SLOO INVESTORS, LLC v. PLANNING BOARD OF THE BOROUGH OF TINTON FALLS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2782-08T12782-08T1

SLOO INVESTORS, LLC,

Plaintiff-Appellant,

v.

PLANNING BOARD OF THE BOROUGH

OF TINTON FALLS, BOROUGH OF

TINTON FALLS and BOROUGH

COUNCIL OF TINTON FALLS,

Defendants-Respondents.

 

Argued March 15, 2010 - Decided

Before Judges Lisa, Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4236-06.

Lawrence J. Sharon argued the cause for appellant (Lebensfeld Borker Sussman & Sharon, attorneys; Mr. Sharon, of counsel and on the brief; David M. Arroyo, on the brief).

Dennis A. Collins argued the cause for respondent Planning Board of the Borough of Tinton Falls (Collins, Vella & Casello, attorneys; Mr. Collins, of counsel and on the brief; Matthew K. Kalwinsky, on the brief).

James E. Berube, Jr., attorney for respondents Borough of Tinton Falls and Borough Council of Tinton Falls, joins in the brief of respondent Planning Board of the Borough of Tinton Falls.

PER CURIAM

Plaintiff Sloo Investors, Inc. appeals a December 22, 2008 order affirming the denial by defendant Planning Board of the Borough of Tinton Falls (the Board) of plaintiff's request for a waiver from a flood plain ordinance. The Borough and Council of Tinton Falls are also named defendants. For the reasons that follow, we affirm.

Plaintiff's application for a waiver of the flood plain ordinance, Section 40-44(A) of the revised general ordinances of the Borough of Tinton Falls, was part of its application to develop Lot 54.01, which consisted of approximately twenty-one wooded acres. In order to develop the property into eleven residential lots, plaintiff's plan required an elevated access road from an existing "stub street" over a flood plain to the developable portions of the land. On September 7, 2005, the Board determined that as part of its development approvals, plaintiff had to establish the basis for a waiver of the restriction against building on flood plains. Plaintiff was granted thirty days in which to "restudy the issue and come back before" the Board on the issue. On December 28, the Board denied plaintiff's waiver request, which effectively denied plaintiff major subdivision approval for the property. A resolution embodying the Board's decision was finally adopted on August 9, 2006. On September 18, 2006, plaintiff filed a complaint in lieu of prerogative writs seeking to reverse the Board's order, as well as compensatory and punitive damages.

On June 28, 2007, the trial court granted plaintiff's motion for a remand to the Board based on plaintiff's assertion that the Board in 1988 had approved a subdivision plan for the property which included a road through the flood plain. Thereafter plaintiff filed an amended complaint, alleging that the Board's restriction on the use of the property violated plaintiff's constitutional rights because it was an "impermissible taking of the property for public use and/or improper private use without just compensation."

A remand hearing was conducted by the Board on January 9, 2008. The Board determined that the 1988 resolution which granted preliminary approval simply did not indicate if the Board had actually considered the necessity of a waiver at all, and if so, what action was taken as a result. Furthermore, the Board concluded that the 1988 plan differed in significant respects from the current plan in terms of the manner in which a roadway would be constructed over the flood plain. The Board's decision to deny plaintiff's waiver application for the second time was memorialized on March 12, 2008. The trial court affirmed the Board's denial of a waiver after the remand proceeding on December 22, 2008.

Plaintiff is the contract purchaser of the property. Approvals for the development plans are a condition of the contract. The twenty-one-acre lot is bordered "by wetlands to the north, single-family homes and an assisted living facility to the south, single[-]family homes to the east, and the Garden State Parkway to the west." It is situated in an R-2 zone, meaning that residential development is permitted on the lot.

There are two tributaries on the property, the first of which "comes in the north" and "flows towards the northwest." It combines with a second stream coming in from the north and then "fall[s] off toward the south."

