August 15, 2008
JEFFREY BROADHURST AND ELLEN BROADHURST, PLAINTIFFS-APPELLANTS,
TOWNSHIP OF HOLLAND PLANNING BOARD AND ALLEN BLUMBERG, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-400-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 13, 2008
Before Judges Coburn, Fuentes and Chambers.
Plaintiffs Jeffrey and Ellen Broadhurst appeal from the order of the Law Division upholding the decision of defendant Township of Holland Planning Board to grant defendant Allen Blumberg final major subdivision approval. Plaintiffs argue that: (1) the Board and applicant failed to comply with the Municipal Land Use Law's requirement that application documents be available for public inspection ten days prior to a scheduled board hearing; and (2) the Board improperly granted the applicant a variance under N.J.S.A. 40:55D-70(c), with respect to the width of an easement for the access of open space on the property.
During the pendency of this appeal, plaintiffs sold their property adjacent to the applicant's proposed development. Defendants thus argue that this land sale deprived plaintiffs of standing to prosecute this appeal, because plaintiffs no longer have an interest in the application.
We affirm. The record supports the Board's findings that the applicant timely submitted the relevant documents and that they were on file and available for public inspection. With respect to the access easement variance, we agree with the trial court that plaintiffs had sufficient notice to raise the issue at the relevant hearing. We find no basis to conclude that the Board improperly delegated its authority to its engineer with regard to the easement. Having reached this conclusion, we do not address defendants' mootness argument. We summarize the following facts from the record developed before the Board.
Blumberg owns a 110-acre parcel on Hawks Schoolhouse Road in Holland, New Jersey. Seeking to develop his property, Blumberg began the process of obtaining subdivision approval with the Township Planning Board in August 2002. When Blumberg filed his applications, plaintiffs owned property on Hawks Schoolhouse Road adjacent to Blumberg's parcel. However, plaintiffs sold their property while this appeal was pending.
On August 27, 2002, Blumberg filed an application for preliminary major subdivision approval. The Board held public hearings on the application on March 10, April 14, June 9, and July 14, 2003.*fn1 Plaintiffs allege that Blumberg's stormwater management plan was not available for public inspection ten days before the June 9, 2003 hearing, as required by the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163.
At the March 10, 2003 hearing, plaintiff Jeffrey Broadhurst advised the Board that neither Blumberg's stormwater management plan nor his environmental impact statement ("EIS") was in the application file available for public inspection. Stormwater runoff was of particular concern to plaintiff, because his property is situated downhill from the Blumberg site. At the hearing, the Board secretary produced the application file, which contained all the relevant documents.
The Board chair speculated that there may have been a miscommunication regarding the EIS and "geology report." As a result, the Board concluded that these documents were available, but not necessarily provided to the public on request.
Because of substantial changes to the subdivision plan, Blumberg republished notice in anticipation of the June 9, 2003 hearing. On June 5, 2003, plaintiffs' counsel sent a letter to the Board attorney stating:
[Plaintiff] Mr. Broadhurst had previously appeared before the Board and had noted that the stormwater plan was not on file. Since any proposed action with respect to stormwater on the subject property will affect the Broadhurst property, Mr. and Mrs. Broadhurst are understandably concerned regarding that issue. Apparently, the Board took that matter into consideration and was also concerned at the hearing on the first application. In any event, the applicant was required to revise his application and resubmit it.
Since that time, I have reviewed the file myself, as you suggested. My client has also reviewed the file again. Nowhere in that file is there an original drainage report. It appears not to exist, despite an addendum. Moreover, the original drainage plan for the property should have changed substantially by now. Specifically, instead of one detention basin, there are now two. Additionally, a detention basin is located on the immediate sideline of my clients' property, raising numerous issues.
We are objecting to the hearing on June 9, 2003 because the entire application was not on file at least ten days before the hearing.
Despite plaintiffs' objection, the June 9, 2003 hearing proceeded as scheduled. At the hearing, plaintiffs' counsel again objected to the Blumberg application. After some colloquy between the attorney for the Board, members of the Board, and plaintiffs' counsel, the Board concluded that the stormwater management plan had, in fact, been located in the file and proceeded with the hearing.
