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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...