N & K VENTURES, LLC v. ALLOWAY TOWNSHIP PLANNING BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0242-07T10242-07T1

N & K VENTURES, LLC,

Plaintiff-Appellant,

v.

ALLOWAY TOWNSHIP PLANNING BOARD,

Defendant-Respondent,

and

RONALD TORTU, LANA TORTU, MICHELE

LAMB, CHARLES LAMB, CHARLES OWEN,

MARJORIE OWEN, CURTIS HURFF,

DENISE HURFF, CHARLES ZIMMERMAN,

KAREN ZIMMERMAN and DONICA ISAIA,

Defendants/Intervenors-

Respondents.

________________________________________________________________

 

Argued May 19, 2008 - Decided

Before Judges S.L. Reisner, Gilroy and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Docket No. L-338-06.

Stacy S. Cohen argued the cause for appellant (Dilworth Paxson LLP, attorneys; Ms. Cohen, on the brief).

Joan Sorbello Adams argued the cause for respondent (Adams & Adams, attorneys; Ms.

Adams, on the brief).

Respondents, Ronald Tortu, Lana Tortu, Michele Lamb, Charles Lamb, Charles Owen, Marjorie Owen, Curtis Hurff, Denise Hurff, Charles Zimmerman, Karen Zimmerman and Donica Isaia, have not filed a brief.

PER CURIAM

Plaintiff N&K Ventures, LLC (N&K) appeals from a July 30, 2007 order that granted summary judgment to defendant Alloway Township Planning Board (Board). In so doing, the Law Division concluded that the Board acted properly when it denied N&K's application for preliminary subdivision approval to build a twenty-four unit housing development. We affirm.

I.

Plaintiff is the owner of a 39.38 acre parcel of land in Alloway Township that is currently in agricultural use and is zoned accordingly. The site fronts on Cobbs Mill Road in Alloway and its back forms the municipal boundary between Alloway and Quinton Townships. Plaintiff also owns a 167-acre parcel in Quinton Township that is adjacent to the Alloway site and is situated on the other side of the boundary line that runs between the two townships.

Plaintiff's plan called for subdividing the 39.38 acre parcel into twenty-five lots in connection with the development of twenty-three single-family residences. Of the two remaining lots, one was deed-restricted against further subdivision and would retain the residence that was already situated there. That lot would also serve as the location for one of the development's two stormwater drainage basins. Plaintiff proposed to site the other drainage basin on the property it owns in Quinton. The twenty-fifth lot would be preserved for open space.

When the Board denied plaintiff's application on August 9, 2006, it did so for four reasons: lack of access to township roads, insufficient information concerning the stormwater management plan, failure to comply with septic regulations promulgated by the Department of Environmental Protection ("DEP"), and failure to provide satisfactory agricultural buffers. We confine our discussion to those four issues and begin with the first of the four.

A. Roadway access

Plaintiff's subdivision proposal specified that access to the development would be provided by a boulevard running through plaintiff's Quinton property that would connect to Peck's Corner Road in Quinton. Although no township ordinance imposed a requirement that access to the development be provided via a road in Alloway Township itself, Board members and members of the public expressed considerable objection to this aspect of plaintiff's application. The feasibility of constructing an access road between the development and an Alloway roadway was a major topic of discussion at the hearings. There were only two possible ways to do so: build a road across the one deed-restricted lot to Cobbs Mill Road, or construct an internal road between the development and the nearby "Heritage" subdivision that was being constructed by a different developer, the Heritage Building Group. Neither of these alternatives proved viable. As a result, plaintiff's final application provided only for an unpaved, emergency access road across the deed-restricted lot, Lot 2.07.

B. Stormwater management

The issue of stormwater management and flooding also received considerable attention from the Board and members of the public because homeowners in the area adjacent to plaintiff's proposed subdivision were already experiencing significant problems with flooding and drainage. The application specified that stormwater runoff from the subdivision would be managed by the two drainage basins. The basin on Lot 2.07 would accept water solely from Alloway. The basin in Quinton would drain the access road, surrounding properties in Quinton, and about 100 feet of the rear Alloway lots. Consequently, plaintiff's proposal to accomplish stormwater management by establishing one stormwater retention basin in the development itself and the other in Quinton was viewed as problematic by the Board for two reasons: (1) the difficulties presented by requiring Alloway taxpayers to pay for maintenance of a retention basin that was located in a different municipality; and (2) plaintiff's stormwater management plan included an emergency spillway that would direct the discharge towards Cobbs Mill Road, which was itself known to flood during heavy rains.

