On appeal from Superior Court, Law Division, Monmouth County.
Deighan and Landau. The opinion of the court was delivered by Landau, J.A.D.
Plaintiffs Emanuel Terner, John Doe and Richard Roe (collectively Terner) appeal from the trial judge's dismissal of their complaint in lieu of prerogative writ wherein they challenge defendant Planning Board of the Township of Ocean's preliminary approval of an application for a major subdivision by defendant Spyco, Inc. (Spyco). The critical issue on appeal is whether the Planning Board correctly interpreted an Ocean Township Zoning Ordinance prohibiting erection of buildings or structures within a designated 100 year flood plain.
In October 1985, Spyco applied to the Planning Board for preliminary major subdivision approval to subdivide property designated as Block 218.1, Lots 2B, 2C, 2D and 2E on the Tax
Map of the Township of Ocean. The site has an area of 35.26 acres and is divided between two zoning districts with 14.67 acres located in 0-2 Office, Research, Professional Zone and the remaining 20.59 acres located in R-3, Medium Density Single Family Residential Zone. Spyco proposed to subdivide the property with the 14.67 acres located in 0-2 zone constituting one lot. Initially, Spyco sought subdivision of the remaining 20.59 acres into more than 32 lots which would have required a variance from the lot dimensional requirements of the R-3 zone, but it modified its proposal to constitute only 32 lots at the request of the Board in order to conform with the "cluster design" requirements of the R-3 zone.
Hearings on Spyco's application were conducted by the Planning Board commencing on November 11, 1985 and concluding on June 23, 1986. Terner, who owns land situated within 200 feet of the subject premises, and other community persons appeared at the hearings to object to Spyco's application based, among other things, upon drainage and environmental concerns and what Terner alleged to be construction of residences within a designated 100 year flood plain in violation of § 21-9.28 of the Ocean Township Zoning Ordinance. This ordinance provides that:
Flood Plains. No building or structure shall be erected within the designated 100 year flood plain as defined on the Township's Insurance Rate Map, prepared by the U.S. Department of Housing and Urban Development, Federal Insurance Administration, dated October 1977, as amended, or as defined in the Township of Ocean Drainage Master Plan, prepared by Schoor Engineering, Inc., dated December 1976, copies of which are on file in the Office of the Township Engineer at the municipal building. In the event of a conflict between the two flood plain delineations, the more restrictive will apply.
After a very comprehensive review entailing 12 hearings, 11 of which were public, which included testimony and reports by at least 12 experts, the Planning Board on June 23, 1986 voted to grant Spyco preliminary major subdivision approval subject to certain conditions including "[r]eceipt of all required governmental approvals, if any." The Board found that no housing units were to be constructed within a 100 year flood plain or in
the alternative, that even if some residences were to be built within a 100 year flood plain, that:
adequate proofs have been presented to satisfy this Board that the extraordinary condition of this particular piece of property justifies the grant of this variance and that also the benefits of granting this variance greatly outweigh any minor detriment which might result from such grant. In addition, the Board specifically finds that there will be no adverse impact upon the zone plan . . . If anything, the existing conditions would be improved.
Terner initiated an action in lieu of prerogative writ and the trial judge affirmed the Planning Board decision saying that the proposed construction was not within the "designated 100 year flood plain as defined by the Township's Insurance Rate Map." The trial judge did not reach the issue of whether, if required, the Planning Board's grant of a variance was justified but observed only that the Planning Board "properly found there was no need for a variance."
Terner raises four points on appeal:
I. DEFENDANT OCEAN TOWNSHIP PLANNING BOARD MAY NOT CIRCUMVENT THE PROVISIONS OF THE OCEAN TOWNSHIP ZONING ORDINANCE.
II. THE UNCONTROVERTED FACTS OF THIS CASE REQUIRE THE APPELLATE DIVISION TO REVERSE THE TRIAL COURT.
III. DEFENDANT PLANNING BOARD, LACKED JURISDICTION TO HEAR DEFENDANT SPYCO'S SUBDIVISION APPLICATION.
IV. PLAINTIFF WAS PRECLUDED FROM PRESENTING TESTIMONY REGARDING ENVIRONMENTAL PROBLEMS AND CONCERNS TO THE DETRIMENT OF THE CITIZENRY AND SURROUNDING AREA BY THE DEFENDANT PLANNING BOARD.
We have considered carefully the briefs and arguments of counsel as well as the Planning Board's resolution and trial judge's written opinion and we conclude that Spyco's subdivision proposal clearly contemplates that at least some residences will be constructed in what the Ocean Township Zoning Ordinance, § 21-9.28 (the Ordinance) has ...