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Save Hamilton Open Space v. Hamilton Township Planning Board

November 7, 2008

SAVE HAMILTON OPEN SPACE, PLAINTIFF-APPELLANT,
v.
HAMILTON TOWNSHIP PLANNING BOARD, GRES AND KALUZNY LAND DEVELOPMENT, L.L.C., AND JOHN AND EILEEN HALLER, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1383-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 23, 2008

Before Judges Skillman, Graves and Grall.

On May 13, 2004, defendant Grez and Kaluzny Land Development L.L.C. (Land Development), the contract purchaser of a 7.68-acre parcel of land in Hamilton Township, Mercer County, obtained preliminary subdivision approval from defendant Hamilton Township Planning Board for a subdivision of seventeen lots, sixteen of which would be utilized for single-family detached residences and one of which would be utilized for a detention basin. This approval was subject to numerous conditions including condition x, which stated:

The plans shall comply with the recently adopted NJDEP Phase II Storm Water Regulations. The applicant shall demonstrate compliance with the new regulations.

On March 10, 2005, the Board granted Land Development final subdivision approval for its residential development project. This approval also was subject to numerous conditions including condition s, which stated:

The plans shall comply with NJDEP Phase II Storm Water Regulations. The applicant needs to demonstrate compliance. This will require revisions to the Stormwater plan to the outfall structure and an acceptable maintenance plan for the basin.

Plaintiff Save Hamilton Open Space filed an action in lieu of prerogative writs challenging the preliminary and final subdivision approvals granted to Land Development. One ground of its challenge was that Land Development's stormwater management plan failed to comply with the new stormwater management regulations adopted by the Department of Environmental Protection (DEP), N.J.A.C. 7:8-1.1 to -6.3, commonly referred to as the "Phase II" regulations.

The trial court rejected plaintiff's challenges and approved the preliminary and final subdivision approvals granted to Land Development. In rejecting plaintiff's argument that Land Development had failed to demonstrate compliance with the DEP Phase II stormwater regulations, the court stated:

This court finds the Board properly approved the major subdivision plan subject to specific conditions as permitted by N.J.S.A. 40:55D-22. Importantly, the Board recognized the need for the applicant to comply with storm water management issues. . . . Furthermore, the Board conditioned approval on review by specific outside agencies that address these issues. See N.J.S.A. 40:55D-22b.

If NJDEP review drastically changes the subdivision plan, the Board is within its authority to require the applicant to seek preliminary major subdivision approval.

On appeal from the judgment memorializing this ruling, plaintiff argued, among other things, that the subdivision approval was invalid because the Board had erroneously relied on other governmental agencies to review Land Development's final stormwater management plan. In addition, amici curiae New Jersey Audubon Society, Save Barnegat Bay and the Sierra Club argued that the trial court had erroneously assumed that another governmental agency would be responsible for approving the stormwater management plan.

We affirmed the judgment dismissing plaintiff's challenge to the subdivision approval granted to Land Development. Save Hamilton Open Space v. Hamilton Twp. Planning Bd., No. A-0066-05 (App. Div. July 14, 2006). In rejecting plaintiff's argument regarding the Board's reliance upon other ...


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