MOUNTAIN VALLEY GROUP, LLC v. TOWNSHIP OF BERKELEY HEIGHTS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0701-08T20701-08T2

MOUNTAIN VALLEY GROUP, LLC,

Plaintiff-Appellant,

v.

TOWNSHIP OF BERKELEY HEIGHTS,

a municipal corporation of the

State of New Jersey, and THE

PLANNING BOARD OF THE TOWNSHIP

OF BERKELEY HEIGHTS,

Defendants-Respondents.

_______________________________

 

Argued May 27, 2009 - Decided

Before Judges Wefing, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2714-07.

Barry A. Osmun argued the cause for appellant (Cuyler Burk, P.C., attorneys; Mr. Osmun, of counsel and on the brief; Tanya M. Mascarich, on the briefs).

Michael V. Cresitello, Jr., argued the cause for respondent Township of Berkeley Heights Planning Board (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, P.C., attorneys; Mr. Cresitello, on the brief)

PER CURIAM

Plaintiff Mountain Valley Group, LLC, (MVG) appeals from the August 19, 2008 order of Law Division upholding the denial by defendant Berkeley Township Planning Board (the Board) of MVG's application for subdivision approval regarding a 3.24-acre tract of land located in the Township of Berkeley Heights (the Township). MVG sought to subdivide the property into four lots for the construction of single-family homes. For the reasons that follow, we affirm.

MVG initiated proceedings respecting this property in April 2003, when it attended a concept review hearing before the Board to discuss informally its proposal to subdivide the property and to receive comments from the Board. At that time, the Board noted that the proposed subdivision would be difficult because of "the topography of the property. . . ." The property is "located off . . . Diamond Hill Road at the intersection of Old Colonial Road. . . . The site is wooded[,] . . . [and] heavily sloped. The site elevations . . . go from about 380 [feet] near the street to 490 [feet] . . . at the rear lot line[;] . . . much of the site is . . . in 20 percent or greater slopes."

On or about April 23, 2004, MVG submitted its application and plans for preliminary major subdivision approval. The Board held numerous public hearings on the application between September 1, 2004 and March 21, 2007. The major issues concerned: (1) the adequacy of the proposed access roadway for police, fire and other safety vehicles; (2) the need for blasting because, as plaintiffs' geological expert Frank Getchell reported, the entire tract is "underlain by Jurassic-age Preakness Basalt," which is "igneous rocks of volcanic origin"; and (3) the need for permanent netting "to deal with rock toppling and sliding" and the possible need for a retaining wall in light of "[e]vidence of slippage and parting of rock along joint (fracture) plains," as also noted by Getchell.

In response to some of these concerns, MVG's engineer Kevin G. Page submitted a modified application to the Board on February 8, 2006. Page explained that his revisions relocated the access road to a point "approximately 250 feet to the south[,]" which would reduce the "disturbance, the amount of cut and the amount of blasting for the road."

A fire official of the Berkeley Heights Volunteer Fire Department responded that the revised plan did not address his concerns, specifically that: (1) "[t]here [were] no provisions to turn a vehicle around"; (2) "[t]he 20 foot wide drive w[ould] not leave room for another vehicle to drive thr[ough] if a hose line [wa]s laid in the drive"; and (3) "[i]n the winter, with snow on each side from plowing[,] the above conditions would be greatly increased."

Township Engineer Joseph R. Venezia, submitted a report noting the following issues: (1) MVG needed to address the possible need for a variance, pursuant to N.J.S.A. 40:55D-35, for the common driveway; (2) "a significant amount of land disturbance" would still be required "to provide access to the proposed four (4) lots"; (3) concerns relating to "the provision of adequate police, fire and emergency access via the common private driveway"; and (4) MVG needed to

provide greater detail with regard to the proposed site construction, i.e.,

a) Provide the quantity of rock and soil anticipated to be removed from the entire site.

b) Provide details of the means of stabilizing the cut rock face along the proposed roadway.

c) Provide details of the detention basin grading and means of stabilizing the cut rock face.

d) For retaining walls exceeding four (4) feet in height, . . . submit design calculations including global stability calculations and details of construction.

