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Morris County Fair Housing Council v. Boonton Township

Decided: July 29, 1988.

MORRIS COUNTY FAIR HOUSING COUNCIL, MORRIS COUNTY BRANCH OF THE NATIONAL ASSOCIATION FOR ADVANCEMENT OF COLORED PEOPLE AND ALFRED A. SLOCUM, PUBLIC ADVOCATE OF THE STATE OF NEW JERSEY, PLAINTIFFS, AND JOHN AND SALVATORE CORTESE, PLAINTIFFS-INTERVENORS,
v.
BOONTON TOWNSHIP, CHATHAM TOWNSHIP, CHESTER TOWNSHIP, DENVILLE TOWNSHIP, EAST HANOVER TOWNSHIP, FLORHAM PARK BOROUGH, HANOVER TOWNSHIP, HARDING TOWNSHIP, JEFFERSON TOWNSHIP, KINNELON BOROUGH, LINCOLN PARK BOROUGH, MADISON BOROUGH, MENDHAM BOROUGH, MENDHAM TOWNSHIP, MONTVILLE TOWNSHIP, MORRIS TOWNSHIP, MORRIS PLAINS BOROUGH, MOUNTAIN LAKES BOROUGH, MOUNT OLIVE TOWNSHIP, PARSIPPANY-TROY HILLS TOWNSHIP, PASSAIC TOWNSHIP, PEQUANNOCK TOWNSHIP, RANDOLPH TOWNSHIP, RIVERDALE BOROUGH, ROCKAWAY TOWNSHIP, ROXBURY TOWNSHIP AND WASHINGTON TOWNSHIP, DEFENDANTS, AND MORRIS COUNTY PARK COMMISSION, SOUTHWEST MORRIS TOWNSHIP HOMEOWNERS ASSOCIATION, AND BRITT, LARKIN AND POWERS, DEFENDANTS-INTERVENORS. MURWIN DEVELOPMENT CORP., A NEW JERSEY CORPORATION, PLAINTIFF, V. THE TOWNSHIP OF MORRIS, IN THE COUNTY OF MORRIS, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MORRIS AND THE PLANNING BOARD OF THE TOWNSHIP OF MORRIS, DEFENDANTS. HOLLOW HILL ASSOCIATES, A GENERAL PARTNERSHIP UNDER THE LAWS OF NEW JERSEY, PLAINTIFF, V. TOWNSHIP OF MORRIS, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND THE MORRIS TOWNSHIP PLANNING BOARD, DEFENDANTS



Skillman, J.s.c.

Skillman

[228 NJSuper Page 638] Morris Township is one of the defendants in the Mount Laurel action brought by the Public Advocate against various municipalities in Morris County. See Borough of Morris Plains v. Dept. of Public Advocate, 169 N.J. Super. 403 (App.Div.1979), certif. den. 81 N.J. 411 (1979) and Morris Cty. Fair Housing Council v. Boonton Tp., 209 N.J. Super. 393, 441-443 (Law Div.1985), aff'd in part, rev'd in part sub. nom. Hills Development Co. v. Bernards Tp., 103 N.J. 1 (1986), for a more complete account of the history of this lawsuit. On March 29, 1984, the Public Advocate and Morris Township entered into a settlement agreement under which Morris Township agreed to provide 535 units of lower income housing. The agreement provided for 100 of these units to be provided by publicly subsidized senior-citizen housing, another 100 units to be provided by the addition of apartments in existing single-family homes, and the remaining 335 units to be provided by rezoning

11 properties for high density residential housing, of which 20% would be affordable to lower income persons. This court approved the settlement and implementing zoning ordinance amendments and issued a final judgment of compliance on August 20, 1984. This judgment was affirmed on appeal. Morris Cty. Fair Housing Council v. Boonton Tp., 209 N.J. Super. 108 (App.Div.1986).

Plaintiff-intervenors John and Salvatore Cortese are the owners of one of the properties rezoned for Mount Laurel housing by Morris Township as part of its settlement with the Public Advocate. The Cortese site consists of Lots 82A and 85 in Block 304. Lot 82A is 7.4 acres and Lot 85 is 30.4 acres. The two lots touch only at a single point.

