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Shaer v. Planning Board of Township of Lawrence

Decided: June 27, 1991.

ABDELAZIM EL SHAER (AMAL ESTATES), PLAINTIFF-APPELLANT,
v.
THE PLANNING BOARD OF THE TOWNSHIP OF LAWRENCE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Law Division, Mercer County.

Judges Gaulkin, Shebell and Havey. The opinion of the court was delivered by Havey, J.A.D.

Havey

In this action in lieu of prerogative writs, plaintiff appeals from a judgment sustaining defendant Planning Board of the Township of Lawrence's (Board) denial of plaintiff's major subdivision application. On appeal plaintiff urges that: (1) his compliance with the provisions of the township's Land Development Ordinance (LDO) compelled the Board to approve his application; (2) since the Board considered off-site conditions in denying the application, its determination is arbitrary, capricious and unreasonable, and (3) the Department of Transportation's (DOT) issuance of driveway access permits preempted the Board from considering traffic safety problems with ingress and egress onto and from State Highway 206. We affirm.

Plaintiff's proposal is to subdivide a 10.22 acre tract in Lawrence Township into ten residential lots. The property is bordered to the east by Route 206, to the north by Little Shabakunk Creek and to the south by Reeder Avenue. A portion of the tract falls within wetlands adjacent to the creek. Also, the flood hazard plain of the creek intrudes upon six of the proposed lots. However, plaintiff has received approval from the Department of Environmental Protection to fill portions of the affected property in order to build. Nevertheless, substantial portions of lots 60.10 and 60.11 fell within a proposed conservation easement which prevented construction of decks or other structures within the easement area. Additionally, the site is encumbered by a 60-foot gas line easement and 20-foot sanitary easement.

The proposed lots conform to the bulk requirements of the zoning ordinance. Four of the lots front on Route 206, and six lots are on a cul-de-sac running from Reeder Avenue. Water run-off from the rear of the lots on Route 206 will drain into a stream which connects with the Little Shabakunk Creek; drainage from the front of the lots will run into an existing culvert on Route 206. The run-off from the remaining six lots will

drain into a detention basin and then be released periodically into the creek.

The four lots on Route 206 will have driveway curb cuts directly onto the highway. Plaintiff obtained access permits from DOT for the four driveways after the department concluded that there was "no concern that this development will have an adverse impact on the State highway."

In rejecting the application, the Board found that because the four driveways are "opposite a dangerous intersection with Darrah Lane [and Route 206] . . . the lots would not have safe ingress and egress." The Board also determined that Little Shabakunk Creek is already "very prone to flooding" and that potential drainage and flooding problems may "result in appreciable harmful effects to the environment" in violation of Section 8.804(b) of the LDO. Additionally, the Board concluded that the two lots affected most by the flood plain (lots 60.10 and 60.11) "were not suitable" for development because they had "no useable yard area." Finally, the Board noted that plaintiff failed to present alternative plans which would have less of an environmental impact than the plan proposed, as required by the ordinance. In affirming the Board, the trial judge endorsed the Board's fact-finding and concluded that its determination was not arbitrary, capricious or unreasonable.

We are satisfied that plaintiff has failed to overcome the presumption of reasonableness which attaches to the Board's decision. See Davis Enters. v. Karpf, 105 N.J. 476, 485 (1987); Kramer v. Board of Adjustment, Sea Girt, 45 N.J. 268, 285 (1965). That plaintiff may have met the specific bulk requirements of the development ordinance does not mean that he was entitled to an approval of his subdivision plan. A planning board "is not obligated to approve a subdivision merely because it does not violate any express provision of the zoning ordinance." Popular Refreshments, Inc. v. Fuller's Milk Bar & Recreation Center, Inc., 85 N.J. Super. 528, 537 (App. Div. 1964),

certif. denied, 44 N.J. 409 (1965). It may require that all of the lots proposed on the development plat are shown to be adaptable for the intended purposes and without danger to the general welfare. Id. It is also duty-bound to protect the public and future owners of the property in the subdivision by requiring adequate road and drainage facilities. See Smith v. Township Comm. of Tp. of Morris, 101 N.J. Super. 271, 280 (App. Div. 1968). As our Supreme Court in Levin v. Township of Livingston, 35 N.J. 500, 510-11 (1961) stated the proposition:

it is of essential importance to determine whether the whole tract proposed to be subdivided is fundamentally suitable for the projected development from the standpoint of area, topography, drainage, soil characteristics, accessibility, availability of utilities and the like, or, if not, in whole or in part, whether and to what extent special conditions can be imposed to make it so. . . . It must consider the impact upon adjacent areas and the effect of other pertinent ordinances of the municipality. Special drainage and sanitary sewage disposal problem may require particular remedies to be undertaken. . . . In short, at inception the board ...


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