At a Board hearing on February 15, 2006, MVG addressed the revisions in its subdivision plan. MVG also discussed the creation of a homeowners' association to deal with the maintenance of the roadway in the event that the Township did not assume responsibility for it. The Board raised numerous concerns as to how an association would deal with the costs of maintaining and repairing such a steep road, which would encounter "unusual" problems, such as erosion and/or rockslides. MVG insisted that such an association would need only "insurance, maintenance and capital fund[s]," and that it could "actually function very easily." The Board remained concerned that such an association would need to have a procedure in place to ensure that the common driveway would be properly cared for.

Regarding the issue of emergency vehicle access, MVG presented the testimony of Elizabeth Dolan, a professional engineer specializing in traffic and transportation engineering. Dolan opined that based upon her review of Page's site plans, "there [wa]s sufficient geometry designed into the intersection of the proposed road with Old Colonial [Road] to accommodate up to a . . . wheelbase 40 tractor truck articulated vehicle with a roll length of about 50 to 55 feet." Dolan opined further that the proposed cul-de-sac on the property would provide a "maneuvering area for that size truck," and stated that even if snow were present on the road following plowing, fire vehicles would still be able to navigate the proposed roadway.

David Zimmerman, a licensed professional planner, testified on behalf of MVG with respect to the need for a variance in light of the requirements of N.J.S.A. 40-55D-35. Zimmerman stated:

So if we can assume for the moment that [the] cul-de-sac is a public street -- and I realize that hasn't been solidified yet -- and the common drive which is 20 feet would be comparable for maybe a rural lane . . . , we have four lots which would have access from a private drive and then onto a public street.

He added that "other municipalities . . . do allow that."

The Board insisted that a variance was required because, although the four homes would connect to a common driveway, that path did not provide direct access to a public road, but rather connected "indirectly in a circuitous manner . . . ." The Board clarified that only three of the four lots would require the variance, namely the three properties farthest from the cul-de-sac whose access to the street via the common driveway was more indirect.

On July 17, 2006, Page submitted newly revised site plans to the Board, which prompted the following response by Venezia:

[MVG] has revised the plans by relocating the entrance to the subdivision approximately 250 feet to the south on Old Colonial Road in order to be able to access the site at a higher elevation closer to existing grade. The approximate maximum cut will be twenty-five (25') feet deep, whereas previously, [MVG] proposed a maximum cut of forty-five (45') feet. Since the reconfiguration of the access roadway, the proposed lots have also been redesigned so that each of them will now have a conforming lot width.

Venezia, also expressed concerns generated by Township Ordinance 3.1.11.C.1 and .2, "Steeply Sloping Terrain," which provides that: (1) "on slopes of 25% or greater, no development, re-grading or stripping or vegetation removal shall be permitted unless it can be demonstrated that it is necessary for roadway crossings or utility improvements"; and (2) "grading on slopes greater than 15% shall provide the minimum disruption of view corridors and scenic vistas and shall preserve significant nature topographic features to the greatest extent possible." Venezia noted that MVG needed to address these issues and "provide testimony regarding compliance" with local ordinances, and noted further that "a waiver may be required as the Board sees fit." MVG contended that its compliance with that ordinance was subject to approval by the Township Engineer, and not by the Board.

On June 20, 2007, the Board issued a resolution denying MVG's application for preliminary major site plan approval. In a lengthy decision, the Board set forth ninety-seven findings of fact culled from the public hearings and the documents, and concluded as follows:

1. With respect to the variance sought pursuant to N.J.S.A. 40:55D-35 that requires all lots to abut a public street, [MVG] is proposing that only one (1) of the four (4) proposed lots abut a public street. Access to all four of the lots is proposed to be via a 22' wide common roadway extending from Old Colonial Road to a cul-de-sac and thereafter via a 20' wide shared driveway. [MVG] did not fully establish, as required by N.J.S.A. 40:55D-36[,] that adequate access for firefighting equipment, ambulances and other emergency vehicles necessary for the protection of the health and safety of the future homeowners is provided under the present [a]pplication and proposed development. [MVG] did not, as requested by the Board and the Board Engineer, submit a truck turning radius plan or drawing depicting the final configuration of the access road and Old Colonial Road.

2. With respect to the requested variances and exceptions, the Board concludes that [MVG] did not sustain its burden of proof of establishing that the literal enforcement of one or more provisions of the Ordinance is practicable [sic] or will exact undue hardship because of peculiar conditions pertaining to the land in question[,] as required by N.J.S.A. 40:55D-51. The Board concludes that [MVG]'s assertion that all waivers must be granted if "reasonable under the facts" is not the standard of proof required under the Municipal Land Use Law (MLUL).

