ARTHUR & CATHERINE BUBEN, h/w et al. v. PLANNING BOARD OF SEA ISLE CITY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5715-04T25715-04T2

ARTHUR & CATHERINE BUBEN, h/w

and MARGARET RODDEN,

Plaintiffs-Appellants,

v.

PLANNING BOARD OF SEA ISLE CITY,

and JOSEPH G. FREDA,

Defendants-Respondents.

_________________________________

 

Argued: March 14, 2006 - Decided July 26, 2006

Before Judges Skillman, Axelrad and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-3563-04.

Mary D'Arcy Bittner and Carol Rogers Cobb argued the cause for appellants (Mary D'Arcy Bittner, attorney for appellants Arthur and Catherine Buben; Giansante & Cobb, attorneys for appellant Margaret Rodden; Ms. Bittner and Ms. Cobb, on the joint brief).

James B. Arsenault, Jr., argued the cause for respondent Planning Board of the City of Sea Isle (Cooper, Levenson, April, Niedelman & Wagenheim, attorneys; Mr. Arsenault, on the brief).

Clement F. Lisitski argued the cause for respondent Joseph G. Freda.

PER CURIAM

Objectors, Arthur and Catherine Buben and Margaret Rodden, appeal from the order of the Law Division affirming the Sea Isle City Planning Board's preliminary approval of a three-lot subdivision of property owned by defendant Joseph Freda and grant of design waivers. Appellants' properties are near or adjacent to the subject parcel.

Appellants argue the Board failed to follow the proper procedures in granting the applicant exceptions and waivers from the Department of Community Affairs (DCA's) New Jersey Residential Site Improvement Standards (RSIS), N.J.A.C. 5:21-1.1 -8.1, to exceed the cartway width of the 67th Street extension and to eliminate a bulbous-shaped cul-de-sac at the end of the roadway. Appellants also contend the effect of the Board's approval of the plan as submitted was to allow the waiver of sidewalks on the easterly side of the street, without the applicant requesting such waiver or the Board addressing the fact that a waiver was needed and performing the appropriate analysis under the RSIS.

Apart from these procedural arguments, appellants further contend the Board did not have the authority to grant the exceptions and waivers and the record did not support such action. Additionally, appellants challenge the Board's failure to address and apply the newly promulgated New Jersey Department of Environmental Protection's (DEP's) stormwater management regulations, N.J.A.C. 7:8-1.1 to -6.3, and make compliance an express condition of approval. We affirm in part, modify in part and remand in part.

The subject parcel, known as Block 59.04, Lot 1.26 in Sea Isle City, is l2.5 acres and is located at the westerly terminus of 67th Street and ends at the intercoastal waterway. The buildable portion of the site is located in the R-2 (Two-Family Residential District) zone. The applicant did not seek to develop the property himself; rather, he planned to place the parcel in trust for each of his three children. In order to provide access to the proposed three lots, the applicant also sought to extend 67th Street, an existing dead-end street that runs east to west, from its present terminus, in a westerly direction and then northward. The preliminary plat plans depicted a northerly extension fifty feet wide, with a thirty-foot wide pavement, with a proposed sidewalk along the westerly side of the street from where any new houses would be accessible. No sidewalk was proposed on the easterly portion of the street behind the existing houses. The proposed street also dead-ends rather than terminates in a cul-de-sac.

Freda therefore filed an application with the Board seeking preliminary approval of a major subdivision into three conforming lots. There was no development application and the subdivision complied with all bulk requirements of the ordinance and did not require any variances. In connection with his application, he also sought de minimis exceptions and/or waivers to the RSIS to exceed the permitted cartway width requirements of the 67th Street extension and to dispense with the requirement of a bulbous cul-de-sac at the end of the roadway.