Plaintiff's development plan proposed the construction of an elevated access road with culverts through the flood plains in order to connect the stub road to the lots. The New Jersey Department of Environmental Protection (DEP) issued one or more permits to plaintiff regarding stream encroachment and crossing the wetlands. Plaintiff also had to obtain a waiver from the Borough, however, in order to construct a structure on a 100-year flood plain. According to Tinton Falls ordinance 40-44, the 100-year flood plain is determined by using the maps of the Federal Emergency Management Agency and the NJDEP as a base line and then conducting on-site evaluations. "On streams not identified by [these] maps, the [100-year] flood plain shall be as delineated by a developer's engineer and approved by the Borough Engineer and the State of New Jersey Division of Water Resources."

Plaintiff proposed a fifty-foot-wide roadway, approximately 1300 feet long, that was designed to run "in a roughly northwesterly direction from the existing stub across the flood plain." Sheet piles would be driven into the sides of this roadway, and fill and other materials placed so as to reach, at the highest point, eighteen feet above the bottom of the stream. Two culverts were required to allow water to pass through the wall beneath the road bed, thereby altering the present flow of the water in the flood plain. As the Board characterized it, the result would be akin to "the Great Wall of China."

Plaintiff's position is that because no testimony was offered to rebut its expert's proffered opinion that there were no alternatives to reach the developable portion of the land, none existed, rendering the property inutile when the Board denied plaintiff's application for a waiver. The Board disputes this, asserting that plaintiff's experts in fact did not deny that alternative roadways could be developed, although the result would be fewer buildable lots. The trial court found that the Board denied plaintiff's waiver application in part because it concluded that alternative means were available to develop the site that created less of a disturbance to the flood plain.

A member of the public testified during the hearing that his property was affected by any disturbances on that land, specifically, that sink holes would appear on his property and that of an adjoining neighbor. The Board heard testimony that the proposal would indeed alter the flow of the flood plain, cause a rise in the water levels during a 100-year storm, and essentially dam the water in an area of the Borough that had a history of water problems. The roadway, as designed, would require maximization of the DEP permit for the disturbance of the flood plain crossing. The maximum disturbance permitted by the DEP was .25 acres, or 10,890 square feet. According to one of plaintiff's experts, the construction of the roadway would require a disturbance of .2498 acres or 10,881 square feet. Any disturbance outside of the sheet pilings plaintiff proposed installing in the flood plain would violate the DEP permit. The culverts would each contain one of the two streams that cut through the eastern portion of the property.

Section 40-44(A) of the Tinton Falls zoning code states:

Flood plains shall be preserved and not built upon. Where a property containing a flood plain is proposed for development or other improvements, no proposed structures or fill shall be located within the one-hundred-year flood plain and none of the minimum yard requirements for the principal building shall be in the one-hundred-year flood plain.

Section 40-44E states:

Permitted uses in a flood hazard area shall be as follows, provided they are permitted uses in the district in which the flood hazard is located and provided that none of these uses adversely affect the hydraulic capacity of the one-hundred-year flood plain and that the water surface elevation of the one-hundred-year flood plain is not increased. No septic systems shall be in the one-hundred-year flood plain.

(1) Agriculture: general farming, pasture, grazing, outdoor plant nurseries, horticulture, viticulture, truck farming, forestry, sod farming and wild crop harvesting.

(2) Industrial/commercial: yards, peak loading areas and peak parking areas.

(3) Recreation: golf courses, improved courts and playing fields, swimming areas, boat launching ramps, picnic and camping, and open space uses such as hiking trails.

(4) Residential: lawns, gardens, overflow parking areas and play areas.

(5) Public: lawns, overflow parking areas, play and recreation areas.

Plaintiff's expert testified that the road would be approximately twelve feet higher than the estimated water level of a 100-year storm. Nonetheless, he was not able to provide any information about the intensity of a storm that would render the proposed homes inaccessible.