3. The Board finds and concludes that [MVG] did not adequately demonstrate that the proposed rock face stabilization catchment measures, specifically the installation of a netting system, could be accomplished without encroachment upon the adjoining property. Specifically, the Board finds the testimony of [MVG]'s engineer and geologist lacking in terms of credibility as he offered no specific testimony in response to the concerns expressed by the Board Engineer regarding the extremely close proximity to the proposed anchoring of the netting system and the adjoining property line, nor the ability of the overburdened soil and weathered bedrock layers to maintain a 1:4 slope.

4. The Board finds and concludes that [MVG] did not offer satisfactory testimony with regard to future maintenance. More specifically, the Board concludes that the creation of a homeowner's association for the purpose of maintaining all storm water management systems, the rock face netting, the catch basin or ditch and the common driveway and Old Colonial Road extension to be over burdensome and unrealistic.

5. The Board finds and concludes that [MVG] did not adequately demonstrate that it could satisfactorily address the concerns of the Board Engineer as set forth in Comment #2.11 on Page 8 of the report dated March 20, 2007. The Board finds and concludes that [MVG] did not demonstrate that a design waiver is warranted pursuant to Section 3.1.11C.1 of the Ordinance requiring that on slopes of 25% or greater, no development, re-grading or stripping for vegetation removal shall be permitted unless it can be demonstrated that it is necessary for roadway crossings or utility improvements. [MVG] proposes re-grading in areas exceeding 25% slopes for the roadway, as well as on portions of Proposed Lot 4.02 and 4.03.

6. The Board finds and concludes that [MVG] did not adequately demonstrate that it can[] satisfactorily address the concerns of the Board Engineer as set forth in Comment #2.12 on page 8 of the report dated March 20, 2007. The Board finds and concludes that [MVG] did not demonstrate that a design waiver is warranted pursuant to Section 3.1.11.C.2 of the Ordinance requiring that si[te] design and grading on slopes greater than 15% shall provide the minimum disruption of new corridors and scenic vistas and shall preserve significant natural topographic features to the greatest extent possible. [MVG] requires extensive blasting and cut rock surfaces of up to approximately 35' that will adversely disrupt the significant natural topographic features on the Property.

7. The Board finds and concludes that the application, when taken as a whole, including the variance relief and significant design waivers required, including but [not] limited to the design of the Old Colonial Road extension and creation of a private common driveway, represent a substantial deviation from the subdivision standards of the Ordinance. The Board concludes that [MVG], through its experts, was unable to satisfy the legitimate concerns of the Board pertaining to critical elements of the proposed major subdivision, including access, grading and drainage.

On August 3, 2007, MVG filed a complaint in lieu of prerogative writs against the Board and the Township, seeking reversal of the denial of its application. The trial judge heard oral argument on July 1, 2008, and thereafter issued a written opinion on August 11, 2008, affirming the Board's decision.

After reviewing the evidence presented to the Board, and noting the limited scope of review of actions by a local planning board, the judge held:

[T]his [c]ourt cannot conclude that the Board acted in an arbitrary or capricious manner. The Board was not unreasonable in reaching the conclusion that [MVG] failed to fully establish that the proposed lots would be adequately accessible to emergency vehicles, especially fire engines. Plaintiff cites to Allen v. Hopewell Township Zoning Bd. of Adjustment, 227 N.J. Super. 574 (App. Div. 1988), for support. In Allen, the court found that a deed easement which provided access from a road to the subject property was sufficient to provide access for emergency vehicles. In reaching this conclusion the Appellate Division stated:

Arguably, it might be better land use regulation not to permit flag lots or to require that the easement be paved . . . to better accommodate emergency vehicles. However, the proper scope of judicial review is not to suggest a decision that may be better than the one made by the board of adjustment, but to determine whether the board could reasonably have reached this decision.

Id. at 581. In the instant case, the Board expressed consistent concern about access for emergency vehicles. Such concerns are of paramount importance for any municipal planning board. The Board is not obliged to accept all testimony word for word, and it found the testimony of Ms. Dolan lacking in credibility. Ms. Dolan never specifically investigated the Township's fire engines. It was only in a letter to the Board submitted before the final hearing in which Ms. Dolan informed the Board that she had spoken to the Fire Marshal and opined that the proposed access was adequate. In light of these facts, the Board was not unreasonable in determining that [MVG] had not satisfied its burden. . . .