The applicant's engineer Paul Dietrich testified before the Board on March l5, 2004 that the applicant would provide access to the proposed three lots by extending the existing 67th Street into the subdivision and, for the most part, would match the dimensions of the existing street. It appears the applicant was proposing to extend 67th Street about fifty feet westerly and then another sixty-five feet to the north. The record is somewhat confusing with respect to the current dimensions of 67th Street as they compare to what was proposed by the applicant because of the differing and often inconsistent terminology used by the Board's Engineer, applicant's engineers, and the various counsel in the proceedings before the Board, trial court and briefs on appeal. Based on our review of the record and plan, and responses to questions at oral argument, it appears the existing 67th Street has a right-of-way that is seventy feet wide and a paved cartway that is forty feet wide and the westerly portion of the proposed extension would continue these dimensions through the curve to the north parallel to Central Avenue.

The sixty-five feet of the northbound portion of the proposed extension, however, would not continue the same dimensions as the existing road. The right-of-way would decrease to a fifty-foot width and the paved cartway would decrease to a thirty-foot width. Although the proposed extension has the requisite street width under the RSIS if classified as a "residential access" street, which is the "[l]owest order, other than rural street type, of residential streets," it would exceed the maximum cartway width standards by two feet. Accordingly, the applicant sought a de minimis exception from this width requirement under N.J.A.C. 5:21-3.1.

Dietrich further testified about the proposed plan to eliminate sidewalks on the easterly side of the street because the houses were only planned to be placed on the westerly side of the street based on the configuration of the lots. Therefore, according to Dietrich, a sidewalk on the east side would effectively be a "private promenade" and would "lead to nowhere." On cross-examination Mark Gibson, applicant's other engineer, acknowledged the extension could be classified as a "high intensity residential access street" for purposes of determining cartway width under N.J.A.C. 5:21-4.2 based on the intensity of development served by the street. Neither engineer acknowledged any classification of the street in development intensity, however, for purposes of the sidewalk requirement, nor did they acknowledge that two sidewalks were required or seek a waiver on behalf of the applicant.

Dietrich also testified that a bulbous turnaround area at the end of the proposed extension into the subdivision would provide no benefit to the City, would "serve no true function" and would not adversely affect fire safety. Dietrich expressed his belief that fire trucks would be able to access the proposed lots and provide sufficient fire and safety services similar to the existing 67th Street, which is a dead end street with no cul-de-sac, as are many other streets in Sea Isle City, considering the minimum nature of the length of the extension and the limited number of homes (a maximum of six) to be served by the proposed cul-de-sac.

Andrew Previti, the Board Engineer, commented that he did not have a problem with the request for a waiver to exceed the cartway width ("[it] is not a bad thing") or the proposed street layout. He conveyed a concern, however, expressed by Fire Chief John Mazurie in his March l6, 2001 memo to the Board, that there would not be enough access to get fire and emergency equipment to the proposed houses without a bulbous turnaround. Previti noted the age of the comment and that the plans had been revised in 2003 addressing some of the other concerns of the Fire Chief expressed in the letter such as the addition of a fire hydrant. Although the Engineer believed the lots would be accessible based on the proposed layout, he recommended the Board obtain further input from the fire department and suggested an updated comment from the Fire Chief be a condition of final approval. He also noted the Public Works Department's request that one side of the street be designated no-parking to accommodate access and back-up of trash and recycling trucks. Previti also expressed the opinion that a sidewalk would not serve any purpose along the rear yard of the existing properties, noting there were sidewalks along 67th Street and that a pedestrian walking north toward the beach could cross the new street to the sidewalk on the west side.

Members of the Board expressed a preference for a dead-end, rather than a cul-de-sac. Chairwoman Urbaczewski stated that "from a safety point, I think I'd rather have it be a dead end than a cul-de-sac where you're going to create more traffic going down that street. If the sign says dead end, I think you essentially have less traffic. . . ." She also stated that "[i]f you have a cul-de-sac, you're going to have people driving down that cul-de-sac to preview whatever's there and turn around. To me it creates more traffic. . . ."

Previti also referenced the DEP's newly promulgated stormwater management regulations and noted the applicant's system was "designed with recharging of storm water in mind." He was not sure, however, whether the design system conformed to the most recent requirements, and recommended final approval be conditioned upon the plan's compliance. The Board Solicitor also confirmed that a variety of other governmental agencies had concurrent jurisdiction over the subdivision plans and would need to "weigh in on this application." The applicant further acknowledged he would have to comply with the requirements of the local zoning ordinance as to density and that the DEP and other agencies would have input and would have to issue permits before any development could take place on the property.