Carl Gaskill, the Board's engineer, testified that plaintiff had not provided him with sufficient storm design information to enable him to opine with reasonable certainty that plaintiff's stormwater management designs would work. Consequently, Gaskill asked plaintiff in technical review letters written on May 1, 2006, and June 8, 2006, to provide additional information concerning its stormwater management plan. At the July 12, 2006 Board hearing, Gaskill testified that he still did not have all of the information he needed to conduct a final review of the stormwater management plan and asked that plaintiff provide him with calculations, worksheets, and additional data, particularly with regard to the Quinton basin. Plaintiff agreed to do so.

In a technical review letter dated August 4, 2006, Gaskill acknowledged receiving a supplemental stormwater management report from plaintiff, but stated that the report omitted certain calculations, worksheets, and data that he needed for his review. At the August 9, 2006, hearing, Gaskill testified that he had just received the information requested in the August 4 letter. Consequently, he had not had time to review the information thoroughly, but based on the explanation plaintiff's expert provided to him during a meeting earlier that week, he did not anticipate "any problems" with the stormwater management plan. Plaintiff had earlier refused to consent to any further extensions of time.

C. Agricultural buffer

Near the end of the July 12, 2006 Board hearing, the Board questioned whether plaintiff's plan conformed with Alloway's Land Development Ordinance 75-46.2 (2006) ("Ordinance 75-46.2"), which requires the installation of a fifty-foot buffer between a residential subdivision and an adjacent agricultural use. Plaintiff was required to comply with the ordinance because the property plaintiff owned in Quinton was currently being used for agricultural purposes, thereby triggering the agricultural buffer requirement. In addition to the required fifty-foot barrier, an applicant is also required to install one of what the parties refer to as "vertical amenities," which includes fencing, shade trees and shrubbery. The ordinance requires the fifty-foot setback to be located on the applicant's property. Because plaintiff's proposal sited the buffer in Quinton, not in Alloway, it did not conform with the ordinance. Plaintiff agreed to submit plan revisions that would comply.

At the August 9, 2006 hearing, plaintiff asserted that: it had revised its plans so as to fully conform with the agricultural buffer requirement; no variances were needed; and it was not requesting any waivers or variances. Gaskill testified that the proposed buffer appeared to satisfy the ordinance, but that the revisions showing mounding, grading, and vegetation details had just been provided to him and that he had not had time to review them fully.

Members of the public who testified at the hearing expressed dissatisfaction with the proposed buffer, noting that it did not extend to all of the adjacent farmland and that much of the buffer was located in Quinton and thus outside of the Board's jurisdiction. Solutions proposed by plaintiff included conservation easements, rights of access, bonding and a homeowners' association that spanned both townships. Ultimately, the Board rejected those proposals and concluded that plaintiff's proposal did not satisfy the requirements of the ordinance.

D. DEP septic approval

A concern that lingered throughout the hearings involved plaintiff's intentions with regard to its adjoining property in Quinton. At the outset, Board members inquired whether plaintiff planned to develop the Quinton site. Dale Riggs, plaintiff's managing member, replied that there would eventually be development in Quinton that when combined with the twenty-four residential lots in Alloway would exceed fifty lots. Members of the public later provided the Board with a concept plan prepared by plaintiff that depicted a large, adjoining subdivision in Quinton. Near the end of the hearings, Riggs attempted to revise his position by stating that while there would be some development in Quinton, no specific number of lots had been established. He stated, "I want to develop the Quinton piece to the extent that I possibly can without it being a detriment."

