April 2, 2008
WIDGEON POINT PRESERVATION ASSOCIATION, PLAINTIFF-APPELLANT,
BROADMOOR PROPERTIES, INC., AND PLANNING BOARD OF THE BOROUGH OF RUMSON, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Broadmoor Property Site Plan]." The letter added:
1. The authorization to develop [block 121, lots 1 and 2] was issued independent of the lot lines or lot configuration. Any future subdivision of the property will not void or otherwise negate the existing authorization to construct a dwelling in accordance with the referenced plan.
2. The authorized development is not subject to review under the Stormwater rule adopted by the N.J.D.E.P. and effective on February 2, 2004. Further, any future subdivision of the property would not subject the previously authorized development to review under the February 2, 2004 adopted Stormwater rule.
On December 16, 2005, while the Law Division action was pending, Broadmoor applied to the Board for "modification and/or elimination of conditions" of the Board's March 1, 2004 resolution. Broadmoor claimed that it had satisfied the conditions for construction of one single family home and an access driveway on proposed lot 1.01, and for construction of a cul-de-sac extension of Broadmoor Drive. Broadmoor sought relief from special conditions 1, 2, 3 and 11 as pertaining to one single family house and driveway to be constructed on proposed lot 1.01. It proposed that instead of the conditions, it would record a deed restriction prohibiting residential development of proposed lots 1.02 and 1.03.
Because the Law Division action was pending, Broadmoor was precluded from filing its application until after the court issued its February 16, 2006 decision affirming the Board's March 1, 2004 resolution conditionally approving Broadmoor's application for a three-lot subdivision. Widgeon Point Pres. Ass'n v. Plan. Bd., Borough of Rumson, No. L-1708-04 (Law Div. Feb. 16, 2006) (Widgeon Point I). The next day, Broadmoor submitted its application for modification or elimination of the conditions.
The Board conducted hearings on Broadmoor's application in March and April 2006. Broadmoor requested the Board to extend the two-year period of protections from zoning changes for the subdivision approval. It also sought a tolling, pursuant to N.J.S.A. 40:55D-21, for the twenty-two months in which Widgeon Point I was pending in the Law Division.
On April 3, 2006, the Board adopted a resolution providing Broadmoor with an extension of protection from zoning changes for one year, from March 1, 2006 to March 1, 2007. The Board found:
5. [Broadmoor] has been diligently pursuing its subdivision approval and is ready to proceed with approval but for the institution of litigation by [plaintiff] . . . . The Planning Board . . . takes judicial notice of [the existence of the Law Division's decision in Widgeon Point I] and that [plaintiff] instituted that action based in part upon its argument that the proposed development would result in adverse environmental consequences violative of the public health, safety and welfare. The Planning Board is satisfied that the institution of these proceedings and the uncertainty which accompanies such litigation had, at minimum, the impact of indirectly preventing [Broadmoor] from finalizing its subdivision approval and that consequently a period of tolling is appropriate.
6. . . . [U]nder all the circumstances[,] . . . including the litigation, the complexity of the Application and various issues related to N.J.D.E.P. that it is appropriate under the circumstances to grant the requested one year extension of the period of protection as the nature and character of the area has not changed and the zoning provisions of the Municipality have not changed in any manner which affects the proposed development. [Broadmoor] has clearly expended substantial time, effort and cost in defending its approvals and the Board is unaware of imminent impending revisions of the zoning ordinance which would be adversely impacted by the extension of the protections under N.J.S.A. 40:55D-52.
In conjunction with Broadmoor's application for modification or elimination of the conditions of the March 1, 2004 resolution, the Board considered several documents, including the December 2, 2004 Campbell letter; the January 10, 2005 Mauriello letter; a stormwater management report; the final major subdivision plat; and a March 1, 2006 report from C. Bernard Blum, the Borough engineer. In the latter report, Blum indicated that the only proposed change from the March 1, 2004 approval was the revision in conditions applicable to proposed lots 1.02 and 1.03, which would be deed-restricted against further development, and that in Broadmoor's new plan, only one new house would be constructed on proposed lot 1.01. He also noted that "[t]he proposed lot layout remains the same as in the previously approved plans; therefore, the amended application does not require any additional variances."