Relative to the issues on appeal, a concern was expressed by a neighbor about the safety of emergency and sanitation trucks backing up from the dead-end street. The record also contains a letter from the Police Chief to the Board indicating a concern "that if the property was ever buil[t] up that they would have enough parking and enough room for emergency vehicles to get to them." Appellants presented their comments and their counsel participated on their behalf. Of particular concern to appellants, as conveyed by counsel, was the applicant's failure to classify the roadway extension under the RSIS to determine the requisite road width and sidewalk requirements and the Board's reluctance to require him to do so, as well as the potential safety problems of the proposed narrower dead-end roadway with sidewalks on only one side. Appellants were also concerned that the Engineer's review of the plan had been performed prior to the new DEP stormwater regulations.

The Board Solicitor explained the specific factual findings necessary for a de minimis exception from the RSIS requirements: (1) that it is consistent with the intent of the Site Improvement Act; (2) that it is reasonable, limited and not unduly burdensome; (3) that it meets the needs of public health and safety; and (4) that it takes into consideration the existing infrastructure and possible surrounding development. See N.J.A.C. 5:21-3.1(g). He expressed the further understanding, with which the applicant's experts concurred, that essentially the applicant was requesting the Board join in his application to the DCA for a waiver and that the Resolution would become part of a further submission to the DCA as a part of its review, but that ultimately it was the state agency's determination whether or not to grant a waiver.

Previti also commented upon the four findings the Board was required to make, stating:

In relation to the idea of burdensome, this street is really no different than, as far as access goes, from the streets in the lagoons. All the places, they're all dead end streets. Those are streets that our ambulance corps has to negotiate even during the summer months, the same thing with the police department, and they're capable of doing that. So I don't think it's burdensome. And as far as infrastructure, this is an extension of an existing street. I mean, that, in and of itself, satisfies the criteria. The existing street is there, 67th Street is there. Sewer and water are there and they're simply being extended. So, certainly those two criteria can easily be met and I think should be noted as part of the findings of fact.

The Board voted to approve the subdivision application and grant the two requested waivers to exceed the requirements of cartway width and eliminate the bulb of the cul-de-sac. In its Resolution adopted on May 17, 2004, the Board granted applicant "a waiver from the provisions of the City's Code and/or the Resident[ial] Site Improvement Standards that would otherwise require a cul-de-sac at the terminus of the extension of 67th Street and to exceed the permitted cartway width for the extension of 67th Street as proposed and indicated on the plat. . . ." The Board found the applicant proved that the exception and waivers met the four identified criteria of N.J.A.C. 5:21-3.1(g), and further found that the specific waivers sought by the applicant were, "in the Board's opinion, de minimis as that term is defined and/or utilized in the State's Residential Site Improvement Act." The Board further included, as a condition of approval, the following:

(i) The Applicant shall comply with all federal, state and local laws, rules and regulations and shall obtain any and all other required governmental approvals necessary for this subdivision. Approval granted herein is further condition[ed] upon compliance with all conditions required under any approvals received from other governmental agencies. If any other governmental agency grants a waiver or variance of an applicable regulation, this Board shall have the right to review that issue as it relates to the approvals granted by this Board, and to modify or amend same.

The objectors challenged the Board's action by a complaint in lieu of prerogative writs and the matter proceeded before the Law Division. By case management order, the court disposed of the matter through a summary judgment motion. Appellants argued the Board effectively exempted the applicant from compliance with the procedures and guidelines for approval and review under the RSIS by essentially treating the proposed road as an extension of the existing 67th Street, without requiring that it be classified according to street type and intensity for purposes of cartway and sidewalk requirements. According to appellants, by failing to classify the road, the Board could not know whether what it permitted was a de minimis exception or whether it required a waiver directly from DCA. Moreover, its failure to perform the proper four-step RSIS de minimis exception analysis for each proposed deviation rendered its action unreasonable.