Under the Public Advocate's settlement with Morris Township, the Cortese property was rezoned for residential housing at a maximum density of five dwelling units an acre. The Corteses filed an application with the planning board for preliminary site plan approval of a 189-unit development, of which 38 units which would be affordable to lower income persons. All of the units were proposed to be constructed on Lot 85. The plans provided for the stormwater on this lot to be directed to a reservoir located on Lot 82A and then to be released from the reservoir to downstream properties. The plans also provided for a single motor vehicular access to the property by a driveway leading from Picatinny Road, with emergency motor vehicular access to be provided by means of a roadway leading from Hillcrest Avenue.

After a ten-day hearing, the planning board denied the Corteses' application for site plan approval. The board's memorializing resolution, dated October 19, 1987, quotes the report of its planning consultant, Harvey Moskowitz, in its entirety and simply adopts the conclusions set forth in that report. Thus, the board adopted Moskowitz's conclusion that the site plan fails to give proper consideration to: (1) site constraints and holding capacities; (2) impact on site; (3) provision of necessary

amenities; (4) aesthetic and visual impact; (5) circulation and access limitations; and (6) inadequate visitor parking. The board also adopted Moskowitz's ultimate conclusion that "[t]he site plan suffers from too many units on a difficult tract," and therefore, "[t]he numbers should be reduced to address the deficiencies noted in this, as well as other reports."

In addition to adopting these conclusions of its planner, the board also concluded that the Corteses had failed to submit an adequate stormwater management plan. The board noted that a dam, which is part of the reservoir on Lot 82A, was in need of repairs and/or modification, which would be subject to approval by the Commissioner of the Department of Environmental Protection (DEP). The board also noted that the assistant township engineer had stated that "he could not adequately review the sufficiency of applicant's stormwater management plan until the question of dam safety had been passed upon by the appropriate reviewing authorities." Accordingly, the board concluded that "the lack of design date for the stormwater detention facilities, including the earthen dam, makes it impossible for the Board to make an informed decision."

Finally, the board noted that a major issue presented by the site plan application was "whether access should be confined to a single entrance off Picatinny Road or if a second access either full or emergency should be constructed to Hillcrest Avenue/Dorothy Drive on the opposite side of the project." However, the board concluded that since it had denied the site plan application on other grounds, there was no need for it to address this access issue.

The Corteses challenge the denial of their application for site plan approval by a motion in aid of litigant's rights pursuant to R. 1:10-5. The Morris County Park Commission and two groups of local objectors to the Corteses' proposed development have been permitted to intervene to support the board's decision.

I am unable to conclude that the planning board violated the settlement agreement between the Public Advocate and Morris Township or acted arbitrarily, capriciously or unreasonably in deciding that the nature and extent of the repairs and modifications to the dam and reservoir which will be required by the DEP create so much uncertainty as to the Corteses' stormwater management plan that their site plan cannot be approved at this time. Therefore, I affirm the board's resolution denying site plan approval.

I.

N.J.S.A. 40:55D-38(b)(3) provide that any municipal ordinance governing site plan applications must require adequate plans for storm water drainage. In accordance with this statutory directive, section 57-75(A)(4) of the Morris Township land development ordinance provides:

The stormwater disposal system for any land area in the township shall be devised in such a manner that:

(a) The rate and/or velocity of stormwater runoff from said area shall not be increased over that which occurs under existing conditions.

(b) The drainage of adjacent areas is not adversely affected.

(c) Soil erosion during or after development is not increased over what naturally occurs.

(d) Soil absorption and groundwater recharge capacity of the area is not decreased below that which occurs under existing conditions.

In their stormwater management plan, the Corteses envision that all the stormwater from the 30-acre lot which they plan to develop will drain into the Jones Woods Reservoir on their adjoining 7-acre lot. The water will be temporarily retained in the reservoir and then discharged to downstream locations. The embankment of the reservoir consists in part of an earthen dam. The dam is in poor condition and the Corteses plan to repair it. The Corteses also plan to replace the existing outlet pipes from the ...


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