Blum also addressed the status of the four conditions from the March 1, 2004 resolution that were at issue. He acknowledged that the January 10, 2005 Mauriello letter established that the N.J.D.E.P. was satisfied that Broadmoor "has taken all necessary steps and has obtained the equivalent approval for a freshwater letter of interpretation and has provided all information technically necessary to confirm the limits of all wetlands on existing Lot 2 and the po[r]tion of existing Lot 1, which contains the proposed access road." Blum added that the N.J.D.E.P. determined that "existing Lot 2 ha[d] satisfied all requirement[s] from the N.J.D.E.P. for approval and construction may begin on existing Lot 2." He noted that Mauriello's letter showed that the N.J.D.E.P. considered the Coastal Zone Management rules, including review of "Bay Islands" and "Critical Wildlife Habitat," and determined that the approved project would not have significant adverse impact on the environment, "and therefore complies with the applicable rules." Finally, Blum observed that Mauriello advised that the N.J.D.E.P. determined that Broadmoor complied with all necessary stormwater regulations.
At the March 6 Board hearing, Broadmoor offered the testimony of Charles Witczak, a civil engineer, who testified that the Broadmoor Drive extension of the cul-de-sac in the N.J.D.E.P.-approved plan was consistent with that which had been approved by the Board in 2004. The driveways and the areas of wetlands mitigation on the proposal before the Board were also consistent with the N.J.D.E.P.-approved plan.
Plaintiff offered the testimony of planner John Chadwick. The bulk of his testimony related to what he believed were Broadmoor's intended uses for the lots, and he testified that the cul-de-sac was not necessary. He admitted that the September 10, 1999, N.J.D.E.P.-approved plan had a cul-de-sac in the proposed location.
On May 1, 2006, the Board adopted a resolution granting deviation from the 2004 subdivision approval. The Board found that the N.J.D.E.P. had agreed that Broadmoor obtained all approvals necessary for construction of one single family residence on existing lot 2 and a proposed access road on existing lot 1. The Board also found that "Broadmoor demonstrated compliance with the Conditions of Approval 1, 2, 3 and 11 with respect to the development of one (1) single family residence on proposed Lot 1.01."
In addition, the Board found that the deed restriction was appropriate in exchange for the removal of conditions 1, 2, 3 and 11 for proposed lots 1.02 and 1.03. The Board reasoned that the deed restriction did not offend the zoning ordinance; that it promoted portions of the zoning ordinance; that it would serve to preserve the property and its environmental features; and that conservation of the property was in the public interest.
The Board approved Broadmoor's application subject to the deed restriction. The approval also permitted Broadmoor to "access and use the Deed restricted lots to satisfy the wetland mitigation requirements previously established by N.J.D.E.P. for the property."
Plaintiff challenged the Board's resolution in the Law Division. Following a bench trial, Judge Lawson issued a March 8, 2007 written opinion affirming the Board's actions. The court found that because N.J.S.A. 40:55D-21 applied, Broadmoor's approvals were "correctly tolled until March 2007." The court further found that the Board properly waived the conditions for lots 1.02 and 1.03, and it affirmed the Board's finding that the letters from N.J.D.E.P. reflected that approval for lot 1.01 was obtained and N.J.D.E.P. approvals for lots 1.02 and 1.03 were not necessary.
We begin our analysis with plaintiff's contention that the trial court erred by affirming the Board's extension of Broadmoor's protections. Plaintiff asserts that there was no evidence in the trial record that Broadmoor was "otherwise ready, willing and able to proceed with said development," N.J.S.A. 40:55D-21, in that it did not apply for a letter of interpretation (LOI) for the three-lot, three-house subdivision, or apply for a CAFRA permit.
In examining plaintiff's contentions, we are governed by the same standard as the trial court when it considers an appeal of a municipal board's action. Cohen v. Bd. of Adjustment, Borough of Rumson, 396 N.J. Super. 608, 614-15 (App. Div. 2007). "[A] decision of a [planning] board may be set aside only when it is 'arbitrary, capricious, or unreasonable.' . . . A Court will not substitute its judgment for that of a board 'even when it is doubtful about the wisdom of the action.'" Cell South of N.J., Inc. v. Zoning Bd. of Adjustment, W. Windsor Twp., 172 N.J. 75, 81-82 (2002) (citations omitted). "[Planning boards], 'because of their peculiar knowledge of local conditions, must be allowed wide latitude in the exercise of the delegated discretion.'" Burbridge v. Governing Body, Twp. of Mine Hill, 117 N.J. 376, 385 (1990) (citation omitted). We "will not disturb a board's decision unless we find a clear abuse of discretion." Cell South, supra, 172 N.J. at 82; see also Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296-97 (1965).