Substantively, appellants contended the Board did not have the authority to grant a de minimis exception to eliminate the bulbous cul-de-sac requirement and ignored public safety issues when it did so. Appellants further argued the Board failed to classify the extension as a high density residential access street and to address the fact that a waiver was needed to eliminate a sidewalk. Furthermore, appellants contended the proposed development was a "major development" subject to the new DEP stormwater regulations; therefore, the Board should have required the applicant to comply with the regulations and should have expressly conditioned its approval on compliance.

The Board emphasized to the trial court that the relief sought by the applicant was the subdivision of an oversized parcel into three conforming lots. It contended that the street that would result after the development was completed would essentially mirror the existing 67th Street, which was a dead-end without a bulbous turnaround, and that such extension of the existing road was consistent with the intent of the RSIS. The Board further argued it knew exactly what the applicant was proposing based on its peculiar knowledge of local conditions and it did not have to know whether the street, as extended, was a residential access road, a rural lane, or any other type of roadway listed in the RSIS table of classification. The applicant and Board argued the two-foot cartway width variation of the roadway extension and the elimination of both the sidewalk on the easterly side of the extension and the bulbous cul-de-sac at the end of the extension were de minimis under the RSIS and justified on the record presented.

Alternatively, the Board argued that if it had exceeded its authority in granting the exceptions as de minimis, its Resolution properly conditioned the granting of subdivision approval upon the applicant obtaining all required approvals from other governmental agencies, which would encompass a waiver of the RSIS by the DCA. As to the new stormwater regulations, although at oral argument there was discussion as to the amount of aggregate area that would be disturbed and applicant suggested it might not be subject to the new regulations, both the Board and applicant acknowledged that compliance was an implicit condition of the Resolution requiring approval by other governmental agencies (such as the DEP).

In a memorandum of decision dated May l7, 2005, the court noted the application met all the substantive requirements of the City's zoning and subdivision ordinances. It found the proposed roadway was an extension of 67th Street, which essentially matched the existing street; thus, the Board did not have to determine how the extension would be classified. The court was satisfied the Board acted within its power in granting the waiver to exceed the cartway width standards. The court also deferred to the Board's unique knowledge of local conditions and, particularly considering that the proposed street is a dead-end street like most other streets in town, did not find the Board's granting of a waiver for a bulbous cul-de-sac to be arbitrary and capricious. Although the court found the subdivision was probably exempted from the stormwater regulations, it alternatively concluded the conditional approval protected the interests of all parties since the applicant would have to seek review and obtain the approval of other governmental agencies and comply with applicable laws and regulations when he sought to develop the property. Accordingly, the court found the Board's approval of the preliminary subdivision application with waivers to be a proper exercise of its power and by order of May l7, 2005, affirmed the Board's action as memorialized in the Board's Resolution.

The objectors appealed, and the parties essentially renewed the arguments made to the trial judge. We are satisfied the Board properly granted the subdivision application with the following modifications.

N.J.A.C. 5:21-3.1 sets forth the procedure for a municipal approving authority to grant a de minimis exception from a site improvement standard based on a finding it is: (1) consistent with the intent of the Site Improvement Act; (2) reasonable, limited, and not unduly burdensome; (3) meets the needs of the public health and safety; and (4) takes into account existing infrastructure and possible surrounding future development. N.J.A.C. 5:21-3.1(g). Examples include, but are not limited to, reducing cartway width. N.J.A.C. 5:21-3.1(f)3. Within thirty days of granting a de minimis exception request, the municipal approving authority is required to send a copy of the Resolution to the DCA, Division of Codes and Standards. N.J.A.C. 5:21-3.1(d). Although a de minimis exception is required to be filed with the DCA, there is nothing in the regulation that contemplates or requires any further action or approval by that agency.

It appears the westerly portion of the proposed extension of 67th Street continues the dimensions of the existing street. We recognize that the sixty-five feet northbound extension is narrower in right-of-way and cartway width than the existing road. We do not believe, however, it was necessary for the Board to classify the road for purposes of considering applicant's cartway waiver request. We conclude the Board did not exceed its authority or act arbitrarily in considering that the extension had the requisite fifty-foot-wide right-of-way for a residential access road under the RSIS and in granting a de minimis exception to exceed the cartway width requirements by two feet based on this scenario. We are also satisfied the Board considered and found the four criteria necessary for the grant of a de minimis exception and that the record supports such finding.