Plaintiff's planner and engineer testified that without the waiver, the property would become "useless"; however, the engineer seemed to imply that this was not the case during later testimony. The Board was concerned about its responsibility to maintain the road once constructed, the fact that the roadway would be in an area difficult to reach, potentially isolating homeowners during a storm, in addition to their concerns about disturbance to the wetlands, the effect on adjoining property owners' land conditions, and the appearance of the road.

Plaintiff first asserts that the Board's denial of the waiver was "arbitrary and capricious and not based on substantial evidence." Plaintiff further contends that it met its burden to qualify for a waiver, that strict enforcement of the ordinance would make the property inutile, and that the waiver request was reasonable given the engineering testimony presented to the Board. The Board contends that, in light of the appropriate deferential standard of review, the trial court properly affirmed its decision because it was based on substantial credible evidence in the record. Moreover, the Board maintains that it was plaintiff's burden to demonstrate that strict enforcement of the ordinance would result in undue hardship, and it simply failed to do so.

We accord substantial deference to the decision of a local planning board, as did the trial court. A board's determination will only be reversed if "'it is arbitrary, capricious or unreasonable.'" Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405 N.J. Super. 189, 196 (App. Div. 2009) (quoting Kramer v. Sea Girt Bd. of Adjustment, 45 N.J. 268, 296-97 (1965)). A decision will not be considered arbitrary if it is supported by "adequate evidence" in the record. Burbridge v. Governing Body of Mine Hill, 117 N.J. 376, 385 (1990). This deference arises from the fact that local officials are better equipped to determine how to serve the needs of their community; it is not our role to substitute our judgment for that of the Board. Scully-Bozarth Post #1817 of Veterans of Foreign Wars of the U.S. v. Planning Bd. of Burlington, 362 N.J. Super. 296, 314 (App. Div. 2003).

Site plan review is necessary in order to assure compliance with the relevant provisions of both site plan and land use ordinances. Shim v. Wash. Twp. Planning Bd., 298 N.J. Super. 395, 411 (App. Div. 1997). A board has limited power to reject site plans for proposed developments because it is obliged to grant preliminary approvals for proposed developments that comply with local ordinances. Meridian Quality Care, Inc. v. Bd. of Adjustment of Wall, 355 N.J. Super. 328, 344 (App. Div. 2002). According to N.J.S.A. 40:55D-46b, "[t]he planning board shall, if the proposed subdivision complies with the ordinance and this act, grant preliminary approval to the subdivision." See also, Pizzo Mantin Group v. Twp. of Randolph, 137 N.J. 216, 226 (1994). In this case, the proposed development clearly did not comply with the local flood-plain ordinance mandating that "[f]lood plains shall be preserved and not built upon."

Zoning and site plan ordinances may designate and regulate the areas subject to flooding. The DEP has the authority to regulate land use within floodways and to issue "waivers where necessary to alleviate hardship." Terner v. Spyco, Inc., 226 N.J. Super. 532, 544 (App. Div. 1988) (citing N.J.S.A. 58:16A-55). The criteria for the determination of whether such hardship exists "in many respects tracks the statutory subsection c(1) hardship criteria." Id. at 544-45. Municipalities are also vested with the authority to regulate "land designated as subject to flooding"; the site plan ordinances promulgated must aim "to avoid danger to life or property." N.J.S.A. 40:55D-38b(6). A planning board may waive the requirements of the local site plan ordinance in cases when strict adherence "is impracticable or will exact undue hardship because of peculiar conditions pertaining to the land in question." N.J.S.A. 40:55D-51b. These waivers are to be reasonable and for "modest changes in use." Garofalo v. Burlington, 212 N.J. Super. 458, 464 (App. Div. 1985).

A board retains the discretion to grant or deny an application for a variance or waiver. N.J.S.A. 40:55D-51b. In other words, as the trial court noted, "the Board may relax the requirements of Tinton Falls Ordinance Section 40-44(a), but is under no requirement to do so."

