On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1166-05.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Collester and C. L. Miniman.
The Harmony Township Land Use Board (Board) and Phillipsburg Riverview Organization (PRO) appeal from an order of the Law Division entered on May 21, 2007, which "reversed" the February 2005 resolution of the Board denying plaintiff's application for preliminary major subdivision approval to permit development of a residential project known as River Walk (or Riverwalk) on plaintiff's 185.227 acre parcel. The Law Division "remanded" the matter to the Board for entry of an order granting plaintiff "conditional subdivision approval" within sixty days if its "revised Storm[-]water Management Plan . . . corrects the technical deficiencies identified in the report of the court-appointed Storm[-]Water Management expert," or, alternatively, plaintiff "secure[d] a waiver" from the New Jersey Department of Environmental Protection (DEP) regarding "the infiltration requirements" of the DEP's Storm-water Management Rules, N.J.A.C. 7:8-1 et seq.*fn1 The order also permitted the Board to "condition its preliminary major subdivision approval upon issuance of a New Jersey Pollution Discharge Elimination System Permit" ("NJPDES") by the DEP.*fn2
Appellants contend that the Board's denial of the application was supported by the record and that the trial court erred in reversing that denial.*fn3 PRO further contends that the trial court erred in concluding that the Board should have delegated to the DEP the determination regarding "feasibility" of the proposed on-site sewage disposal system, and that "feasibility" is uniquely a matter of local decision making. PRO further asserts that affordable housing issues should have been referred to the Council on Affordable Housing (COAH), not the DEP.
In February 1990, plaintiff and Harmony Township entered into a "settlement agreement and stipulation of dismissal" of plaintiff's litigation which had contested Harmony Township's "housing element and fair share plan." The agreement followed mediation with COAH under the Fair Housing Act (FHA), and was filed in support of the municipality's petition to COAH for substantive certification. Pursuant to the settlement agreement, the Township agreed to rezone plaintiff's property to permit the development of an inclusionary project on the terms and conditions set forth in the agreement, which project would "completely satisfy the Township's [then-]current Mount Laurel housing obligation determined by COAH." The agreement set forth the details of the anticipated inclusionary project, and provided that the Township "agrees that Dowel's applications for development will be expeditiously considered by the Harmony Township Planning Board, and that the time constraints and deadlines imposed by the Municipal Land Use Law [MLUL], N.J.S.A. 40:55D-1, et seq., will be adhered to, except as provided in the Affordable Housing Ordinance." To that end, plaintiff also agreed to timely respond to all requests for additional information made by Planning Board members or professional staff to facilitate that review. The agreement further specified that "[n]otwithstanding anything herein to the contrary, the Harmony Township Planning Board retains all lawful authority to consider and act upon all applications for development made to it by Dowel, and to exercise its judgment and discretion as provided under the [MLUL]."
The settlement agreement also included a recognition by both parties that "inadequate sewer treatment capacity exists in the Township to service the Project." The agreement outlined a preferred plan for an off-site waste treatment plant, the cooperative efforts expected from plaintiff and the Township to pursue that plan, and the cooperation expected for considering "another specific alternative" to provide adequate sewer capacity to the project. Those efforts included the Township's agreement "to seek an amendment of the municipal Wastewater Management Plan (WMP) to reflect" the planned off-site wastewater treatment plant. The Township also agreed "to diligently prosecute any action in condemnation or amendment to the WMP, or both if required." Plaintiff agreed to assume all the costs and expenses associated with any amendment of the WMP necessary for the project. As set forth in the agreement, the agreement was filed with the Warren County Clerk for recording.
The project did not proceed for about ten years because of concern about sludge operations on neighboring property. Upon resolution of that problem, on June 1, 2000, the township petitioned COAH for substantive certification, and COAH granted second round substantive certification to Harmony Township on October 2, 2002. The resolution granting substantive certification expressly noted that an on-site sewage treatment plant had been included in the Township's wastewater management plan (which had been amended pursuant to the settlement), which was not expected to be built "unless and until Dowel was ready to construct its development and at Dowel's expense." The resolution did not mention anything more about the nature of the proposed on-site sewage treatment except that "the site has access to appropriate water and sewer infrastructure" consistent with DEP standards and that "Dowel Associates has awarded contracts for the site development and for the on[-]site sewer[-]treatment plant."
