On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-273-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and Simonelli.
Plaintiffs, Herrontown Woods Citizens Association, Jan Mazzeo, and Anthony Mazzeo (collectively Herrontown), filed an action in lieu of prerogative writs, challenging the conditional approval issued by defendant the Regional Planning Board of Princeton Township ("Board"), which allowed defendant Landmark at Princeton, L.L.C. ("Landmark") to develop a wooded tract of land with seven luxury, single-family residences. The trial court affirmed the Board's decision. Herrontown argues the Law Division erred in upholding the Board's delegation of various aspects of the application to township professionals and private consultants, and, further, that the delegation of authority conclusively proves the Board lacked sufficient information to reach a fair and reasonable decision on the application. Additionally, Herrontown maintains that the arrangement reached between Landmark and the Board to finance a new sewer pumping station constituted an unlawful quid pro quo. We affirm the trial court's determination, discerning no flaw in the Board's preliminary approval, except for condition fifty-one, which required an unspecified contribution to the construction of a new sewer pump station. We conclude that condition must be excised as unenforceable. Twp. of Marlboro v. Planning Bd. of Holmdel, 279 N.J. Super. 638, 643-44 (App. Div.), certif. denied, 141 N.J. 98 (1995).
Landmark submitted a preliminary major subdivision and site plan application to develop a 14.77 acre tract located in the northwest corner of Snowden Lane and Van Dyke Road in Princeton Township (Township). Landmark proposed to build-out seven lots; each would contain a single-family luxury home, and the eighth lot would serve as a stormwater retention basin. A total of 4.6 acres of the site would be deed-restricted for conservation purposes.
The overall acreage contains "ecological constraints." The site sits between Van Dyke Woods and Herrontown Park. The land is heavily wooded, although about one-third of the trees are either dead or in distress. The project will require the clearing of approximately fifty-five percent of the trees. A portion of the lost trees would be replaced by extensive replanting of canopy and understory trees. Also, to minimize tree disturbance, before building permits would be issued, the individual lot site plans will be subject to review by the Board's landscape subcommittee, the Township engineer, and the Township arborist.
The site also contains wetlands. Landmark's predecessor in interest, defendant Meyerson Associates, had obtained a Letter of Interpretation (LOI) from the Department of Environmental Protection (DEP), dated September 1, 2000, which accepted the delineation of wetlands.*fn1 Wetlands were identified in the site's northeast corner; the northern edge, which is transversed from east to west by a four-foot-wide, open water channel; larger, isolated wetlands located in the southeast corner; and the western edge of the property, which is transversed from north to south by an unnamed tributary of Harry's Brook.
The property's wetlands present a recurring problem for the Township as water often drains from the site onto Van Dyke Road, which freezes in winter weather. Landmark's stormwater management plan proposed to control the runoff through a series of drywells and an extensive detention basin, which would lessen the site discharge. Landmark's application relied upon the initial LOI, even though it had expired and represented it filed an application for extension.
The subdivision proposed to use public sewer and water. The sewer system was designed to flow by gravity from the development into the thirty-five year-old All Saints Sewer Pumping Station (ASSPS), which has the requisite capacity to handle the seven proposed homes. Despite the adequacy of its current capacity, the ASSPS has deteriorated and does not meet current DEP standards. The facility was described as "a problem waiting to happen."
Prior to public hearings on its application, Landmark met with the Princeton Sewer Operating Committee (PSOC) to discuss the working condition of the ASSPS. Landmark proposed to obtain the site plan approval and assumed design responsibility to construct a new sewer pumping station. In its discussions with the PSOC, Landmark assented to contribute two-thirds of the cost of construction.
Landmark submitted plans for the new sewer pumping station with the residential development plans. Controversy arose over the station's location, and the pumping station project was ultimately severed from the development site plan application. Landmark agreed to escrow funds for a new pumping station once the PSOC obtained site plan approval and the necessary DEP permits.
The residential development site plan conformed to all applicable municipal zoning ordinances with two exceptions: variances were needed for detention basin set backs and metal halide lighting fixtures. The plans for the non-conforming detention basin and lighting were prepared. Landmark was prepared to develop the site with fully-conforming structures, but agreed that the earthen-walled basin design and lower-level lighting fixtures fit better with the residential character of the neighborhood. Herrontown did not appeal the granted variances.
The Board held hearings on Landmark's residential development application on May 19, 2005, July 14, 2005, and September 8, 2005. Seventeen Board professionals or other advisory bodies submitted reports and provided testimony commenting on the proposed development. As the hearings progressed, Landmark revised its plan and submitted amendments for review by the appropriate municipal professionals.
Herrontown presented expert and factual testimony in support of its challenges to the development, which centered on the potential environmental disruption of a forested wildlife and wetlands area. One expert, a wetlands specialist, disputed the extent of the existing wetlands delineation in the LOI. ...