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Scudese v. Washington Township Planning Board

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 6, 2007

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.
MATTHEW CARFARO, FRANK AND SHARON CARFARO, PLAINTIFFS-APPELLANTS,
v.
WASHINGTON TOWNSHIP PLANNING BOARD, WASHINGTON TOWNSHIP AND T.M. GROUP, INC., RESPONDENTS-RESPONDENTS.

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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 6, 2007

Before Judges Kestin, Graves and Lihotz.

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.

20070806

© 1992-2007 VersusLaw Inc.



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