On appeal from Superior Court of New Jersey, Law Division, Salem County, Docket No. L-338-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner, Gilroy and Baxter.
Plaintiff N&K Ventures, LLC (N&K) appeals from a July 30, 2007 order that granted summary judgment to defendant Alloway Township Planning Board (Board). In so doing, the Law Division concluded that the Board acted properly when it denied N&K's application for preliminary subdivision approval to build a twenty-four unit housing development. We affirm.
Plaintiff is the owner of a 39.38 acre parcel of land in Alloway Township that is currently in agricultural use and is zoned accordingly. The site fronts on Cobbs Mill Road in Alloway and its back forms the municipal boundary between Alloway and Quinton Townships. Plaintiff also owns a 167-acre parcel in Quinton Township that is adjacent to the Alloway site and is situated on the other side of the boundary line that runs between the two townships.
Plaintiff's plan called for subdividing the 39.38 acre parcel into twenty-five lots in connection with the development of twenty-three single-family residences. Of the two remaining lots, one was deed-restricted against further subdivision and would retain the residence that was already situated there. That lot would also serve as the location for one of the development's two stormwater drainage basins. Plaintiff proposed to site the other drainage basin on the property it owns in Quinton. The twenty-fifth lot would be preserved for open space.
When the Board denied plaintiff's application on August 9, 2006,*fn1 it did so for four reasons: lack of access to township roads, insufficient information concerning the stormwater management plan, failure to comply with septic regulations promulgated by the Department of Environmental Protection ("DEP"), and failure to provide satisfactory agricultural buffers. We confine our discussion to those four issues and begin with the first of the four.
Plaintiff's subdivision proposal specified that access to the development would be provided by a boulevard running through plaintiff's Quinton property that would connect to Peck's Corner Road in Quinton. Although no township ordinance imposed a requirement that access to the development be provided via a road in Alloway Township itself, Board members and members of the public expressed considerable objection to this aspect of plaintiff's application. The feasibility of constructing an access road between the development and an Alloway roadway was a major topic of discussion at the hearings. There were only two possible ways to do so: build a road across the one deed-restricted lot to Cobbs Mill Road, or construct an internal road between the development and the nearby "Heritage" subdivision that was being constructed by a different developer, the Heritage Building Group. Neither of these alternatives proved viable. As a result, plaintiff's final application provided only for an unpaved, emergency access road across the deed-restricted lot, Lot 2.07.
The issue of stormwater management and flooding also received considerable attention from the Board and members of the public because homeowners in the area adjacent to plaintiff's proposed subdivision were already experiencing significant problems with flooding and drainage. The application specified that stormwater runoff from the subdivision would be managed by the two drainage basins. The basin on Lot 2.07 would accept water solely from Alloway. The basin in Quinton would drain the access road, surrounding properties in Quinton, and about 100 feet of the rear Alloway lots. Consequently, plaintiff's proposal to accomplish stormwater management by establishing one stormwater retention basin in the development itself and the other in Quinton was viewed as problematic by the Board for two reasons: (1) the difficulties presented by requiring Alloway taxpayers to pay for maintenance of a retention basin that was located in a different municipality; and (2) plaintiff's stormwater management plan included an emergency spillway that would direct the discharge towards Cobbs Mill Road, which was itself known to flood during heavy rains.
Carl Gaskill, the Board's engineer, testified that plaintiff had not provided him with sufficient storm design information to enable him to opine with reasonable certainty that plaintiff's stormwater management designs would work. Consequently, Gaskill asked plaintiff in technical review letters written on May 1, 2006, and June 8, 2006, to provide additional information concerning its stormwater management plan. At the July 12, 2006 Board hearing, Gaskill testified that he still did not have all of the information he needed to conduct a final review of the stormwater management plan and asked that plaintiff provide him with calculations, worksheets, and additional data, particularly with regard to the Quinton basin. Plaintiff agreed to do so.
