because the extent of the buffer was not considered a minor matter. Although protection of wetlands and endangered species is not a minor matter, here the issue of protection of endangered species habitat was committed to another agency. The FWPA specifically preempts all municipal regulation of wetlands. N.J.S.A. 13:9B-30. In this instance, the Board erred by first imposing its standard on an issue within the exclusive jurisdiction of DEP and the USFWS and second by not issuing the approval conditioned on receipt of the approval of the other governmental agencies.

C. Water Supply

The Board denied preliminary subdivision approval in part due to concerns about the adequacy of the water supply and the expressed desire to have the sites of individuals wells and septic fields delineated at the time of approval. Toll Bros. argues that the siting of the wells and septic fields is a matter vested in the jurisdiction of the County Board of Health. As to the adequacy of the water supply, Toll Bros. contends that the Board's findings about the inadequacy of the water supply are not supported by the record. As to the latter contention, we disagree. There was sufficient evidence in the record from which the Board could find that the aquifer could not service the development as proposed, that there was a risk of mining that would affect neighboring homes, and that water restrictions were not the appropriate response to this potential problem.

As required by the Ordinance, test wells and observation wells were drilled and appropriate observations were made. It was undisputed that the test conducted by the Toll Bros. hydrologist was conducted in accordance with accepted criteria. It is also undisputed that, according to the standards established by the Ordinance, the aquifer test failed. Subsequent testing was recommended and conducted. At the conclusion of the second round of testing, various measures were suggested to assure adequate supply to the new homeowners and to minimize the risk of mining. The Board's hydrologist and the Toll Bros. hydrologist both recognized that there was the potential that building permits might not be issued to every lot due to inadequate water supply. Each also suggested some restrictions on water use, such as the prohibition of irrigation systems and a ban on filling swimming pools with well water. Both also considered the aquifer of poor quality. There also seemed to be a consensus that the wells for individual lots should be drilled at 400-foot intervals and off-strike.

If the only issue was the site of individual wells and septic fields, we would agree with Toll Bros. because the siting of wells and septic fields falls within the jurisdiction of an agency other than the planning board. However, that is not the only issue. The threshold issue was the adequacy of the water supply not only for the proposed homes, but for existing homes that draw water from the same aquifer. The MLUL expressly requires a planning board to ensure adequate water supply. N.J.S.A. 40:55D-38b(3). The record contained sufficient information from which the Board could determine that the tract was not suitable for the proposed development due to limitations on the water supply. Based on the record before the Board, we cannot conclude that it acted arbitrarily, unreasonably or capriciously when it found that the evidence raised "serious questions as to whether or not the number of lots proposed could be supported, or whether certain lots may be able to obtain wells and building permits."

D. Stormwater Management

The Board supported denial of preliminary subdivision approval on the failure of Toll Bros. to provide sufficient information on its stormwater management plans. Toll Bros. had changed its stormwater management plan for the site from a traditional pipes and detention basin plan to a bio-retention plan with swales and basins because the traditional plan would allow direct discharge into wetlands and endangered species habitat. Toll Bros. contends that the supplemental plan met RSIS and that the Board's request for further information was not relevant to whether the stormwater management plan was appropriate for the site.

RSIS applies to "[a]ll stormwater collection and conveyance structures," which "shall be designed in accordance with the provisions of this subchapter. Any structures designed to control stormwater runoff volume, flow rate, quality, or groundwater recharge shall be designed and constructed in accordance with these provisions." N.J.A.C. 5:21-7.1(g). The administration of RSIS rests with the planning and zoning board. N.J.A.C. 5:21-1.7(a) provides:

[w]henever a municipality has enacted an Ordinance which requires subdivision and/or site plan approval pursuant to N.J.S.A. 40:55D-37, then the planning board of such municipality shall ensure that the plans and plats for any residential development subject to review under such ordinance comply with the requirements of these rules before issuing a preliminary or final approval.

The Township Engineer advised the Board that he was unable to determine whether the bio-retention stormwater management plan satisfied RSIS because he had not been provided with sufficient information to evaluate the plan.

The applicant must do more than assert that its stormwater management plan was designed in conformity with RSIS. The township engineer has the obligation to review the submitted plans to determine whether that assertion is accurate. Here, the stormwater management plan was changed when concerns arose about the effect of stormwater on wetlands and endangered species habitat. The engineer sought information about the quality of the water at discharge. He sought velocity calculations to demonstrate stability of the swales and information about soils to evaluate the rate of water that will infiltrate into the ground. He also questioned whether the detention basins met requisite standards. We do not interpret the engineer's request for information on these subjects as anything more than seeking assurance that the plan does what it is supposed to do. Due to the inability of the engineer to fully investigate the conformity of the design to RSIS, the Board did not err when it denied preliminary subdivision approval.

E. Other issues

Finally, Toll Bros. argues that the Board erred and denied it due process when the Board refused to permit it to cross-examine the Board's professionals who testified to alleged inadequacies in its application. We disagree.

N.J.S.A. 40:55D-10 permits cross-examination of witnesses subject to the discretion of the Board. Judge Bernhard noted that the application was the subject of twelve public hearings. Toll Bros. had a full opportunity to address every issue, and it was offered the opportunity to reply to the concerns expressed by the professionals during its summation. We agree.

In conclusion, we readily acknowledge that the Board exceeded its jurisdiction and should have deferred to the jurisdiction of DEP and USFWS on issues concerning protection of wetlands, endangered species and endangered species habitat. The issues concerning ownership and maintenance of stormwater facilities and preservation and conservation of open spaces, ruins, hedgerows and stone rows also were susceptible to appropriate conditions. The cartway width and access plan were within the jurisdiction of the Board to resolve, but there did not appear to be a consensus about which plan was submitted for approval. On the other hand, the record supports the Board's concerns regarding the adequacy of the water supply and stormwater management plans. Therefore, we affirm the September 1, 2004 order sustaining the denial of preliminary subdivision approval and dismissing the complaint.

Affirmed.

 

Initially, the developer proposed a forty-two lot subdivision. The first amendment reduced the yield to thirty-nine lots; the final proposed subdivision allowed thirty-eight lots.

Reverse frontage requires the front of the house to face away from the road and prevents direct access to a street, such as Mt. Lebanon Road, from each house.

Pizzo Mantin Group v. Twp. of Randolph, 137 N.J. 216 (1994).

We may take judicial notice of the USFWS determination. See Mount Olive Complex v. Twp. of Mount Olive, 340 N.J. Super. 511, 527 (App. Div. 2001), certif. granted, 174 N.J. 359 (2002), aff'd on remand, 356 N.J. Super. 500 (App. Div. 2003), certif. denied, 176 N.J. 73 (2003).

(continued)

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A-0116-04T2

August 16, 2006