The question of whether plaintiff intended to develop its Quinton property for residential use was critical because of a DEP regulation that requires developers who intend to construct more than fifty homes to submit a proposed septic plan to the DEP for its approval. N.J.A.C. 7:9A-3.18(d) provides:

No subdivision approval shall be granted by any municipal or other authority in the State to cover 50 or more realty improvements, or less than 50 where the subdivision extends into an adjoining municipality or municipalities and will, in the aggregate, cover 50 or more realty improvements, until the Department has certified that the proposed sewerage facilities for realty improvements comply with applicable State standards.

[(emphasis added).]

Plaintiff argued before the Board that it proposed to build only twenty-four realty improvements, no other application was pending in either Alloway or Quinton and that accordingly, the DEP septic regulation should not be applied. The Board disagreed and concluded that unless plaintiff obtained septic system certification from the DEP, the Board lacked authority to grant preliminary subdivision approval. Specifically, the Board determined that the DEP regulation was intended to address subdivisions like plaintiff's, where development straddles a municipal boundary. In support of that conclusion, the Board pointed to the portion of the DEP regulation that specifically provides that even if the realty improvements number less than fifty, such total is deemed satisfied "where the subdivision extends into an adjoining municipality . . . and will, in the aggregate, cover 50 or more realty improvements . . . ." N.J.A.C. 7:9A-3.18(d).

Board members pointed to numerous portions of the record that demonstrated plaintiff intended to build a large, integrated development that spanned both sides of the Alloway/Quinton Township line, including: plaintiff's ownership of an equity interest in 167 acres in Quinton that are adjacent to the Alloway site; plaintiff's admission that it planned to develop the Quinton property; plaintiff's request at the outset of the Board's proceedings that the Board chairman recuse himself because he was the Quinton Township Planner and the development would affect both municipalities; plaintiff's plan to locate significant parts of the development's infrastructure in Quinton, including the main access road and drainage basin, thus necessitating that approval of the Alloway project be conditioned on Quinton's approval of subdivision of the Quinton property; and plaintiff's proposal that a homeowner's association consisting of both Alloway and Quinton property owners be formed.

The Board ultimately determined that the combination of the Alloway and Quinton projects would exceed fifty building lots. Its resolution explained:

The Applicant testified at the public hearing that although it had presented a concept design, which permitted 33 lots in Quinton Township, it would develop no more than 23 residential lots in the Quinton parcel. The Applicant expressed its opinion that the development in Quinton Township was not a proper area of concern for the Alloway Township Planning Board. The Board was concerned that there would be no oversight of this issue when the Applicant applied for an isolated development in Quinton and that the time differential in the applications would allow the applicant to claim it was a separate and distinct development. In weighing the credibility of the Applicant on this issue the Board felt there was sufficient reason to believe that the Quinton Parcel would be developed with 33 lots. The Board is mindful of its obligation under the State Environmental regulations.

The Board concluded that "the regulations promulgated by the State of New Jersey Department of Environmental Protection concerning 50 or more realty improvements prohibited the Board from approving this project until the proper certifications were issued by the New Jersey Department of Environmental Protection."

E. Denial of the application

At the conclusion of the August 9, 2006 hearing, Board Member John Cianfrani moved to deny plaintiff's application for preliminary subdivision approval. He cited the lack of satisfactory emergency access to the subdivision and plaintiff's failure to comply with DEP septic regulations. Other members noted that parts of plaintiff's design were located in Quinton and the location of the access road and a water retention basin entirely outside the control of Alloway Township were of great concern. Citing the importance of having an access road to the subdivision that could be maintained by Alloway, the Board concluded that plaintiff had not adequately investigated the possibility of an interconnection between its subdivision and the Heritage project.

Resolution 21-2006, which memorialized the denial of plaintiff's application, specified that "[f]looding and drainage issues are of major importance in Alloway Township and many areas of the Township experience serious flooding problems." It stated that plaintiff's decision to locate "the primary storm basin" in another Township caused concern for residents' safety and that this concern was exacerbated by the fact that the Board engineer "had not received sufficient storm design information to testify with certainty that the design for the Quinton Township facilities would work."

The Board described plaintiff's proposed agricultural buffers without commenting on whether the design conformed with Ordinance 75-46.2. It did state, however, that plaintiff "failed to show the required agricultural fence on the plans."