The MLUL provides, in part, that "[t]he governing body may by ordinance require approval of subdivision plats by resolution of the planning board as a condition for the filing of such plats with the county recording officer[.]" N.J.S.A. 40:55D-37(a). Pursuant to that authority, Harmony Township has enacted an ordinance, Chapter 148 of the Code of the Township of Harmony, entitled "Subdivision of Land."
The MLUL further provides:
An ordinance requiring approval by the planning board of either subdivisions or site plans, or both, shall include the following:
b. Provisions ensuring: . . . .
(3) Adequate water supply, drainage, shade trees, sewerage facilities and other utilities necessary for essential services to residents and occupants[.] [N.J.S.A. 40:55D-38.]
Pursuant to that authority, section 148-12A of the Harmony Township municipal code lists numerous requirements for plats for minor subdivisions, which the ordinance incorporates by reference to establish the same requirements for major subdivisions. Those requirements include:
(15) Documentation of feasibility of an adequate method of sewage disposal.
For preliminary subdivision approval applications, section 148-13 requires the following additional preliminary plat information:
(5) Proposed sanitary sewer system, in plan and profile.
(a) All proposed sanitary sewers with sizes and gradients.
(b) All proposed pumping stations, force mains and other special facilities.
(c) An engineer's report in compliance with the requirements of the [DEP].
(d) If the site is to be served by an individual sewage disposal system, a copy of the report required for percolation or permeability tests and soil logs therefor shall be submitted. [Added 5-3-1988 by Ord. No. 0:88-6; amended 9-4-1990 by Ord. No. 0:90-16]
A separate section, 148-14, setting forth requirements for "improvement and utility plans" requires additional data concerning:
H. Sanitary waste disposal system.
(3) If on-site disposal is proposed, typical lot layout, indicating location of system with reference to house and water supply; and detailed drawing of proposed sanitary waste disposal facility.
Section 148-21, dealing with utilities, further requires that each proposed lot shall be proposed to be served by public water supply and sewerage disposal systems or alternate capable of meeting all local, county and state specifications and standards; provided, however, that securance of necessary permits, approvals and/or clearances shall be the responsibility of the developer, and subdivision approval shall convey the approval regarding utility systems proposed by the developer. Lack of such approval may, however, be grounds for disapproval of the application.
Article VI of the Township Code deals with "Environmental Impact Statements" (EIS). Section 148-30 requires applicants to file an EIS for all preliminary major subdivisions, and section 148-33 contains the required "contents" for each EIS. Section 148-33 of the ordinance further provides:
G. Disposition by the Board. The Board shall review the information furnished in the environmental impact statement in the context of the overall design of the proposed development and the relationship of the proposed development to the environment. The information is to be used solely to help ensure that the proposed development will cause no reasonably avoidable damage to any environmental resource.
Finally, section 148-35 contains the Board's standards for reviewing the EIS, and states that the Board shall take into consideration the effect of the proposed project upon all aspects of the environment, including but not limited to sewage disposal, water quality, water supply, preservation of trees and vegetation, protection of water courses, protection of air resources, protection of aquifers, protection of public lands and their uses and ecosystems and the creation of any nuisance factors. . . . The Planning Board shall reject the proposed project of the environmental basis [sic] only if it determines that the proposed project will result in appreciable harm to the natural environment, has not been designed with a view toward the protection of natural resources, will place an excessive demand upon the total resources available for such project and for any future projects or will result in reasonably avoidable damage to any environmental resource.
Within that legal context, the Board had authority and was authorized to consider Centex's proposal to develop plaintiff's property. Centex filed its application seeking preliminary major subdivision approval to construct the River Walk project on plaintiff's property in March 2003. The Board held hearings on the application at the Board's regular monthly meetings on seventeen dates from August 21, 2003, through December 16, 2004.
