MATTHEW CARFARO, et al. v. WASHINGTON TOWNSHIP PLANNING BOARD, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1236-04T11236-04T1

A-1595-04T1

FRANK SCUDESE and MARGARET SCUDESE,

Plaintiffs-Appellants,

v.

WASHINGTON TOWNSHIP PLANNING BOARD,

WASHINGTON TOWNSHIP and T.M. GROUP, INC.,

Respondents-Respondents.

______________

FRANK SCUDESE and MARGARET SCUDESE,

Plaintiffs-Appellants,

v.

WASHINGTON TOWNSHIP PLANNING BOARD,

WASHINGTON TOWNSHIP and T.M. GROUP, INC.,

Respondents-Respondents.

_________________________________________

A-0913-05T1

MATTHEW CARFARO, FRANK AND SHARON CARFARO,

Plaintiffs-Appellants,

v.

WASHINGTON TOWNSHIP PLANNING BOARD,

WASHINGTON TOWNSHIP and T.M. GROUP, INC.,

Respondents-Respondents.

__________________________________________

 

Argued: February 6, 2007 - Decided:

Before Judges Kestin, Graves and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Morris County, L-115-02, L-1341-01, L-97-02, L-892-04.

John J. Lamb argued the cause for appellants (Beattie Padovano, attorneys; Mr. Lamb, of counsel and, with Vanessa R. Elliott in 0913-05T1, on the brief).

Tiena M. Cofoni argued the cause for respondent Washington Township Planning Board in A-1236-04 and A-1595-04 (Edward J. Buzak, attorney; Ms. Cofoni and Edward J. Buzak, on the brief).

Fred Semrau argued the cause for respondents Washington Township Committee and Washington Township Planning Board in A-0913-05 (Dorsey & Semrau, attorneys; Mr. Semrau and Dominic P. DiYanni, on the brief).

Karen A. Ermel argued the cause for respondent T.M. Group, Inc.

PER CURIAM

These appeals from judgments in actions in lieu of prerogative writs present related questions. We consolidate all three appeals for the purposes of this opinion.

Plaintiffs, Frank and Margaret Scudese, as neighbors and objectors, challenged the actions of the Washington Township Planning Board in granting preliminary and final subdivision approval to TM Group, the developer of a 71.84-acre tract, for the construction of twelve homes; challenged the validity of a Township ordinance governing cluster and lot-averaging subdivisions, under the authority of which the subdivision approvals had been granted; and asserted a claim to an implied easement over the subject property for the annual erection of a snow fence. The trial court affirmed the grants of preliminary and final subdivision approval, and dismissed the challenge to the ordinance and the easement claim.

The many arguments advanced by plaintiffs, combined as appropriate, may be presented as asserting trial court error in:

CERTIFYING AS A FINAL JUDGMENT ITS MARCH 28, 2004 ORDER, IN WHICH IT AFFIRMED THE PLANNING BOARD'S GRANT OF PRELIMINARY SUBDIVISION APPROVAL;

AFFIRMING THE PLANNING BOARD'S GRANT OF FINAL SUBDIVISION APPROVAL, BECAUSE THE BOARD DID NOT HAVE JURISDICTION OVER THE APPLICATION DUE TO THE PENDING LAW DIVISION CHALLENGE TO THE GRANT OF PRELIMINARY SUBDIVISION APPROVAL;

AFFIRMING THE PLANNING BOARD'S GRANTS OF PRELIMINARY AND FINAL SUBDIVISION APPROVAL, BECAUSE THE BOARD HAD NOT APPROPRIATELY RESOLVED STORMWATER MANAGEMENT ISSUES;

AFFIRMING THE PLANNING BOARD'S GRANTS OF PRELIMINARY AND FINAL SUBDIVISION APPROVAL, BECAUSE THE SUBDIVISION PLAN WAS INCONSISTENT WITH THE APPLICABLE LOCAL ORDINANCE, OR BECAUSE AN ALTERNATIVE SUBDIVISION PLAN EXISTED THAT WAS MORE CONSISTENT WITH THE ORDINANCE;

AFFIRMING THE PLANNING BOARD'S GRANTS OF PRELIMINARY AND FINAL SUBDIVISION APPROVAL, BECAUSE THE PROPOSED CONVENTIONAL SUBDIVISION PLAN, ON WHICH THE APPROVED LOT AVERAGING SUBDIVISION PLAN WAS BASED, WAS DEFECTIVE AND INCONSISTENT WITH THE APPLICABLE LOCAL ORDINANCE;

AFFIRMING THE PLANNING BOARD'S GRANTS OF PRELIMINARY AND FINAL SUBDIVISION APPROVAL, BECAUSE THE BOARD DID NOT ADEQUATELY ADDRESS WATER QUALITY/SEPTIC ISSUES;

AFFIRMING THE PLANNING BOARD'S GRANTS OF PRELIMINARY AND FINAL SUBDIVISION APPROVAL, BECAUSE THE BOARD REFUSED TO CONSIDER RELEVANT TESTIMONY;

GRANTING SUMMARY JUDGMENT DISMISSING PLAINTIFFS' CHALLENGE TO WASHINGTON TOWNSHIP'S CLUSTER ORDINANCE; and

GRANTING SUMMARY JUDGMENT DISMISSING PLAINTIFFS' CLAIM OF AN EASEMENT OVER TM GROUP'S PROPERTY.

We put aside, for present purposes, the sense that many of the issues raised are moot by reason of the repeal of the once useful ordinance and the passage of time with substantial completion of the development. Also, we reject TM Group's argument that certain issues raised on appeal are fatally flawed because they were not properly isolated in the notice of appeal. That argument should have been raised in a motion to strike plaintiffs' brief, not in the answering brief. At bottom, there has been no prejudice to TM Group; it has always known what the bases of appeal were.

After analyzing the extensive record, we are in substantial agreement with the reasons for decision given by Judge Dumont on the issues he addressed, comprehensively and reflectively, in his various oral opinions on March 13, May 28, and September 7, 2004, and on February 18 and September 9, 2005. We are satisfied that nothing the Planning Board did regarding subdivision approval, including the ways in which it dealt with water quality issues and environmental impacts because of putative septic system limitations and other concerns, was so patently flawed as to amount to arbitrary, capricious, or unreasonable action. The Planning Board's approval grants were well supported by the record before that body. There has been no adequate showing that the Board's actions derogated statewide water quality management rules or any other standards within the purview of the Department of Environmental Protection.

 
Substantially for the reasons stated by the trial court, the judgments appealed from are affirmed.

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A-1236-04T1

August 6, 2007