At the hearing, plaintiffs' counsel cross-examined Blumberg's engineer David Stires extensively about the contents of the stormwater management plan. Additionally, plaintiff Jeffrey Broadhurst testified as to his concerns about stormwater damage to his property from Blumberg's proposed development.
On July 14, 2003, the Board engineer, Gerald D. Philkill, wrote a letter to the Board discussing the details of Blumberg's revised subdivision application. In that letter, Philkill brought the issue of the access easement to the Board's attention for the first time:
A variance from Section 100-47.1.E(1) of the Holland Township Land Use Code*fn2 will be required. This section requires that Open Space Parcels have an access strip a minimum of 35 feet wide with frontage on a public street.
Philkill's letter closes with the following paragraph:
[T]his is a brief review of the application as presently submitted. I have not conducted a thorough engineering review of the revised subdivision plans recently submitted, nor have I conducted a thorough evaluation of the stormwater collection system and stormwater management elements of this plan. Any approvals of this subdivision should be subject to a more complete engineering evaluation of the details of the plan which has been presented.
The July 14, 2003 meeting was closed to public comment. With respect to the open space access easement, the minutes of the July 14, 2003 meeting contain the following statement:
The Board Attorney stated that the open space must have public street access. . . . There was discussion of access to the open space located in the rear of the proposed lots. Elizabeth C. McKenzie, the Township's Professional Planner, suggested that there be an access easement between Lots 5.15 [sic] and Lot 5.16. The access easement is not be [sic] located on either lot, but is to be located between the two lots. [One Board member] expressed concern about there not being any access from Hawks Schoolhouse Road. The Board Attorney noted that since the County had rejected an offer of accepting this land,*fn3 the open space will be for the use of the homeowners in the subdivision and thus limited access is in order. The Board attorney stated that there should be a deed submitted for the open space and access to it. . . . The [Holland] Land Use Code requires that Open Space Parcels have an access strip that is a minimum of 35 feet wide with frontage on a public street. During further discussion of the access to the Open Space, the consensus of opinion of the Board Members was that a 20 foot wide access would be sufficient.
The Board Attorney will modify the Resolution to indicate that a 20 foot wide access to the Open Space will be sufficient. The approval is conditioned on the deeds for the Open Space and the access easement being reviewed and approved by the Board Attorney, Professional Planner and the Board Engineer.
Based on these minutes, we infer that the Board considered and granted the variance from the ordinance's access easement width requirement sua sponte.
Approximately one year later, the Board granted Blumberg's final major subdivision approval in a resolution dated July 12, 2004. On September 1, 2004, plaintiffs filed an action in lieu of prerogative writs, challenging the grant of subdivision approval. On January 12, 2005, the trial court dismissed plaintiff's complaint as untimely.