With regard to the anticipated development in Quinton, the Board's Resolution notes that plaintiff initially submitted a concept plan indicating that there would be a combined total of fifty-seven building lots in the Alloway and Quinton projects. Citing DEP regulation N.J.A.C. 7:9A-3.18(d) that requires DEP septic certifications for developments in excess of fifty realty improvements, the Board observed that plaintiff had not applied for any certifications. Consequently, the Board concluded that it was barred from granting plaintiff subdivision approval until DEP certified the proposed sewerage facilities. The Board's resolution stated that it was "mindful of its obligation under the State Environmental regulations."

After the Board rejected its application, plaintiff filed a complaint in lieu of prerogative writs in the Law Division. The judge sustained the Board's denial of plaintiff's application based primarily on plaintiff's failure to comply with the agricultural buffer ordinance and the DEP regulation.

Noting that the Board did not cite the non-conforming agricultural buffer as a reason for the denial, the judge nevertheless addressed the issue and found that plaintiff did not satisfy the notice requirements of N.J.S.A. 40:55D-11 and failed to apply for a variance from the agricultural ordinance. Thus, he concluded that the Board lacked authority to approve plaintiff's application. The judge also addressed the Board's determination that plaintiff's failure to submit to DEP a proposal for septic system design required the Board to reject plaintiff's application. The judge concluded that the Board's credibility findings concerning the size of the Quinton development were reasonable and that there was a sufficient basis in the record for the Board to have found that the combined development would exceed fifty realty units.

As to the stormwater calculations, the judge observed that plaintiff's failure to submit stormwater calculations at least ten days before the final hearing denied the surrounding property owners the opportunity to review that data. Characterizing the failure to submit the requested information as a "very technical reason," he concluded that it nevertheless provided a sufficient basis to deny the application.

The judge rejected the Board's reasoning concerning the emergency access road, holding that there was no requirement that one be provided. He also found that plaintiff's failure to provide an entrance to the development through Alloway did not constitute a sufficient basis to deny the application. Because the Board did not cross-appeal from these holdings, we will not address them.

On appeal, plaintiff argues that the judge erred by affirming the Board's action and concluding that plaintiff failed to: satisfy the notice requirements of N.J.S.A. 40:55D-11; seek a variance from the Township's agricultural buffer ordinance or satisfy the provisions of that ordinance; obtain DEP approval of its septic plan; provide the required stormwater calculations in a timely manner; and seek concurrent approval of its Quinton development from the Quinton Planning Board.

II.

We analyze plaintiff's claims in accordance with our scope of review, which is a narrow one. When a trial court is presented with a challenge to a decision of a planning board, the board's decision must be affirmed unless it is arbitrary or unreasonable. Harvard Enters., Inc. v. Bd. of Adj. of Madison, 56 N.J. 362, 368 (1970). Moreover, we have recognized that board members living in a community are well-versed in the characteristics of the sites before them, Masterson v. Christopher Diner, Inc., 85 N.J. Super. 267, 273 (App. Div. 1964), certif. denied, 44 N.J. 406 (1965), and accordingly, a reviewing court should defer to the expertise and discretion of a local land use board. Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998). A board's decision is presumptively valid and is reversible only if its decision is unsupported by the record or constitutes an abuse of discretion. Ibid. As the Court observed in Kramer v. Bd. of Adj. of Sea Girt, 45 N.J. 268, 296-97 (1965):

[T]he law presumes that boards of adjustment . . . will act fairly and with proper motives and for valid reasons. . . .

Such public bodies, because of their peculiar knowledge of local conditions must be allowed wide latitude in the exercise of delegated discretion. Courts cannot substitute an independent judgment for that of the boards in areas of factual disputes; neither will they exercise anew the original jurisdiction of such boards or trespass on their administrative work. So long as the power exists to do the act complained of and there is substantial evidence to support it, the judicial branch of the government cannot interfere. A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable. Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.

"'Arbitrary and capricious' is typically understood to mean 'willful and unreasoning action, without consideration and in disregard of circumstances.'" Avalon Manor Imp. Ass'n, Inc. v. Twp. of Middle, 370 N.J. Super. 73, 91 (App. Div.)(quoting Beattystown v. Dept. of Envtl. Prot., 313 N.J. Super. 236, 248 (App. Div. 1998)), certif. denied, 182 N.J. 143 (2004).