The Board was also not arbitrary and capricious in voicing concerns with regards to the netting system and the maintenance of the proposed slope. Mr. Getchall admitted that he had never constructed a system on property as steep as that proposed by [MVG]. Furthermore, Mr. Getchell was not able to address many of the Board's questions with absolute certainty as many of the determinations involving cutting, blasting, and the netting system would have to be answered on site as the proposal was executed.

With regards to the potential requirement for an easement to properly install the netting system, [MVG] argues that its proposal should have been granted conditional approval subject to production of such an easement. Plaintiff relies on W.L. Goodfellows and Co. of Turnersville v. Washington Township Planning Bd., 345 N.J. Super. 109 (App. Div. 2001). In that case, the proposed development of a drainage system required an easement. The Appellate Division found "that sufficient information was presented by plaintiff concerning the specificity of its drainage plan, including its feasibility and adequacy, to require the Board to grant preliminary site plan approval condition[ed] upon production of an easement that complied with the drainage plan under review." Id. at 117. In W.L. Goodfellows, the lack of the drainage easement was the sole issue for the denial of the application. In the instant matter, had the Board denied [MVG]'s application on the sole basis of a failure to obtain an easement[;] this would entitle [MVG] to a reversal of the Board's decision. However, the instant case is dissimilar to W.L. Goodfellows in that the Board had several concerns and more than one basis for its denial. The Board was not just concerned about the easement necessary for the proper installation of the netting system. The Board also had apprehensions as to the future maintenance of the netting system being contingent upon the prospective residents accepting the responsibility via a homeowner's association.

Ultimately, the Board had too many concerns that it determined were not adequately addressed by [MVG]. There were issues pertaining to access for emergency vehicles, the proposal involved [a] significant amount of blasting and cutting on a steep slope, there would be substantial alteration of the property's natural terrain, and the maintenance of the netting system and detention basin would be left to the prospective formation of a homeowner's association. In its resolution, the Board determined that, under the totality of the circumstances, [MVG] had not satisfied all of the Board's concerns. This [c]ourt cannot determine that the Board acted arbitrarily and capriciously by denying [MVG]'s application. The decision of the Board is AFFIRMED.

On appeal, MVG argues that the trial judge erred in affirming the Board's decision because he "failed to consider the determination in light of applicable law[,]" and "failed to consider the substantial evidence presented by [MVG] that the application met the requirements for the exceptions and variance sought." Having reviewed these contentions in light of the record and the controlling legal principles, we conclude that they are without merit. We affirm substantially for the reasons stated by Judge Ross R. Anzaldi in his written decision of August 11, 2008. We add only the following comments.

"[T]he law presumes that . . . municipal governing bodies will act fairly and with proper motives and for valid reasons." Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965). "[F]actual determinations of the planning board are presumed to be valid and the exercise of its discretionary authority based on such determinations will not be overturned unless arbitrary, capricious or unreasonable." Fallone Properties, L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 560 (App. Div. 2004). "The purpose of judicial review [in the Law Division] is for the court to determine whether or not the board acted within the statutory guidelines and properly exercised its discretion." Id. at 561.

Our scope of review in these matters mirrors that of the trial court. Bressman v. Gash, 131 N.J. 517, 529 (1993). We must determine only "whether the board's decision was arbitrary, unreasonable or capricious." New York SMSA, L.P. v. Bd. of Adj. of Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). "[W]e will give substantial deference to findings of fact" that are "grounded in evidence in the record[,]" Fallone Properties, supra, 369 N.J. Super. at 562, and we "cannot substitute an independent judgment for that of the boards in areas of factual dispute[s]." Kramer, supra, 45 N.J. at 296. Particularly when, as in this case, variances are at issue, "courts must give greater deference to a variance denial than to a grant." New York SMSA, L.P., supra, 370 N.J. Super. at 331.

MVG acknowledges these legal standards but contends that the trial judge misapplied the law governing municipal review of a subdivision proposal. MVG also argues that the judge failed to address whether relief from N.J.S.A. 40:55D-35 was appropriate through a so-called "Section 36" variance.