We apply these principles to the issue here, whether Broadmoor was entitled to an extension of its approval pursuant to N.J.S.A. 40:55D-21, which provides:
In the event that, during the period of approval . . . granted to an application for development, the developer is barred or prevented, directly or indirectly, from proceeding with the development otherwise permitted under such approval by a legal action instituted by . . . [a] party to protect the public health and welfare . . . and the developer is otherwise ready, willing and able to proceed with said development, the running of the period of approval under this act . . . shall be suspended for the period of time said legal action is pending . . . .
The tolling provision of N.J.S.A. 40:55D-21 does not "suspend the running of the protected period following the local board's approval while the developer pursues the approvals of other agencies"; rather, there must be "a 'legal action instituted' . . . ." Jordan Developers, Inc. v. Plan. Bd., City of Brigantine, 256 N.J. Super. 676, 680-81 (App. Div. 1992). Here, there was such a legal action, and Broadmoor complied with the terms of the tolling statute.
Plaintiff's first complaint, filed with the Law Division on April 12, 2004, challenging the Board's March 1, 2004 resolution, constituted "legal action instituted" by a "party." N.J.S.A. 40:55D-21. It was instituted, in part, for the purpose of "protect[ing] the public health and welfare." N.J.S.A. 40:55D-21. For instance, in the third count, the complaint alleged that "failure to comply [with a particular ordinance] will result in substantial detriment to . . . the public interest." The fifth count alleged that "[t]he Planning Board failed to impose conditions necessary to protect the zone plan and the public."
Plaintiff's litigation "barred or prevented, directly or indirectly, [Broadmoor] from proceeding with the development otherwise permitted under such approval." N.J.S.A. 40:55D-21. On April 26, 2005, Broadmoor notified the Board of its intention to withdraw its prior application, "abandon the . . . Board's prior approval of that application," and "pursue a conforming site plan application limited to the development of a single home that N.J.D.E.P. has unequivocally approved." The following December, Broadmoor submitted its application for modification or elimination of conditions of the March 1, 2004 resolution. The Widgeon Point I litigation was still pending in the Law Division, however, and the Board determined that it had no jurisdiction to entertain Broadmoor's application while the case was pending. Consequently, it was not until February 17, 2006, the day after Judge Lawson decided Widgeon Point I, that Broadmoor resubmitted its application. This is evidence that plaintiff's court challenge to the March 1, 2004 resolution prevented Broadmoor from proceeding with its development.
Broadmoor presented the Board with sufficient evidence for a finding that it was "ready, willing and able" to proceed with development. N.J.S.A. 40:55D-21. Since the March 1, 2004 resolution and subsequent litigation, correspondence with the N.J.D.E.P. reflects Broadmoor's attempts to move forward. Mauriello's March 29, 2004 letter and an August 20, 2004 letter from Commissioner Campbell led to a follow-up letter from Campbell, dated December 2, 2004, which indicated that the 2000 agreement approved construction of a single residential dwelling on lot 2; that it was vague as to the number of homes that were permitted on lot 1, but that no approval was given; and that it would be the "proper course" for Broadmoor to apply for a CAFRA permit for proposed development on lot 1. Then, in a January 10, 2005 letter addressing the "N.J.D.E.P.-approved development" relating to block 121, lot 2, Mauriello addressed conditions 1, 2, 3 and 11 of the March 1, 2004 resolution. The letter indicated that Broadmoor had taken the necessary steps to obtain the equivalent approvals for a freshwater wetlands LOI, and had provided the necessary information for the N.J.D.E.P. 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. confirmed the limits of all tidal and freshwater wetlands implicated by the plan. The N.J.D.E.P. further determined that lot 2 satisfied its requirements for approval and for construction to begin. It had considered the Coastal Zone Management rules and concluded that the proposed plan did not "have significant adverse environmental impact" and complied with the applicable rules. The N.J.D.E.P. also determined that Broadmoor had complied with the applicable stormwater management regulations.