We understand the Board did not technically comply with the requirements of N.J.A.C. 5:21-3.1(d) in that it failed to forward a copy of the Resolution to the DCA within thirty days because of the pending appeal; however, that is not fatal to its substantive grant of the exception. Accordingly, the action of the Board granting a de minimis exception to the applicant "to exceed the permitted cartway width for the extension of 67th Street as proposed and indicated on the plat" is affirmed, and the Board is directed to send a copy of the document constituting the de minimis exception to the DCA within thirty days and to explain the reason for its initial delay.

As to the cul-de-sac waiver, however, we are not satisfied it was the type of minor design variation eligible under the regulations to be considered a de minimis exception that could be granted solely by the Board and would simply require a ministerial filing with the DCA. Although throughout these proceedings the terms "exception" and "waiver" have been used interchangeably, they are, in fact, different procedures under the RSIS. The Board may grant an exception if the design deviation is de minimis, and conformance with the standard is impractical, given the nature of the property, or would impose undue hardship on the applicant. N.J.A.C. 5:21-3.1(a). The Board, however, does not have the authority to grant a waiver request but must make that referral to the Site Improvement Advisory Board, an extension of the DCA, which may approve a waiver of any site improvement standard in the interest of public health and safety.

In fact, based on our review of the record, it appears that everyone's understanding was that the cul-de-sac issue was being treated more in the nature of a waiver request under N.J.A.C. 5:21-3.2 than a de minimis exception under N.J.A.C. 5:21-3.1. As the Board Solicitor noted, the Board was, in essence, joining in the request with the applicant, and making a record that the applicant would submit with its waiver application to the DCA, with all parties' expectations being that the DCA would have the final approval decision over whether the waiver was granted. The flaw in the Board's action and Resolution, however, is that it failed to make a distinction between the two procedures, and in Paragraph 2D of its Resolution it found both the cartway width and cul-de-sac elimination waivers to be de minimis and it did not clearly provide that the applicant was expressly required to obtain a waiver of the requirement of a bulbous cul-de-sac from the DCA in accordance with N.J.A.C. 5:21-3.2. We need not make a determination as to the merits of the Board's findings supporting the applicant's request for a waiver of this requirement, but need only determine that the Board did not have the authority to preempt the DCA's waiver procedure through the ambit of a de minimis exception. We therefore modify the Resolution in accordance with N.J.A.C. 5:21-3.2(f) to expressly provide for the DCA's disposition of the cul-de-sac waiver as a condition of the Board's approval.

The applicant's plan, approved by the Board, depicts a proposed sidewalk along the westerly side of the 67th Street extension from where the new houses would be accessible. No sidewalk was proposed on the easterly portion of the street behind the existing houses. The applicant did not seek a de minimis waiver for the elimination of sidewalks on one side of the street and, despite urging by appellants' counsel, the Board did not address whether such waiver was necessary. Moreover, although the applicant's engineer explained the reason for the elimination of sidewalks behind the rear yard of the existing houses and the Board's engineer expressed his opinion that a sidewalk on the easterly side of the street would not serve any purpose, the Board made no findings as to whether the deviation was de minimis and met the criteria of N.J.A.C. 5:21-3.1(g). Nor did the Board grant such a waiver. Paragraph 2D of the Resolution referencing the waivers contains no reference to the sidewalks, nor does the trial judge's decision.

The effect of the Board's preliminary subdivision approval of the plan as submitted, however, was to allow the elimination of sidewalks on one side of the street, arguably by an implicit waiver. Accordingly, we remand this issue to the Board to consider whether two sidewalks are required for this proposed plan under the RSIS and, if so, and the applicant wishes to make an application for a de minimis exception under N.J.A.C. 5:21-3.1, whether such relief is appropriate and whether the requested exception meets the criteria of N.J.A.C. 5:21-3.1(g).

