On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-2251-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically March 12, 2008
Before Judges Winkelstein, Yannotti and LeWinn.
Plaintiff, the Widgeon Point Preservation Association, appeals from the Law Division's March 21, 2007 order affirming the decision of the Rumson Borough Planning Board that granted an extension of a subdivision approval and relief from conditions of the approval. The court dismissed plaintiff's complaint challenging the Board's actions. We affirm.
Broadmoor Properties owns a 16.4-acre tract of land, formerly designated as block 121, lots 1 and 2, in Rumson Borough. On March 1, 2004, the Board adopted a resolution granting preliminary and final conditional major subdivision approval, permitting Broadmoor to adjust the boundary line between lots 1 and 2, and subdivide lot 1 into two lots, thus creating three lots, proposed lots 1.01, 1.02, and 1.03. Each lot would contain a single family residence and would be accessible by a driveway and by a cul-de-sac extension of Broadmoor Drive. Lot 1.01 would be approximately nine acres and would consist of existing lot 2 and the adjusted portion of existing lot 1; lot 1.02 would be approximately 3.5 acres; and lot 1.03, would be approximately 2.7 acres.
The Board imposed a number of conditions upon its approval, including the following special conditions relevant to this appeal:
1) [Broadmoor] shall apply to the N.J.D.E.P. [New Jersey Department of Environmental Protection] for a freshwater wetland Letter of Interpretation confirming the presence or absence of freshwater wetlands or wetland buffers and, if present, delineating same and approving the development as shown on the subdivision plan that is the subject of this Resolution for a three (3) lot subdivision with the construction of three (3) new residential homes and the cul-de-sac extension of Broadmoor Drive.
2) [Broadmoor] shall make a new application to the Commissioner of N.J.D.E.P., CAFRA and the Army Corp[s] of Engineers for the development as shown on the subdivision plan that is the subject of this Resolution for a three (3) lot subdivision with the construction of three (3) new residential dwellings and the culde-sac extension of Broadmoor Drive.
3) The application referenced in special condition #2 above shall include a determination that the site does not contain "Bay Islands" or "Critical Wildlife Habitat" or, alternatively, that approval for [Broadmoor]'s development as presented to the Planning Board has been granted pursuant to N.J.D.E.P. and CAFRA rules and regulations notwithstanding the existence of "Bay Islands" or "Critical Wildlife Habitat" on the site.
11) [Broadmoor] shall provide written confirmation from N.J.D.E.P., to the satisfaction of the Planning Board Engineer, that [Broadmoor] has complied with all applicable Stormwater Management Regulations.
The Board imposed the conditions because it found that while "[t]he initial submission . . . indicated that [Broadmoor] had received wetland approvals from the N.J.D.E.P.[,] [d]uring the course of the hearings it became apparent that there were substantial questions as to what was approved by N.J.D.E.P. and the scope and extent of such approvals." The Board referred to a settlement agreement between Broadmoor and the N.J.D.E.P., dated July 28, 2000, permitting, among other things, Broadmoor to construct a single family dwelling on existing lot 2 accessible by a driveway on existing lots 1 and 2, and subsequent correspondence from the N.J.D.E.P. explaining what was contemplated by that agreement.
Plaintiff challenged the Board's March 1, 2004 resolution in an action in lieu of prerogative writs. On August 23, 2004, Judge Lawson remanded to the Board to determine whether the N.J.D.E.P. had approved Broadmoor's application.
On July 11, 2005, the Board issued its "Resolution Regarding Remand." It found that the "N.J.D.E.P. ha[d] not approved [Broadmoor]'s Application for a three lot subdivision as submitted to and approved by the Board in its Resolution dated March 1, 2004." The Board referred to a letter dated December 2, 2004, from N.J.D.E.P. Commissioner Bradley Campbell, which indicated that "the settlement agreement and approved ADR Plan plainly approved future construction of a single residential dwelling on Lot 2 and anticipated additional development permit applications for Lot 1." Campbell's letter indicated that "the proper course would be for [Broadmoor] to file applications under CAFRA for any development proposed for Lot 1."
Broadmoor had also received a January 10, 2005 letter from Mark Mauriello, Director of the N.J.D.E.P.'s Land Use Regulation Program, addressing the conditions in the March 1, 2004 resolution. The letter stated, in pertinent part:
Condition 1: The N.J.D.E.P. is satisfied that Broadmoor has taken all steps necessary and has obtained the equivalent approvals for a freshwater wetland letter of interpretation, and has provided all the technical information necessary for us to confirm the limits of all wetlands on Lot 2 and areas of Lot 1 that have been approved for the access road and associated improvements. The N.J.D.E.P. has . . . confirmed the limits of all tidal and freshwater wetlands as shown on the approved plan referenced above.
Condition 2: The N.J.D.E.P. has determined that Lot 2 . . . has satisfied all requirements from the N.J.D.E.P. for approval and construction may begin thereon. The N.J.D.E.P. will accept and review permit application(s) for the use of the remaining property, as well as a request for a Letter of Interpretation to confirm the location and extent of wetlands on the remainder of the property beyond Lot 2.
Condition 3: The N.J.D.E.P. considered all the Coastal Zone Management rules, including review of "Bay Islands" and "Critical Wildlife Habitat" . . . and has determined that the project approved will not have significant adverse environmental impact and therefore complies with the applicable rules.
Condition 11: The N.J.D.E.P. has determined that in response to condition number 11 . . . [Broadmoor] has complied with all applicable stormwater management regulations. The N.J.D.E.P. considers the development approved by the regulations in place at the time of the alternative dispute resolution agreement (July 28, 2000) and that the Broadmoor application is not subject to the modifications to the stormwater regulations adopted in February 2004.
The letter further provided that "minor deviations" in location and extent of development within the approved area will be considered consistent with the N.J.D.E.P.'s approval, "provided the total impervious cover limit remains the same and all development remains within the development envelope of the N.J.D.E.P. approved plan."
Mauriello issued another letter, dated December 14, 2005, stating that the N.J.D.E.P. "authorized the construction of a single residential dwelling on the property[,] . . . shown on [the ...