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Whitetail Farms, LLC v. Mullica Township Planning Board

April 25, 2008

WHITETAIL FARMS, LLC, PLAINTIFF-RESPONDENT,
v.
MULLICA TOWNSHIP PLANNING BOARD, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-2482-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 15, 2008

Before Judges Winkelstein, Yannotti and LeWinn.

Following a remand from the Law Division for findings of fact and conclusions of law, defendant Mullica Township Planning Board, for the second time, denied plaintiff's request for a front yard setback variance. It memorialized its decision in a June 7, 2006 resolution. On May 8, 2007, Judge Valerie Armstrong entered an order and issued a written opinion reversing the Board's decision, and granting plaintiff variance relief subject to certain conditions. Because we affirm the variance under N.J.S.A. 40:55D-70c(1), we do not address either defendant's arguments or the Board's findings regarding plaintiff's N.J.S.A. 40:55D-70c(2) application.

Plaintiff is the owner of a vacant lot in the Township, located at 2321 Seventh Avenue. The lot, located in the Forest Area Residential Receiving (FARR) zone, contains wetlands and endangered species. The lot's depth is approximately 800 feet.

Mullica Township is a Pinelands community subject to the provisions of the New Jersey Pinelands Protection Act, N.J.S.A. 13:18A-1 to -29 (the Act). The Act requires that the Township's zoning ordinance and master plan be approved by the New Jersey Pinelands Commission. N.J.S.A. 13:18A-12. In compliance with the Pinelands Comprehensive Management Plan (CMP), N.J.A.C. 7:50-6.14, Section VII-16-2-A of the Township's zoning ordinance provides: "No development, except for those uses which are specifically authorized . . . shall be carried out within 300 feet of any wetland unless the applicant has demonstrated that the proposed development will not result in a significant adverse impact on the wetland."

The Township's zoning ordinance also contains a land transfer program, which was established in accordance with the CMP. N.J.A.C. 7:50-5.30. The program is "designed to permit an equitable distribution of the allowable development units while insuring flexibility for property owners to sell and/or purchase parcels which contain less than the minimum required lot area or which may be otherwise unsuitable for development." The land transfer program is a conditional use in the FARR zone and it authorizes the development of residential dwelling units on lots of four acres or more in the zone, provided that the owner: "shall acquire and provide proof of ownership or sufficient non-contiguous acres located in the FAR [Forest Area Residential] district outside the FARR areas of Mullica Township to meet the twenty (20) acre*fn1 minimum bulk requirement."

The zoning ordinance provides protection to the scenic corridors in the FAR and FARR zones. The ordinance states: "[e]xcept as otherwise provided in this subsection, no permit shall be issued for development on a scenic corridor other than for agricultural product sales establishments unless the applicant demonstrates that all buildings are set back at least 200 feet from the center line of the corridor." Nevertheless,

[i]f compliance with the 200 feet setback is constrained by environmental or other physical considerations, such as wetlands, . . . the building shall be set back as close to 200 feet as practical and the site shall be landscaped . . . so as to provide screening from the corridor.

If an applicant demonstrates that existing development patterns of the scenic corridor are such that buildings within 1000 feet of the proposed development site are set back less than 200 feet, the ordinance allows that "a setback shall be set for the proposed development which is consistent with the established development pattern, provided that the site is landscaped . . . as so to provide screening between the building and the corridor."

Here, plaintiff applied under the land transfer program to permit construction of a single family dwelling on the lot. The application sought a setback variance, seeking to reduce the 200-foot front yard setback requirement to 100 feet, which was necessary to maintain the required 300-foot wetlands buffer. No other variances were needed, as the proposed development satisfied the eleven other criteria established by the Pinelands Commission and the Township. Although not required, in order to protect the integrity of the wetlands, plaintiff also offered to: (1) monument the wetlands buffer lines with permanent markers; (2) describe in all future deeds precise metes and bounds for the building envelope that would be permitted for development; (3) describe in all future deeds the precise landscape buffer required by the ordinance; and (4) provide for marking of clearing limits at the time of the issuance of the building permit.

In support of its application, plaintiff presented the testimony of Barbara Allen Woolley-Dillon, a professional planner. She testified that in her opinion plaintiff complied with the statutory criteria necessary for granting variance relief.

With regard to the positive criteria for the requested c(1) "hardship" variance, Woolley-Dillon asserted that the existence of wetlands and endangered species created a unique physical condition on the property. Those environmental constraints created a particular hardship on plaintiff, as plaintiff could not comply with both the 300-foot wetlands buffer and the 200-foot front yard setback requirement. Supporting WoolleyDillon's testimony on this point was correspondence from the Pinelands Commission, dated April 21, 2005, indicating that the property may contain as many as four endangered species, and "the development of one single family dwelling and all associated development, including clearing and land disturbance, on [the ...


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