Mauriello sent another letter, dated December 14, 2005, clarifying that the N.J.D.E.P.'s authorization for construction of a single residential dwelling pursuant to the N.J.D.E.P.-approved site plan "was issued independent of the lot lines or lot configuration," and that future subdivision "will not void or otherwise negate the existing authorization to construct a dwelling in accordance with" the plan. That letter also stated that the authorized development "is not subject to review under the Stormwater rule adopted by the N.J.D.E.P.," nor would that be altered by future subdivision.
On April 26, 2005, defendant informed the Board of its intention to pursue approval of development of a single home in conformance with the N.J.D.E.P. approvals. Finally, on March 1, 2006, the Borough engineer issued a report that documented a number of steps taken by Broadmoor to effect modification of its plan, including drafting the appropriate deed restrictions and a proposed resolution, obtaining a current Stormwater Management Report, and revising plans to address several conditions in the March 1, 2004 resolution.
The circumstances show that but for the litigation, Broadmoor was otherwise ready, willing, and able to proceed with its application for modification of the March 1, 2004 resolution and to begin development of a single residential dwelling on the property in conformance with the N.J.D.E.P.-approved plans. Thus, Judge Lawson did not err in concluding that the Board was not arbitrary, capricious, or unreasonable in tolling the protections pursuant to N.J.S.A. 40:55D-21.
We next address plaintiff's argument that the Board had no authority to waive the LOI condition it imposed in its March 1, 2004 resolution. That condition related to confirmation of the presence or absence of freshwater wetlands and wetlands buffers in the subdivision plan. We find no merit to plaintiff's position.
The Freshwater Wetlands Protection Act (FWPA) governs "regulated activity" in freshwater wetlands. N.J.S.A. 13:9B-3. A person proposing to engage in regulated activity "may, prior to applying for a freshwater wetlands permit or transition area waiver, request from [the N.J.D.E.P. an LOI] to establish that the site of the proposed activity is located in a freshwater wetland or transition area." N.J.S.A. 13:9B-8a. The request for the LOI is not a mandatory requirement under the statute. Crow-N.J. 32 Ltd. P'ship v. Twp. of Clinton, 718 F.Supp. 378, 387 (D.N.J. 1989).
Here, due to the confusion surrounding the scope of what the N.J.D.E.P. had actually approved, the Board's March 1, 2004 resolution included a condition that Broadmoor apply to the N.J.D.E.P. for a freshwater wetlands LOI. It had been unclear whether the N.J.D.E.P. approved plans for a three-lot, three-house subdivision, or whether the N.J.D.E.P. only approved plans for one single family dwelling on lot 2 with a driveway on lots 1 and 2, as indicated in the July 2000 agreement. A series of letters from the N.J.D.E.P. confirmed that it had only approved the latter. The December 2, 2004 letter from Commissioner Campbell confirmed that the N.J.D.E.P. had only approved construction of a single residential dwelling on existing lot 2. On January 10, 2005, Mauriello indicated:
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 [LOI], and has provided all the technical information necessary for the N.J.D.E.P. 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.
On December 10, 2005, Mauriello indicated that the N.J.D.E.P. authorization was issued "independent of the lot lines or lot configuration."
The evidence shows that Broadmoor did all that was necessary to obtain approval for its plan to construct one house on the property. Campbell's and Mauriello's letters confirmed that on July 28, 2000, the N.J.D.E.P. approved a plan to construct a single family dwelling on lot 2, with a driveway extending onto existing lot 1. Broadmoor has not proposed construction that would deviate from the N.J.D.E.P.-approved plans. Witczak testified that a September 10, 1999, N.J.D.E.P.-approved site plan, and a December 7, 2005 plan for which Broadmoor sought Board approval, were substantially the same with regard to construction and wetlands mitigation. Chadwick's testimony was consistent with Witczak's. The evidence supported Judge Lawson's finding that "[t]he construction plans are the same as those approved by the N.J.D.E.P."
Plaintiff also argues that the N.J.D.E.P., through Mauriello's January 10, 2005 letter, required that Broadmoor request an LOI to confirm the location and extent of wetlands on the remainder of the property beyond lot 2, and required Broadmoor to submit a permit application for use of property other than existing lot 2. We disagree with plaintiff's interpretation of Mauriello's letter.