Plaintiffs sought appellate review after the trial court denied a motion for reconsideration. We reversed and remanded for the trial court to consider the merits of plaintiffs' case. Broadhurst v. Twp. of Holland Planning Bd., No. A-3892-04 (App. Div. March 23, 2006).*fn4
On remand, the trial court instructed the Board to submit a revised resolution, detailing its findings of fact and conclusions of law with respect to the grant of Blumberg's subdivision application. The Board adopted such a resolution on September 11, 2006, providing, in pertinent part, as follows:
WHEREAS, [Plaintiffs' attorney] Anthony Koester, Esq., sent correspondence dated June 5, 2003, to the Planning Board Attorney alleging that the Planning Board Secretary's file did not contain drainage reports submitted by the applicant and objected to the application proceeding at the June 9, 2003 Planning Board meeting; and
WHEREAS, at the June 9, 2003 Planning Board meeting, Anthony Koester, Esq., again objected to the Board's consideration of the application asserting that a drainage study was not included in the Planning Board Secretary's file as required under N.J.S.A. 40:55D-10(b); and
WHEREAS, in response to the objection raised by Anthony Koester, Esq., the Planning Board Chairman interrupted the Planning Board's consideration of the application; inspected the Planning Board Secretary's file; and acknowledged the presence of the drainage study in the file; and
WHEREAS, the Board Secretary indicated that the original report was also contained in the Board Secretary file; and
WHEREAS, the Board Chairman determined that the applicant had complied with N.J.S.A. 40:55D-10(b), and therefore, the Planning Board should continue its consideration of the application; and
WHEREAS, on March 10, 2003, April 14, 2003, and June 9, 200, David Stires, P.E., provided extensive testimony on behalf of the applicant regarding site engineering and stormwater drainage issues; and
WHEREAS, on June 9, 200, Anthony Koester, Esq., counsel for Mr. Blumberg,*fn5 conducted extensive cross-examination of Mr. Stires regarding site engineering and stormwater drainage issues; and
WHEREAS, on July 14, 2003, Gerald Phillkill, PE, the Board Engineer, indicated that the Township Ordinance required a 35 foot wide access strip to the open space parcel; and
WHEREAS, on July 14, 2003, the Board Members, based on their review of the exhibits and consideration of prior testimony pertaining to the limited use of the open space parcel, determined that a 20 foot wide access to the open space would be sufficient . . . .
The Planning Board specifically found that "[a]ll maps and documents pertaining to the application were on file and available for public inspection in accordance with the provisions of N.J.S.A. 40:55D-10b." With respect to the positive and negative criteria of the access easement variance, the Board found that:
A. As to Positive Criteria
9. The open space provided for in the Plan exceeds the open space requirements of the Township Ordinance.
10. A twenty-foot wide access strip to the open space lot is sufficient since the use of the open space will be limited to the homeowners in the subdivision.
B. As to Negative Criteria
1. The relief requested for the proposed development can be granted without substantial detriment to the neighbors' use and enjoyment of their lots or to their property values. The development as proposed is more beneficial to the neighboring lots and community than strict adherence to the provisions of the Ordinance. The lots are in harmony with lots located adjacent to the property and in the immediate vicinity.
2. The relief requested will not impair the intent and purpose of the Zone Plan and Zone Ordinance. To the contrary, for the reasons recited herein, the development was customized to this piece of property so as to promote the intent of our Land Use Ordinances and the Land Use Act.
Finally, as a condition of final subdivision approval, the Planning Board required that Blumberg comply with all of the recommendations made by the Board engineer in his July 14, 2003 letter.
On December 8, 2006, the trial court held a final hearing to assess the validity of the Board's revised September 11, 2006, resolution. At this hearing, plaintiffs' counsel conceded that Blumberg had submitted the stormwater management plan and that the plan was located in the file. Counsel argued, however, that the plan simply was not presented to plaintiff when he asked for Blumberg's documents.
With respect to the open space access easement, plaintiffs argued: (1) that the Planning Board erred when it raised the issue of the reduction of the easement's width without reopening the meeting for public comment; and (2) that the Board engineer's July 14, 2003 letter proved that he had not performed a thorough evaluation of the stormwater management plan.
In a memorandum of decision dated April 23, 2007, the trial court upheld the Board's actions. With respect to the access easement variance, the trial court deferred to the Board's weighing of the positive and negative criteria. The court also rejected plaintiffs' attack on the thoroughness of the engineer's analysis:
This contention ignores several facts. The Board had considered the matter already at three public hearings at which Mr. Philkill was present. During these three hearings there was the normal plan review process which was reflected in the Board's findings, cited above, that the developer had been more responsive than most to requests from the Board. Further, the full text of the engineer's comments relates to plot details, right of way agreements, driveway aprons, etc. It does not suggest rejection of the application or that there was any seriously missing information. Thus, his specifics with respect to engineering requirements and plat items set forth in his letter involve matters of detail.