Lastly, we are not persuaded by appellants' challenge pertaining to DEP's February 2004 stormwater regulations. The Board did not ignore the newly enacted regulations. The Board Engineer noted that the regulations had come into effect a month before the hearing and recommended that approval be conditioned upon compliance with the new regulations. The Board did not abuse its discretion at this preliminary subdivision approval stage in not determining the applicability of the new regulations to this development and in not reviewing the plan to determine compliance. RSIS compliance can be met either before the planning board issues preliminary or before it issues final approval. N.J.A.C. 5:21-1.7(a). Therefore, the issue of applicability of the regulations was not before the trial court and its purported alternate finding of non-applicability was improvidently made and not binding in the ultimate review of the development application.

Nor did the Board err in failing to make applicant's compliance with the 2004 stormwater management regulations an express condition of approval of his preliminary major subdivision application. The record is clear that all parties anticipated significant review of this application by the City's professionals and local and state agencies, including the DEP, as to a multitude of items. The applicant will be required to satisfy all conditions and comply with all requirements, including all environmental standards pertaining to stormwater management, prior to final approval and the issuance of permits. We are also satisfied that such conditional approval is implicit in the Board's Resolution.

We affirm the Board's grant of preliminary major subdivision approval and a de minimis exception to exceed the permitted cartway width for the extension of 67th Street as indicated on the plat and direct the Board to now comply with the thirty-day DCA filing requirement of N.J.A.C. 5:21-3.1(d). We also modify the Resolution to expressly provide for the DCA's disposition of the cul-de-sac waiver as a condition of the Board's approval pursuant to N.J.A.C. 5:21-3.2(f). We remand to the Board the issue of whether two sidewalks are required for the proposed plan under the RSIS and it shall take such other prompt action as may be appropriate to conform to this opinion. We do not retain jurisdiction.

 

Regulations promulgated pursuant to the New Jersey Uniform Site Improvement Standards Act, N.J.S.A. 40:55D-40.1 to -40.7, and adopted in l997.

The new regulations setting forth the stormwater management design and performance standards for proposed development became effective on February 2, 2004, shortly before the Planning Board hearing, and on that date were incorporated into the RSIS. See

N.J.A.C. 7:8-1.5(c); see also N.J.A.C. 5:21-7.1 to -7.9.

The applicant applied for major subdivision approval because it required the extension of an off-tract improvement, i.e. the roadway to service the lots. N.J.S.A. 40:55D-5.

See N.J.A.C. 5:21-4.2, Table 4.3 "Cartway and Right-of-Way Widths (the RSIS require that "residential access" streets have a fifty feet right-of-way width and a twenty-eight feet cartway width).

N.J.A.C. 5:21-4.2(b) provides the "[i]ntensity of development shall be based on the number of dwelling units per gross acre of land served by a particular street, excluding the acreage of dedicated common open space or other areas restricted from future development," with "high" intensity consisting of more than eight dwelling units per gross acre.

See N.J.A.C. 5:21-4.2, Table 4.3, pertaining to cartway widths, which lists one sidewalk on a "Low intensity" residential access street and two on a "Medium intensity" and "High intensity (on-street parking) residential access street; see also N.J.A.C. 5.21-4.5(a) ("Sidewalks . . . shall be required, depending on road classification and intensity of development, in accordance with the requirements set forth in Table 4.3 in N.J.A.C. 5:21-4.2.").

Previti's original comments to the Board were dated May l5, 200l and were updated on May l2, 2003, based on revised plans submitted by the applicant. Subsequent revisions were submitted on May 24, 2003.

The stormwater regulations apply to a "Major development", i.e., "any 'development' that provides for ultimately disturbing one or more acres of land or increasing impervious surface by one-quarter acre or more. . . ." N.J.A.C. 7:8-1.2.

See N.J.A.C. 5:21-3.2 (providing that a municipality or developer may individually or jointly request a waiver of any site improvement standard adopted under the RSIS from the DCA, setting forth the procedure and waiver review process and providing that the Site Improvement Advisory Board may approve such request "based on any danger to public health and safety that would be caused by adherence" to such standard.).

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July 26, 2006