The language plaintiff relies on states: "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[n] [LOI] to confirm the location and extent of wetlands on the remainder of the property beyond Lot 2." This language does not, however, require action by Broadmoor unless its seeks to improve property not subject to the current approval. And notably, plaintiff has proposed to restrict development in this area with a conservation restriction, rather than construct improvements on it or engage in "regulated activity." Broadmoor's plan was consistent with that which was approved by the N.J.D.E.P., thus not requiring further LOIs or permits pursuant to Mauriello's letter.
Finally, plaintiff's concern with the changing lot lines is misplaced because the N.J.D.E.P. indicated that the authorized development was issued "independent of the lot lines or lot configuration," and that "future subdivision of the property will not void or otherwise negate the existing authorization to construct a dwelling in accordance with the referenced plan."
The Board's approval of Broadmoor's application for modification or elimination of the conditions was not arbitrary, capricious or unreasonable. The LOI requirement was imposed as a condition of the Board's approval of Broadmoor's proposed three-lot, three-house subdivision. The Board properly waived that condition after Broadmoor altered its plan and after receiving Mauriello's letter, finding that Broadmoor obtained the equivalent of an LOI for its plan to build a single house.
Plaintiff claims that the Borough's zoning ordinance requires that an LOI be submitted with a subdivision application, and consequently the Board did not have the authority to waive that requirement absent Broadmoor's obtaining a variance. We disagree.
The Municipal Land Use Law provides that an ordinance requiring planning board approval of either subdivisions or site plans shall include "[p]rovisions ensuring that when a municipal zoning ordinance is in effect, a subdivision or site plan shall conform to the applicable provisions of the zoning ordinance." N.J.S.A. 40:55D-38d. Nevertheless, applicants for development "may request that one or more of the submission requirements be waived." N.J.S.A. 40:55D-10.3. The question here is whether an LOI is a submission requirement that is waivable by the Board. We conclude that it is.
The Borough's development ordinance includes the following provision regarding subdivision application procedures:
A subdivision and site plan application shall be complete for purposes of commencing the applicable time period for action when so certified by the Administrative Officer or designee. In the event that the Administrative Officer or designee does not certify the application to be complete within forty-five (45) days of the date of its submission, the application shall be deemed complete upon the expiration of the forty-five (45) day period . . . unless: (a) the application lacks information indicated on the checklist of items specified in Section 22-12. [Borough of Rumson, N.J., Ordinances, § 22-4.3c1 (1990).]
The cross-referenced checklist section lists the documents that need to be submitted for the proposed development, and it also gives the municipal agency the authority to waive the submission of a particular document. Borough of Rumson, N.J., Ordinance, § 22-12.2 (1990). Under the heading Supplementary Documents, at D.3, the list includes, "Freshwater Wetlands Letter of Interpretation for the project area." Next to this item, there is no "x" in the "variance" column. Thus, a freshwater wetlands LOI is a submission requirement that may be waived pursuant to section 22-12.2 of the Borough's ordinance and consistent with N.J.S.A. 40:55D-10.3.
Finally, we address plaintiff's argument that Broadmoor failed to establish changed circumstances or other good cause to have warranted the Board's reconsideration of the conditions it imposed in the March 1, 2004 resolution. Again, we disagree.
A new application for subdivision approval, or for lifting conditions previously imposed on an approval already granted, is appropriate "upon a showing that the continued enforcement of the restriction would frustrate an appropriate purpose." Allied Realty, Ltd. v. Borough of Upper Saddle River, 221 N.J. Super. 407, 414 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988). "Changed circumstances or other good cause may warrant reconsideration by the local authorities." Ibid.
Broadmoor demonstrated sufficient changed circumstances to warrant the relief provided by the Board. After the N.J.D.E.P. confirmed that it had approved the construction of only one residence, and indicated that special conditions 1, 2, 3 and 11 were satisfied with regard to existing lot 2 and the portion of existing lot 1 approved for development, Broadmoor moved forward with its application for modification to obtain Board approval for construction of one house, a driveway, and cul-de-sac extension in accordance with the N.J.D.E.P.-approved plans. In exchange for waiver of the conditions for the remainder of the property, it offered a conservation restriction on the undeveloped land. These developments demonstrate changed circumstances and good cause for the Board's elimination of the previously imposed conditions.
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