The appellate court applies the same standard as the trial court. It gives deference to the Board's discretion and reverses only if the Board's action was arbitrary, capricious or unreasonable. Booth v. Bd. of Adj. of Rockaway, 50 N.J. 302, 306 (1967). Nonetheless, neither a trial court nor an appellate court is obliged to give deference to a Board's decision if the Board was deciding an issue of law. In such instances, the Board's determination is subject to a de novo review. Grancagnola v. Planning Bd. of Verona, 221 N.J. Super. 71, 75 (App. Div. 1987).

III.

We turn first to plaintiff's contention that the Law Division incorrectly concluded that plaintiff did not satisfy the notice requirements of N.J.S.A. 40:55D-11 in connection with the agricultural buffer requirement. It maintains that if notice was in fact defective, then the court should have remanded the matter for a new hearing rather than sustaining the Board's denial. In the alternative, plaintiff asserts that if notice was adequate and the Board had proper jurisdiction, then failure to conform with the requirements of Ordinance 75-46.2 does not justify denial of its application because there was substantial credible evidence in the record to support the grant of a variance.

Plaintiff further asserts that the notice, which was accepted as proper by the Board, fully complied with the requirements of N.J.S.A. 40:55D-11. Plaintiff also argues that the Board's professionals did not identify the need for a variance during the completeness review and that the first indication that a variance was required did not occur until the public hearings. Thus, plaintiff contends that the notice, which stated that "additional variances or waivers might be needed," was more than sufficient to inform the public of the nature of its application.

The Board responds that it was plaintiff's obligation to identify all necessary variances and to serve the public with proper notice. It contends that plaintiff did neither. In particular, the Board contends plaintiff was required to include all necessary variances in its public notice since otherwise, members of the public with homes adjacent to the subdivision would have been misled into believing that the development fully complied with the agricultural buffer requirement. The Board thus asserts that plaintiff's notice was "deficient to provide the Board with jurisdiction to consider a variance request." Despite these arguments that plaintiff's public notice of its application was deficient, the Board asserts that the notice "met the requirements of N.J.S.A. 40:55D-11 and provided the planning Board with jurisdiction to hear the application as submitted."

On June 3, 2006, plaintiff published the following notice in the local newspaper, which provided in pertinent part:

Applicant seeks to subdivide 39.38 acres into 26 single-family residential lots, together with any other variances and/or waivers as may be required or determined to be necessary under the zoning ordinances of Alloway Township and based on the reports of the Planning Board professionals for property located at Cobbs Mill Road and more specifically identified as Block 109, Lots 2.07, 3 & 3.01 on the Tax Map of the Township of Alloway located in the A-Agricultural Zoning District.

[(emphasis added).]

A similar notice was also sent by prepaid certified mail to all persons on the certified property owner list ten days prior to the date of the public hearing.

The judge did not find fault with the original notice. Rather, he reasoned that once plaintiff learned that a variance was needed, it was required to re-notice the proceeding and specifically describe the variance that was sought. The judge erred in so concluding.

"[P]roper public notice in accordance with the requirements of the [Municipal Land Use Law] is a jurisdictional prerequisite for a zoning board's exercise of its authority." Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adj., 397 N.J. Super. 335, 350 (App. Div. 2008). N.J.S.A. 40:55D-11 requires that notices of hearings on development applications state the date, time and place of the hearing and the nature of the matters to be considered; identify the property proposed for development by street address or tax lot and block numbers; and provide the location and times at which any maps and documents for which approval is sought are available for public inspection. Plaintiff's notice clearly complied with the majority of these requirements. The only question is whether the notice adequately stated the "nature of the matters to be considered."

The leading case interpreting N.J.S.A. 40:55D-11 is Perlmart of Lacey, Inc. v. Lacey Township Planning Board, 295 N.J. Super. 234 (App Div. 1996), in which we rejected the argument that an applicant is required to itemize and list all variances that might be required if the subdivision application is approved:

the purpose for notifying the public of the "nature of the matters to be considered" is to ensure that members of the general public who may be affected by the nature and character of the proposed development are fairly apprised thereof so that they may make an informed determination as to whether they should participate in the hearing or, at the least, look more closely at the plans and other documents on file.