In a technical review letter dated August 4, 2006, Gaskill acknowledged receiving a supplemental stormwater management report from plaintiff, but stated that the report omitted certain calculations, worksheets, and data that he needed for his review. At the August 9, 2006, hearing, Gaskill testified that he had just received the information requested in the August 4 letter. Consequently, he had not had time to review the information thoroughly, but based on the explanation plaintiff's expert provided to him during a meeting earlier that week, he did not anticipate "any problems" with the stormwater management plan. Plaintiff had earlier refused to consent to any further extensions of time.*fn2
Near the end of the July 12, 2006 Board hearing, the Board questioned whether plaintiff's plan conformed with Alloway's Land Development Ordinance § 75-46.2 (2006) ("Ordinance 75-46.2"),*fn3 which requires the installation of a fifty-foot buffer between a residential subdivision and an adjacent agricultural use. Plaintiff was required to comply with the ordinance because the property plaintiff owned in Quinton was currently being used for agricultural purposes, thereby triggering the agricultural buffer requirement. In addition to the required fifty-foot barrier, an applicant is also required to install one of what the parties refer to as "vertical amenities," which includes fencing, shade trees and shrubbery. The ordinance requires the fifty-foot setback to be located on the applicant's property. Because plaintiff's proposal sited the buffer in Quinton, not in Alloway, it did not conform with the ordinance. Plaintiff agreed to submit plan revisions that would comply.
At the August 9, 2006 hearing, plaintiff asserted that: it had revised its plans so as to fully conform with the agricultural buffer requirement; no variances were needed; and it was not requesting any waivers or variances. Gaskill testified that the proposed buffer appeared to satisfy the ordinance, but that the revisions showing mounding, grading, and vegetation details had just been provided to him and that he had not had time to review them fully.
Members of the public who testified at the hearing expressed dissatisfaction with the proposed buffer, noting that it did not extend to all of the adjacent farmland and that much of the buffer was located in Quinton and thus outside of the Board's jurisdiction. Solutions proposed by plaintiff included conservation easements, rights of access, bonding and a homeowners' association that spanned both townships. Ultimately, the Board rejected those proposals and concluded that plaintiff's proposal did not satisfy the requirements of the ordinance.
A concern that lingered throughout the hearings involved plaintiff's intentions with regard to its adjoining property in Quinton. At the outset, Board members inquired whether plaintiff planned to develop the Quinton site. Dale Riggs, plaintiff's managing member, replied that there would eventually be development in Quinton that when combined with the twenty-four residential lots in Alloway would exceed fifty lots. Members of the public later provided the Board with a concept plan prepared by plaintiff that depicted a large, adjoining subdivision in Quinton. Near the end of the hearings, Riggs attempted to revise his position by stating that while there would be some development in Quinton, no specific number of lots had been established. He stated, "I want to develop the Quinton piece to the extent that I possibly can without it being a detriment."
The question of whether plaintiff intended to develop its Quinton property for residential use was critical because of a DEP regulation that requires developers who intend to construct more than fifty homes to submit a proposed septic plan to the DEP for its approval. N.J.A.C. 7:9A-3.18(d) provides:*fn4
No subdivision approval shall be granted by any municipal or other authority in the State to cover 50 or more realty improvements, or less than 50 where the subdivision extends into an adjoining municipality or municipalities and will, in the aggregate, cover 50 or more realty improvements, until the Department has certified that the proposed sewerage facilities for realty improvements comply with applicable State standards. [(emphasis added).]
Plaintiff argued before the Board that it proposed to build only twenty-four realty improvements, no other application was pending in either Alloway or Quinton and that accordingly, the DEP septic regulation should not be applied. The Board disagreed and concluded that unless plaintiff obtained septic system certification from the DEP, the Board lacked authority to grant preliminary subdivision approval. Specifically, the Board determined that the DEP regulation was intended to address subdivisions like plaintiff's, where development straddles a municipal boundary. In support of that conclusion, the Board pointed to the portion of the DEP regulation that specifically provides that even if the realty improvements number less than fifty, such ...