We agree with the trial court that the Board was justified in its decision to deny the waiver because the roadway would create substantial safety issues due to the height and length of the proposed structure over the flood plain, the fact it would be the only connector roadway to the proposed development, and that the proposed roadway would create the maximum disturbance possible under DEP regulations. The planner who testified as one of plaintiff's experts indicated that no other way was available and that denial of the waiver would make the land inutile, and the engineer noted that "the developable portions of the property" were only accessible by crossing the wetlands, but he was unable to definitively rule out alternate development plans that would have less of an impact on the flood plain and wetlands. In both resolutions adopted by the Board, it expressed its concern that the proposed "land bridge" would not provide a benefit other than allowing the maximum development of the lot. The Board had no information regarding the conditions that would make the road impassible or what conditions, if any, required special maintenance that the municipality would have to assume because of the complexity of the design. It had no information as to how plaintiff proposed to construct the road without violating its DEP permit given the width of the road and the narrowness of the permit. After hearing the testimony of the experts and comments from the public, the Board concluded that the proposed disturbance and jeopardy to the flood plain was not warranted in light of the possibility of an alternative route which, although it would yield fewer lots, would not make the property inutile.

Plaintiff states that no expert testimony was offered to rebut expert testimony that the land was otherwise not developable. The mere fact that its expert did not testify as to a negative does not discount the possibility of an alternative site proposal. Essentially, the engineer said only that he did not know if the property was otherwise developable if the 1300-foot elevated roadway was not constructed. The record does not warrant reversal of the Board's decision that no undue hardship would be caused by the denial of the waiver application.

It was plaintiff who bore the burden of showing an undue hardship; however, when the question was put directly to the engineering expert, he was either unable or unwilling to testify that the property would be rendered inutile if the waiver application was denied. The Board's decision in this respect was reasonable as well, as there was no basis to conclude the property would become inutile based on the statements of the engineer. The potential hazards to prospective buyers of homes on the land and the responsibilities thereby imposed on the municipality were an appropriate consideration the Board took into account. Thus, the Board's decision regarding the unreasonable nature of the waiver request was neither arbitrary nor capricious and was based on a commonsensical interpretation and understanding of the proofs presented to it. It was based on substantial evidence contained in the record.

Plaintiff makes two additional points that in our view do not warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). First, plaintiff contends that the trial court erred because it failed to evaluate the Board's resolution in light of the purpose behind the ordinance as required under N.J.S.A. 40:55D-51(b). It is clear from the statement of reasons outlined in the resolutions that the Board did consider the purpose and intent of the ordinance and that it decided to exercise its discretion and deny the waiver because to have granted it would have defeated the purpose and intent of the ordinance. Similarly, the trial court discussed the Board's conclusion that the municipality would be left with a potentially hazardous condition for its citizens if the waiver was granted. This was sufficient on the part of both the Board and the trial court.

We only briefly touch upon plaintiff's final point, which is that the court erred because it did not "search the record" to determine whether the Board's decision was supported by substantial evidence. We simply do not consider that point to be justified either in terms of the law or fact. A trial court's sole inquiry in reviewing the decision of a planning board is to determine whether the board abused its discretion. Ocean County Cellular Tel. v. Twp. of Lakewood Bd. of Adjustment, 352 N.J. Super. 514, 521-22 (App. Div. 2002) (citation omitted). The trial court's opinion does not lead us to conclude that the court merely rubber stamped the Board's decision in some inappropriate fashion. It considered not only the record but the arguments made by counsel and the written submissions. The judge, in our opinion, appropriately found that the Board's decision was based on substantial evidence in the record. The trial court reiterated the Board's conclusions and discussed the factual support for them. This is sufficient to uphold its determination.

 
Affirmed.

Although plaintiff's development application form states that the size of the lot is 21.17 acres, the original and amended complaints assert the size of the lot is 20.17 acres.

(continued)

(continued)

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A-2782-08T1

June 18, 2010