Thus, "[w]hen a statute requires a notice to be given to the public, such a notice should fairly be given the meaning it would reflect upon the mind of the ordinary layman, and not as it would be construed by one familiar with the technicalities solely applicable to the laws and rules of the zoning commission. Consequently, the critical element of such notice has consistently been found to be an accurate description of what the property will be used for under the application.

[Id. at 237-38 (citations omitted) (emphasis added).]

In Perlmart, we emphasized the need for a "common sense description of the nature of the application," observing that notices couched in the complexities of zoning law would likely be uninformative and confusing to laymen. Id. at 239. Notably, we specifically rejected the argument that a notice was deficient because it failed to itemize all required variances. We concluded that the Legislature never intended the required notice to be that specific. Id. at 237 n.3; see also Pond Run, supra, 397 N.J. Super. at 355.

Applying the rationale of Perlmart and Pond Run, plaintiff's notice, which advised that the property would be subdivided into twenty-four single-family residential lots, was clearly sufficient to inform the public as to the nature of the application. As we observed in Perlmart, supra, 295 N.J. Super. at 237 n.3, there was no requirement that plaintiff give notice of every variance that might arise during the course of the application. Accordingly, the Law Division erred in concluding that plaintiff failed to provide sufficient notice of its intention to seek a variance from Ordinance 75-46.2 and that this failure divested the Board of jurisdiction. Because the application was properly before the Board, plaintiff's equitable arguments requesting a remand are moot.

IV.

Next, we consider plaintiff's argument that its revised agricultural buffer design complied with the requirements of Ordinance 75-46.2 and that the judge erred when he concluded otherwise. The agricultural buffer plans that plaintiff presented at the August 9, 2006 meeting provided for a fifty-foot buffer along much of the subdivision's perimeter. Plaintiff claimed that this design fully complied with the ordinance and that there was no need for variances or waivers. We disagree. First, the buffer on the western edge of the site was located on plaintiff's property in Quinton and not on the Alloway lots, thereby violating the portion of the ordinance that requires an applicant to provide the fifty-foot buffer "within lots that are adjacent to any shared lot line with an active farm use," not on the farms themselves. Second, the ordinance requires the buffer to run along the entire shared lot line, and not merely those portions of the lot line that the applicant chooses to buffer, which is what plaintiff has proposed to do.

The judge correctly relied on Wawa Food Market v. Planning Board of Ship Bottom, 227 N.J. Super. 29 (App. Div.), certif. denied, 114 N.J. 299 (1988), in support of his conclusion that relief from standards contained in a zoning ordinance may be sought only through the variance procedure. Consequently, the judge properly concluded that plaintiff's failure to fully comply with the agricultural buffer ordinance required plaintiff to apply for and receive variance approval. As the judge aptly reasoned, "The main problem is that there is no application for variance before the Board. It takes jurisdiction away from them to be able to grant it. The plan that's proposed needs that variance. Without it, it can't work." We agree.

A development application cannot be approved if it does not comply with a valid zoning ordinance and no variance is sought. Allendale Congregation of Jehovah's Witnesses v. Grosman, 30 N.J. 273, 277 (1959). Plaintiff does not dispute this well- established principle or the judge's conclusion that a variance was required here. Plaintiff instead argues that the court should have canvassed the record and exercised original jurisdiction to grant the needed variance.

Plaintiff's argument lacks merit. This matter was presented on motions for summary judgment in which a judge is not entitled to resolve disputed issues of fact. Moreover, such procedure exceeds a court's scope of review of municipal planning board decisions. See Kramer, supra, 45 N.J. at 296 (holding that "[c]ourts cannot substitute an independent judgment for that of the boards in areas of factual disputes; neither will they exercise anew the original jurisdiction of such boards or trespass on their administrative work").