As the appeal before us focuses primarily on the feasibility of the on-site sewage disposal system and stormwater management issues, we develop the record concerning those subjects. The proposed development was to consist of "136 Estate homes, 137 Patio homes [smaller single-family homes], and 42 Village Green units," which consist of 21 duplexes. The Village Green units are divided into 36 units which are low income, nine of which are senior citizens, and there are also six senior citizen market units within the Patio homes area."
During the Board's hearings, Centex presented testimony of fourteen witnesses, including several professional engineers including Raymond J. Tully from Melick-Tully and Associates (Melick-Tully) and several from the Schoor DePalma Engineers and Consultants (Schoor DePalma).
Melick-Tully had prepared a subsurface investigation and geologic evaluation report, dated February 28, 2003, designed to meet the geologic evaluation requirements of Harmony Township's ordinance. The report described the geologic formations present, including a "large thrust fault through the lowest part of the site separating two blocks of folded Kittatinny rock." The report discussed both "Pseudokarst Features" and "Karst Activity," the latter including five sinkholes, and seven voids and/or soil-filled cavities in the rock, found in investigatory probes. It set forth several conclusions and recommendations, including the following:
2) The entire site is underlain by carbonate rock fractures which are susceptible to solutioning. Remedial work will be required to correct existing sinkholes, and the correction of sinkholes as they occur during construction will be necessary. An area of the site which we believe is more susceptible to future sinkhole formation is generally located in the north central portion of the site, an area where some solutioning, soft soils, and excessive grout have been observed. A suitable proactive measure in this area would include the use of deep dynamic compaction to densify zones of loose soils, or collapse small voids where they exist. In other areas of the site, especially where existing sinkholes are present, grouting may be required should sinkholes recur.
Under the heading "Site Design Criteria - Limestone Areas," the Melick-Tully report explained:
Changes in the surface runoff patterns that allow water to migrate to the subsurface are the most frequent causes of sinkhole development during and following construction. The site design details should do everything possible to minimize discharge of water into the subsurface. While no amount of engineering or remedial earthwork can guarantee that sinkholes will not develop in areas of carbonate geology, careful site planning and construction can minimize the potential for their development.
The report therefore recommended that storm drain pipes include "water-tight gaskets to prevent leakage," and roof drains should pipe water away from the proposed structures, either directly to the storm drainage system in sealed pipes or to a swale.
Ponding was to be avoided during construction, and the report suggested that "the storm[-]water detention basin should be lined with at least twelve inches of compacted silty/clayey soils to prevent recharge to the subsurface." The report also recommended "a program of dynamic compaction prior to construction" in the "area of concern related to future sinkhole development."
In his October 2003 testimony, Raymond Tully, President of Mellick-Tully, explained that the subject property was "not a perfect site, but by no means is it an awful site." He thought it could be developed "provided that prudent means are used." He noted that Melick-Tully's work assignment was to assess the site relative to the improvements "exclusive of the waste water treatment plant" and its related land area because Schoor DePalma was designing that plant and was to prepare a report regarding that subject. Having reviewed Schoor DePalma's work, Tully concluded that Schoor DePalma "did a pretty extensive investigation there and didn't report any significant problems in the explorations. That being the case I think you can build what they're proposing to build." Later in his testimony, Tully reinforced that view: "It's nothing that's extraordinary. This is pretty typical for areas underlain by carbonate rock, and there are sites that are significantly worse than this. But it just indicates that there is, you know, you've got to be careful, you've got to implement these design recommendations."
Tully described the means by which he thought a significant sinkhole he described could be remediated, and added that it was not so bad that it was in the basin area, because the excavation would expose the area and the issue could be addressed. If the hole were filled with grout and a double liner installed in the basin, Tully considered it "extremely unlikely," but not impossible, that a sinkhole problem would remain at that point. He agreed that, until a spot is fixed and a liner installed, water can get in the subsurface and another sinkhole could form next to it, "[a]nd water's the mechanism that triggers it." The sinkholes develop where there is "a lot ...