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Citizens United to Protect the Maurice River and Its Tributaries, Inc. v. City of Millville Planning Board

August 6, 2007

CITIZENS UNITED TO PROTECT THE MAURICE RIVER AND ITS TRIBUTARIES, INC., ASSOCIATION OF NEW JERSEY ENVIRONMENTAL COMMISSIONS, NEW JERSEY CONSERVATION FOUNDATION AND NEW JERSEY AUDUBON SOCIETY, PLAINTIFFS-APPELLANTS,
v.
CITY OF MILLVILLE PLANNING BOARD AND MILLVILLE 1350, LLC, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, L-51-05.

The opinion of the court was delivered by: Lisa, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 15, 2007

Before Judges Lisa, Holston, Jr. and Grall.

Defendant, Millville 1350, LLC (Developer), applied to the City of Millville Planning Board (Board) for approval of a general development plan (GDP) with respect to a property consisting of 1,340 acres of which the Developer is the contract purchaser. The GDP proposed the construction of 950 detached age-restricted homes clustered on 239 acres and the construction of an eighteen-hole golf course and club house on 170 acres, with the remaining 930 acres to remain as undeveloped open space and to be permanently deed restricted as a conservation area. The Board conducted extensive public hearings, at which dozens of lay and expert witnesses testified. The Board also received voluminous expert reports. Plaintiffs are environmental organizations, and, represented by counsel, they fully participated in the proceedings before the Board.

The primary issue before the Board was whether the developer established "[t]hat the proposed planned development will not have an unreasonably adverse impact upon the area in which it is proposed to be established." N.J.S.A. 40:55D-45d; Millville Code § 30-70D. Much of the property is environmentally sensitive and is the habitat of six identified endangered or threatened animal species. In its approving resolution, the Board found that the evidence established that the proposed development will not have an unreasonably adverse impact upon the area. The Board set forth in the resolution its view that the legislation providing for GDPs was for the purpose of the increased flexibility desirable to promote mutual agreement between applicants and planning boards on the basic scheme of a planned development, and that in acting upon GDPs the matters required for consideration should be evaluated in a general way from the standpoint of probable feasibility, with the more detailed presentation being left until the more specific applications for preliminary site plan and subdivision approvals that will follow. Applying those principles and in consideration of its factual findings, the Board approved the GDP.

Plaintiffs filed an action in lieu of prerogative writs, alleging that the Board's action should be reversed because it was based upon insufficient information, was unsupported by adequate factual findings, imposed improper conditions, and was arbitrary and capricious. The parties filed cross-motions for summary judgment, which Judge Michael Brooke Fisher considered based upon the record developed before the Board.

After hearing oral argument, the judge issued a written decision. He determined that the Developer provided sufficient information to support the Board's determination that the development will not have an unreasonably adverse impact. Further, he agreed with the Board's interpretation of the statutory and ordinance provisions pertaining to GDP applications, namely that the information required may be of a general nature, and less detailed and specific than is ordinarily required in connection with subdivision and site plan applications, so long as the information provided is sufficient to support a determination whether the proposed development will have an unreasonably adverse impact upon the area.

Judge Fisher was satisfied that the Board's finding in that regard was adequately supported by the record before the Board. He was also satisfied that the conditions imposed, which included more detailed submissions in the future, when site plan and subdivision applications would be filed, were appropriate and not contrary to State or local law. The judge accorded the Board's action a presumption of validity, found that plaintiffs failed to overcome the presumption, and concluded that the Board's action was not arbitrary, capricious or unreasonable. He therefore granted summary judgment in favor of the Developer and Board and denied plaintiffs' summary judgment motion. Accordingly, he dismissed the complaint.

On appeal, plaintiffs argue that the Board and trial judge incorrectly interpreted the "unreasonably adverse impact" standard, that the Board approved the GDP on an inadequate record, that the conditional approval of the GDP was contrary to law and invalid, and that the Board's resolution failed to make sufficient findings. We reject these arguments and affirm.

I.

