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Clarke v. Hopewell Township Planning Board

December 15, 2008

WILLIAM S. CLARKE AND WENDY W. CLARKE, PLAINTIFFS-APPELLANTS,
v.
THE HOPEWELL TOWNSHIP PLANNING BOARD, THE LEWIS CLINIC FOR EDUCATIONAL THERAPY, INC., AND PRINCETON TEN SHEEP FARM LIMITED LIABILITY COMPANY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3052-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 24, 2008

Before Judges Wefing and R. B. Coleman.

Plaintiffs William and Wendy Clarke appeal from a judgment entered by the trial court dismissing their complaint in lieu of prerogative writs and upholding a resolution of the Hopewell Township Planning Board (the "Board"). After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiffs own property located on 944 Cherry Valley Road in Hopewell Township. Defendants Princeton Ten Sheep Farm LLC ("Princeton Ten") and The Lewis Clinic for Educational Therapy, Inc. ("Lewis Clinic") own adjoining parcels which also front on Cherry Valley Road and are within two hundred feet of plaintiffs' property. Princeton Ten owns Lot 9, which consists of 37.20 net acres, and Lewis Clinic owns Lot 17, which consists of 27.18 acres. Both parcels are in Block 15. Both Princeton Ten and Lewis Clinic have the same principal, Marsha Gaynor Lewis.

On July 27, 2006, an application was submitted to the Hopewell Township Planning Board for a minor subdivision, consisting merely of a lot line adjustment between Lots 9 and 17. The effect of the proposed adjustment was to increase Lot 17 from 27.18 net acres to 44.88 net acres and reduce Lot 9 from 37.20 net acres to 15.99 net acres.

This was the third application for minor subdivision which had been submitted to the Planning Board with respect to these two parcels. The first application proposed the creation of four lots from these two parcels, and the second proposed the creation of three lots. These two earlier applications did not proceed because they were deemed incomplete in several respects. The third and final application, which was complete when submitted, did not involve the creation of any new lot but merely adjusted the lot line between these two parcels.

At the time of the application, Lot 9 contained a single family residence and some outbuildings, and Lot 17 was completely undeveloped. Both lots would remain fully conforming after the lot line adjustment although one shed on Lot 9 would not comply with the one-hundred-foot sideline requirement of Hopewell's zoning code. The applicant agreed to move the shed if the minor subdivision were granted. Thus, no variances were needed or requested in connection with this subdivision application.

No proposal for development on either parcel was submitted as part of the subdivision application. Thus, there was no question of site plan approval. The only issue before the Board was whether the application to adjust the lot lines should be granted. Both the Township planner and engineer testified they had no opposition to the application.

Several nearby property owners, however, including plaintiffs, did oppose the application. They presented a planner as an expert witness in opposition. It is clear from reviewing the transcript of the hearing before the Planning Board that nearby residents were concerned about proposed future development on the land, in particular, the possibility that a school for children with learning disabilities would be placed on the land. The opponents' planner expressed concern that the manner in which the lot lines were proposed to be redrawn would result in one of the lots being irregularly shaped. This, she asserted, created the potential for hardship variances being requested in the future if the property were to be further subdivided in connection with development of the land. The attorney for the applicant informed the Board that the lines were drawn so as to accommodate the concerns of the bank which was going to provide financing in connection with any subsequent attempt to develop the land. After discussion, the Board voted unanimously to approve the application.

Plaintiffs thereafter filed a complaint in lieu of prerogative writs, challenging the board's action. Plaintiffs appeal from the trial court's judgment in defendants' favor. On appeal, they raise the following arguments:

Point 1:

The Trial Court erred in holding that the Planning Board had jurisdiction to grant approvals for a subdivision that was not for a purpose specified in the MLUL. Because this subdivision was not for "sale or development" and did not come within any ...


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