On appeal from Superior Court of New Jersey, Law Division, Cumberland County, L-250-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2008
Before Judges A. A. Rodríguez and Payne.
Plaintiffs, Carol Bell, Henry Sherk and Thomas Uhland a/k/a The Dutch Neck Group, appeal from the dismissal of their action in lieu of prerogative writs, in which they challenged a grant of site plan approval by defendant Hopewell Township Planning Board to defendant, Sherwood Forest Homes, L.L.C. (Developer), that permitted subdivision of a fifty-acre parcel of land and construction of ten homes, with a twelve-acre portion of the parcel to be donated to Hopewell Township for public recreation, as recommended by the Township's Environmental Committee. Plaintiffs claim that the agreement by the Developer to convey the land to the Township and the Township's agreement to accept that conveyance constituted an unlawful quid pro quo arrangement, and that unlawful contract zoning took place. Plaintiffs claim additionally that (1) there was no evidence that the Planning Board appropriately considered or granted bulk variances pertaining to the property; (2) the Planning Board's action violated the Township's master plan; and (3) the Planning Board's action otherwise violated the Township's zoning ordinances.
The record on appeal contains only two pages of a 127-page transcript of a hearing before the Planning Board, conducted on October 18, 2006, and six pages of an eighty-six-page transcript of a hearing before the Planning Board, conducted on December 6, 2006. It lacks copies of the Township's master plan and its ordinances as enacted.*fn1 Additionally, appellants have not supplied a copy of the site plan as initially proposed or as approved.
We understand, as the result of our review of the incomplete record in the matter, that the facts are as follows. In 2006, Developer, the contract purchaser of fifty acres of farmland adjoining the Cohansey River, known as the Adamucci tract, sought site plan approval from the Hopewell Township Planning Board for subdivision of the land into ten residential lots (nine of approximately one and one-half acres and one of more than six acres) and a thirty-four-acre deed-restricted parcel devoted to open space and an on-site stormwater collection and management basin.
The application was first reviewed by the Township's Environmental Committee, which proposed in a letter to the Planning Board of October 11, 2006, that an environmentally-sensitive portion of the thirty-four-acre lot, known to be a bald eagle foraging area bordering the Cohansey River, be conveyed by the Developer to the Township for use by the public.
On October 18, 2006, the application, together with the Environmental Committee's recommendation, was considered by the Planning Board. After a lengthy discussion of largely unknown content, the application was tabled, and revised plans of a nature that is not specified in the record on appeal were sought.
Minutes of a Township Committee meeting of November 8, 2006, suggest that the Planning Board requested the Township Committee to consider the Environmental Committee's recommendation and to determine whether it would accept the land in question. The minutes state:
The Planning Board in their review of the Application of Sherwood Forest Homes major subdivision for (10) lots in Block 78 discussed the Environmental Committee's review and recommendations. One recommendation was for the Township to take ownership of a portion of the property bordering the Cohansey River for recreation purposes. The Planning Board has requested that the Township Committee address this issue. Burt Doremus and Ken Strait of the Environmental Committee outlined the proposal to the Township Committee and explained the topics they addressed prior to making a recommendation: 1) sub-division, 2) preservation, 3) ownership of lot, 4) public access, and 5) what can be done in the future. They noted that Lot 10 is an irregular lot that holds the retention basin that will be maintained by the Homeowner's Association and the land is deed restricted. They recommended that a new subdivided lot be created, "lot 11,"*fn2 for the purpose of [a] public recreation area for wildlife observation. The Planning Board and the Developer are agreeable to the proposition.
The minutes reflect that, after an opportunity for public comment, the Committee reviewed letters of support from the New Jersey Audubon Society, the New Jersey Department of Environmental Protection's Division of Fish and Wildlife and a letter of review from the NJDEP stating that the development was not in freshwater wetlands, or in a transitional or buffer area. The Committee then passed Resolution 06-71 confirming the Township's "willingness to enter into an agreement to accept ownership" of the lot "for the purpose of recreation for the public."
On December 6, 2006, upon further consideration by the Planning Board, the proposed site plan was approved, conditioned upon subdivision of lot 11 into a deed-restricted storm water basin and lot 12 into a deed-restricted parcel to be conveyed to the Township. To permit that subdivision, the Board granted two bulk variances from frontage and building setback width requirements. No other variances were required, because the remaining plans all confirmed to the Township's zoning ordinances. ...