In sum, plaintiff submitted an application that did not conform to the requirements of the Township's agricultural buffer ordinance and did not request a variance from that ordinance. Under the circumstances, contrary to plaintiff's claims, the application was not approvable. The court's decision to sustain the Board's denial of the application on that basis was correct.

V.

Next, plaintiff argues that the court erred in finding that DEP septic certification requirements were triggered by plaintiff's subdivision application. As to the applicability of N.J.A.C. 7:9A-3.18(d), the judge held:

I'm satisfied they [the Board] did have sufficient basis to be concerned for the size, the dimension, the magnitude of this project, that it really was a magnitude that had potential to be 50 or more realty units.

And that because of the regulation and the mandate that the approval be given by DEP as to the type of septic facilities before the Board committed itself on an approval that it was reasonable for them to say no, we're not going to give you the approval.

We agree. There was ample evidence in the record to support the Board's conclusion that in the aggregate, the Alloway/Quinton development would exceed fifty units. The interdependence of the adjacent subdivisions, Riggs's initial admission and the Quinton concept plan strongly pointed to a major development situated on both sides of the township line. Moreover, plaintiff's Quinton property is more than four times the size of its Alloway site. Because it is clear from the face of N.J.A.C. 7:9A-3.18(d) that the Board was prohibited from granting preliminary subdivision approval to any development in excess of fifty units, without prior DEP approval, the Board was correct in denying approval on that basis. Indeed, it was required by the language of N.J.A.C. 7:9A-3.18(d) to do so.

VI.

Plaintiff also argues that the Board had no basis to deny the application simply because stormwater calculations were not provided ten days prior to the final hearing. It asserts that Gaskill, the Board's engineer, testified that he had received the requested information and that he felt confident that there would not be any problems. Plaintiff contends that the Board never stated that more review time was needed for the stormwater plan and that, in any event, preliminary approval could have been made subject to Gaskill's final review of the technical data.

The Board responds that plaintiff's failure to submit the stormwater calculations in a timely manner precluded a meaningful review of the design's details. It disputes plaintiff's assertion that Board members never complained about lack of stormwater data, citing excerpts from the July 12, 2006 hearing in which Gaskill stated that he needed more information before he could determine whether the plan was viable. Relying on Field v. Mayor and Council of Franklin Township, 190 N.J. Super. 326 (App. Div.), certif. denied, 95 N.J. 183 (1983), the Board contends that the technical details of stormwater management were an essential element of the development plan and absent that information, the Board had an obligation to deny preliminary approval.

Plaintiff submitted stormwater design information throughout the application process. However, as of the July 12, 2006 hearing, Gaskill still did not have all of the data that he needed, particularly with regard to the Quinton water retention basin. At the close of that hearing, plaintiff promised to provide Gaskill with additional calculations and worksheets. In fact, plaintiff's counsel specifically asked when the information should be submitted and was informed that Gaskill's final report had to be available to the public ten days before the next meeting. Plaintiff does not dispute that Gaskill did not receive the final data until the day before the August 9, 2006 hearing.

In Resolution 21-2006, the Board observed that "[f]looding and drainage issues are of major importance in Alloway Township and many areas of the Township experience serious flooding problems." The Board also observed that the Quinton basin was a "significant part of the stormwater design for this project" and that its proper functioning was "essential." Noting that Gaskill "had not received sufficient storm design information to testify with certainty that the design . . . would work," the Board stated that it considered stormwater design "to be of utmost importance in the preliminary design of any project." Ultimately, it determined that the stormwater issues were not sufficiently resolved to avoid the public safety concerns created by flooding and that "the better practice would be to require the applicant to provide adequate proof of the sufficiency of the design before the grant of preliminary subdivision approval."

In affirming the Board's decision, the judge observed that most of the neighbors who were interested in the project were concerned about drainage. The record supports that observation. The judge further observed that because plaintiff's final data was not made available to the public prior to the August 9, 2006 hearing, the objectors were not able to examine the calculations and challenge plaintiff's stormwater design. He concluded that it was not unreasonable for the Board to require complete technical information before granting preliminary subdivision approval.