Regarding the first contention, plaintiff maintains that "a denial of a site plan or subdivision application cannot be justified by reference to the general intent of the [Municipal Land Use Law, N.J.S.A. 40:55D-1 to -129] MLUL[,]" citing Pizzo Mantin Group v. Twp. of Randolph, 137 N.J. 216 (1994). There, the Court held that "a municipality must exercise its zoning and subdivision powers by enacting ordinances, . . . [and] may not exercise such powers based directly on the general statutory purposes of the MLUL." Id. at 229.

MVG's reliance upon Pizzo Mantin is misplaced, however, because the record here reflects that the Board's denial of its application was based upon numerous specific concerns established over the course of three and a half years of public hearings and the submission of extensive documentation. In light of those concerns, we reject MVG's contention that the Board arbitrarily denied its application pursuant to the "general statutory purposes of the MLUL."

MVG next argues that the Board erred in denying a "Section 36 variance" from the requirements of N.J.S.A. 40:55D-35, which provides:

No permit for the erection of any building or structure shall be issued unless the lot abuts a street giving access to such proposed building or structure. Such street . . . shall have been certified to be suitably improved to the satisfaction of the governing body . . . in accordance with standards and specifications for road improvements approved by the governing body, as adequate in respect to the public health, safety and general welfare of the special circumstance of the particular street . . . .

Pursuant to N.J.S.A. 40:55D-36, a board of adjustment is empowered to grant variances from N.J.S.A. 40:55D-35 when "the enforcement of [that statute] would entail practical difficulty or unnecessary hardship, or where the circumstances of the case do not require the building or structure to be related to a street . . . ." Such a variance maybe granted on the condition that it "will provide adequate access for firefighting equipment, ambulances and other emergency vehicles necessary for the protection of health and safety . . . ." Ibid.

Here, the Board concluded that N.J.S.A. 40:55D-35 could not be satisfied because only one of the four plots would have direct access to a public road, thereby leaving the remaining three plots with such access only through a common driveway. Therefore, the Board declined to grant a variance pursuant to N.J.S.A. 40:55D-36.

In order to obtain such a variance, MVG bore the burden of establishing that "adequate access for firefighting equipment, ambulances and other emergency vehicles" would be available on the shared driveway. Ibid. MVG failed to meet this burden, as the Board remained unconvinced by Dolan's testimony that the purported forty-foot turning radius was sufficient for fire vehicles, particularly in the event of a snowfall that would require plowing of that road. This concern was supported by the input from the Township fire official.

The trial judge addressed this issue in his decision, noting that "the Board expressed consistent concern about access for emergency vehicles. Such concerns are of paramount importance for any municipal planning board."

MVG next assails each of the Board's seven "conclusions" leading to its denial of the application. We are satisfied that each of these contentions is without merit. Suffice it say, the Board's conclusions reflect its legitimate concerns stemming from the unique topography of the property, which would have required numerous extraordinary measures in order to achieve a subdivision that could support the construction of four homes. The property is steeply sloped and underlain with basalt igneous rock. The former condition raised concerns about restrictions imposed by Municipal Ordinance 3.11.C.1 and .2, "Steeply Sloping Terrain." The latter condition caused the Board concern about "the proposed rock face stabilization catchment measures, specifically the installation of a netting system," which the Board doubted "could be accomplished without encroachment upon adjoining property."

Moreover, the Board found the testimony of MVG's engineer and geologist lacking in credibility. MVG offered no specific testimony in response to the concerns expressed by the Board Engineer regarding the extremely close proximity of the proposed anchoring of the netting system to the adjoining property line.

We find no cause to disturb the Board's decision or the trial judge's affirmance thereof. We are particularly deferential to a municipal board's actions in recognition of "the board's knowledge of local circumstances . . . ." Fallone Properties, supra, 369 N.J. Super. at 562.

In these highly controversial and oftentimes debatable zoning cases the courts must recognize that local officials "who are thoroughly familiar with their community's characteristics and interests and are the proper representatives of its people are undoubtedly the best equipped to pass initially on such applications . . . ."

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. . . . 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 agenc[y] involved.

[Kramer, supra, 45 N.J. at 296 (citations omitted).]

We find no "clear abuse of discretion" by the Board here; "[n]or do we discern in [the trial judge's] treatment of the matter any ground for the disturbance of his decision and judgment." Id. at 297.

Affirmed.

 

N.J.S.A. 40:55D-35 requires that "[n]o permit for the erection of any building or structure . . . be issued unless the lot abuts a street giving access to such proposed building or structure."

(continued)

(continued)

19

A-0701-08T2

August 13, 2009