The 1,340 acre tract is presently owned by Conectiv, an electric utility company. Conectiv's predecessor, Atlantic City Electric Company, purchased a larger tract encompassing the 1,340 acres, subdivided a portion of the larger tract, and constructed an electrical substation on the subdivided portion. Conectiv has now determined to relinquish its ownership of the 1,340 acres. In 1999, the New Jersey Department of Environmental Protection (DEP) offered to purchase the property for $2,553,000 to be used for conservation and recreation purposes. The offer was declined, and the Developer contracted in 2002 for the purchase of the property for $4 million.

The property is in an outlying area, away from the developed portion of the City of Millville. It has frontage on Route 49 and is located near the intersection of Route 49 and Route 55, a major limited access State highway. City water and sewer are available to the property. The property is bordered on one side by the Menantico Creek and on the other by a branch of the Manumuskin River, both of which discharge into the Maurice River.

The property is not a virgin tract. It has been used over the years for mining gravel and sand, leaving behind large craters which have become ponds. A holly orchard has been planted, and, although abandoned, covers a large portion of the property. A conference center, which was unsuccessful in its intended purpose, remains on the property. The property also contains parking lots and other miscellaneous structures, as well as a former railroad bed and power line right-of-way. The property is regularly used, without authorization, by the operators of ATVs and other off-road vehicles. The property is not within the Pinelands and is not regulated by the Coastal Area Facility Review Act (CAFRA).

The zoning classification of the property is Land Conservation (LC). Planned adult community developments are permitted uses in the LC district, and golf courses are permitted accessory uses. Millville Code § 30-227A, C(2). "The purpose of a planned adult community development is to maintain the natural, rural and scenic qualities of the LC Land Conservation District by preserving sensitive environmental features and significant open lands while providing necessary housing opportunities for an aging population." Millville Code § 30-227A. A planned adult community requires a minimum area of 150 acres, must be serviced by city water and sewer, must contain sufficient uplands and developable acres to support at least 150 housing units, and must conform with the City's affordable housing requirements. Millville Code § 30-227B. Open space requirements in such developments must be a minimum of fifty percent of the gross acreage, and at least thirty percent of the total area must be set aside as conservation areas. Millville Code § 30-227D(3)(a).

The ordinance requires that "[l]ots and structures shall be laid out to the greatest extent feasible so they are located on the least environmentally sensitive area of the site and in a manner which maximizes the preservation area for long term conservation." Millville Code § 30-227E(1) (emphasis added). A minimum 150 foot buffer zone is required between residential and environmentally sensitive areas. Millville Code § 30-227E(3).

In the GDP, the Developer proposed development in eight phases over a ten-year period. The clubhouse, golf course and utilities would be constructed first, after which 113 to 145 units would be built in each phase. In preparation for the application process, the Developer hired an environmental expert, Robert Zappalorti, of Herpetological Associates, Inc. (H.A.). Zappalorti is recognized by all involved in this case, including plaintiffs and their experts, as a highly knowledgeable and reputable environmental expert, who has worked extensively with environmental organizations and the DEP. Zappalorti will occasionally work with a developer if he is satisfied that the developer is committed to sound environmental planning. Indeed, Zappalorti was recommended to the Developer in this case by the Executive Director of the New Jersey Chapter of the Nature Conservancy.

Zappalorti and H.A. are thoroughly familiar with the property that is the subject of this case and the surrounding area, having studied it and collected extensive data for more than twenty years. H.A.'s March 13, 2003 report consists of about fifty pages, exclusive of appendices. It contains a detailed description of the property, describes the methods used in evaluating the property, and sets forth results and recommendations. The report verified the existence on the property of two endangered species, the Pine Barrens treefrog and corn snake, as well as four threatened species, the pine snake, Cooper's hawk, barred owl and red-headed woodpecker. Critical habitat areas were identified and defined, and the report opined that they will be protected by appropriate buffers. The report set forth a series of recommendations as follows:

1. No development should take place within the Wild and Scenic Rivers Buffer Zones.

2. No construction of housing units or the golf course should take place within any delineated wetlands, or their wetland buffer zones.

3. All development shall comply with NJDEP's wetland regulations.

4. Whenever possible, all proposed housing should be clustered and not located within any areas of ...


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