Although the judge noted that "most ordinances" require that information be submitted ten days before a public hearing, he did not cite any specific Alloway Township ordinance that imposed such a time limit. The Board also does not cite a Township ordinance that establishes a ten-day time limit for the submission of supplemental information. We nonetheless conclude that the Board was entitled to deny the application on this basis.

In Field, supra, 190 N.J. Super. at 332, we discussed the distinction between granting approval subject to subsequent agency approvals and granting preliminary approval "subject to later submission of additional information fundamental to an essential element of the development plan." We held that although the former is clearly allowed by the MLUL, the latter is inappropriate. Ibid. We reasoned that "[i]t 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. As examples of elements that have a pervasive impact on the public health and welfare and that "must be resolved at least as to feasibility of specific proposals or solutions before preliminary approval is granted," we cited "drainage, sewage disposal and water supply." Id. at 332-33.

Here, plaintiff's stormwater management system would clearly have a pervasive impact on public health and welfare. Although plaintiff argues that enough information was submitted to at least establish the feasibility of the design, the attendant circumstances indicate that more information was needed. First, as was noted throughout the hearings, Alloway is a "wet" area and many properties surrounding the development site have experienced significant problems with stormwater runoff and flooding. Thus, any system designed to direct and manage runoff is of critical importance. More significantly, one of the drainage basins was to be located in Quinton. Because the ability of Alloway officials to improve, maintain or repair that basin was, at best, questionable, it was not unreasonable for the Board to seek to be absolutely certain that its design was completely satisfactory before approval was granted.

VII.

Finally, plaintiff argues that the court erred in holding that the denial of the application was appropriate because plaintiff failed to file a concurrent subdivision application in Quinton. It asserts that the MLUL does not require an applicant who wishes to develop property in adjoining municipalities to submit joint applications and undergo coordinated review of the aggregated project. Because we do not consider the judge to have based his opinion on this issue, we see no need to address it. We agree with the Board that the judge's comments on the integrated nature of the projects was simply dicta that offered advice to plaintiff of a better way to proceed with its application should plaintiff elect to resubmit its application.

Affirmed.

Resolution 21-2006, memorializing the denial, was adopted by the Board on October 11, 2006. The Board considered plaintiff's application at its meetings on June 14, July 12 and August 9, 2006.

At the July meeting, the Board offered plaintiff the option of adjourning the hearing for a period of thirty days to enable plaintiff to submit the required documents. Although plaintiff agreed to adjourn the meeting to August 9, 2006, it refused to consent to any further extension. Plaintiff declined to waive the application of N.J.S.A. 40:55D-76, which would have resulted in the automatic approval of its application if the Board failed to act upon plaintiff's application by the end of the August 9, 2006 meeting.

Ordinance 75-46.2(A) provides:

All Major Residential Subdivisions and Major Site Plans shall include in their design Agricultural buffers which shall be installed with the purpose of providing a buffer and barrier between the Residential Subdivision or Site Development requiring a Major Site Plan and an adjacent Agricultural use. The Subdivision or Site Plan design shall include this buffer along any shared lot line with an active farm use and shall be designed with the purpose of acting as a separation and buffer between land used as farmland, as defined within this section, and residential uses. The buffer shall not be required for developments which abut certified woodland.

Section (C)(1) of the ordinance, which sets forth design standards, states: "A landscaped buffer of not less than 50 feet in width shall be provided within lots which are adjacent to any shared lot line with an active farm use. This buffer area shall be in addition to the minimum lot size otherwise required for all lots within the development" (emphasis added).

The regulation was promulgated by DEP under the authority of the Water Pollution Control Act, N.J.S.A. 58:10A-1 to -14.6.

N.J.S. A. 40:55D-11 provides the following:

Notices pursuant to section 7.1 and 7.2 of this act shall state the date, time and place of the hearing, the nature of the matters to be considered and, in the case of notices pursuant to subsection 7.1 of this act, an identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the municipal tax assessor's office, and the location and times at which any maps and documents for which approval is sought are available pursuant to subsection 6b.

At oral argument, the parties agreed that if the development would exceed fifty units, prior DEP approval was required, although they disagreed about the Board's factual finding concerning the size of the development.

(continued)

(continued)

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A-0242-07T1

June 9, 2008