The common sense of the letter is thus that these individual items are needed to be further corrected and fleshed out. There is no indication in Mr. Philkill's letter of any concern for the overall detention or other plans or any expression by him that he needed more information in order to make sure that they work. Thus the letter itself does not raise issues which would have required the Board to reopen the hearing. Nor do plaintiffs suggest any such defects resulting from their cross-examination. . . . .
Alternatively, implicit in the plaintiffs' complaint about the variance issue being raised after the hearing had been closed is a suggestion that the specific variance had to be noticed. However, the notice in this case*fn6 . . . demonstrates that this notice occupied a full column in the newspaper. It is an extraordinarily detailed notice. Thus, it more than sufficed to give anyone who read it a clear idea as to what is being requested, which is all that the statute requires.
N.J.S.A. 40:55D-11 only mandates that the nature of the matters to be considered be disclosed, not that every detail be disclosed. For this reason, omission of the particular variance via a general statement that other variances and design waivers may be requested is sufficient. In Perlmart v. Lacey Township Planning Board, 295 N.J. Super. 234 (App. Div. 1996) the Court definitively rejected the notion that each and every variance in an application had to be specified, so long as the general nature of the application was accurately set forth:
Plaintiff also contends that the notice did not specify all of the particular variances required. We do not tarry long with this claim because we did [sic] not believe the Legislature intended the required public notice to be that specific. Perlmart, supra, 295 N.J. Super. at 237, n.3.
Thus, the lack of notice of this particular variance did not void the application. Rather, the variance simply was a minor addition intended to insure compliance with the zoning ordinance.
Finally, the court rejected plaintiffs' argument that Blumberg and the Board violated the requirements of MLUL's subsection 10(b).
Aside from a dearth of case law, plaintiffs fail to demonstrate that the statutory scheme itself supports their claim that the Board had no jurisdiction to proceed on June 9. While failure to provide notice of a hearing is jurisdictional, the M.L.U.L. notice provisions are in a separate section, N.J.S.A. 40:55D-12, from that governing the conduct of hearings, N.J.S.A. 40:55D-10. The difference is substantial. The requirements in N.J.S.A. 40:55D-12 are accompanied by distinct, clear requirements as to whom notice is to be given, who prepares the notice and the contents of the notice. . . .
No such safeguards are contained in N.J.S.A. 40:55D-10b. Thus, there are no [ ] clear guidelines for any applicant to follow in the event documents are missing, assuming this to be the case as alleged. As a result, making jurisdiction turn on the existence of a document in the file will inevitably make jurisdiction dependent on such confusion as may have occurred here. . . . Surely the Legislature which made such careful provisions for notice of hearing did not intend jurisdiction to be defeated by cursory and informal file reviews.
We will first address plaintiffs' argument, grounded on an alleged failure by both the applicant and the Board to keep all documents for which approval is sought on file, and available for inspection to the public at least ten days before the scheduled hearing. N.J.S.A. 40:55D-10(b). We reject this argument and affirm substantially for the reasons expressed by the trial court. The record here indicates that Blumberg complied with the statutory requirement by timely filing the stormwater management plan. It is equally clear to us that the evidence shows that the Board placed the documents related to the plan on file, and available to the public for inspection.
We next address plaintiffs' argument challenging the Board's approval of the easement variance. We review the decision of the trial court in this respect using the same standards used by the court below in reviewing the actions of the Board. N.Y. SMSA, L.P. v. Bd. of Adj. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004) (citing Charlie Brown of Chatham v. Bd. of Adj. of Chatham, 202 N.J. Super. 312, 321 (App. Div. 1985)). We are bound to defer to the Board's findings of fact. Jock v. Zoning Bd. of Adj. of Wall, 184 N.J. 562, 597 (2005). In reviewing the Board's discretionary decisions, we reverse only if such authority is exercised in an arbitrary, capricious and unreasonable manner. Ibid.
Here, we again find ourselves in agreement with the analysis and ultimate conclusion reached by the trial court, and thus affirm substantially for the reasons expressed by the court in its memorandum of decision. In this context, we need not, and specifically do not reach defendants' argument that plaintiffs' objections are rendered moot by virtue of having sold their property while this appeal was pending.