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Previti v. Upper Township Zoning Board of Adjustment

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 2, 2009

LEO PREVITI AND MICHELLE PREVITI, PLAINTIFFS-RESPONDENTS,
v.
UPPER TOWNSHIP ZONING BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT, AND THOMAS TOWER AND ACTION SUPPLY, INC., DEFENDANTS-APPELLANTS,
ACTION SUPPLY, INC. AND THOMAS TOWER, PLAINTIFFS-APPELLANTS,
v.
UPPER TOWNSHIP PLANNING BOARD, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-94-07 and L-479-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 11, 2009

Before Judges Cuff, C.L. Miniman and King.

Plaintiffs Action Supply, Inc. (Action) and Thomas Tower appeal from the April 11, 2008 judgment affirming the decision of defendant Upper Township Planning Board (Planning Board) memorialized in its July 19, 2007 resolution, to recommend renewal of its mining license and site plan approval. The Planning Board also granted a variance from buffer requirements. We reverse the condition imposed on the buffer variance without prejudice to submission of further proofs before the Planning Board as to the efficacy of the dimensions imposed to address identified noise and dust conditions. In all other respects, we affirm.

The Planning Board recommended renewal of the mining license of Action to the Upper Township Committee, and further granted site plan approval of Action's mining operation at Block 549, Lot 110 and a variance from the buffer requirements, subject to certain terms and conditions including a 200-foot buffer with a twelve-foot earthen berm. By ordinance, a 500-foot buffer is required when the mining operation borders residences. Here, the first 100 feet of the buffer is derived from a restriction in the deed transferring title to Action and Tower in 1986. Within the second 100 feet, Action is required to construct an earthen berm twelve feet in height and at a width satisfactory to the Township Engineer to provide for an adequate slope to said berm with a 6 ft. high stockade fence built on the top of said berm and the top of the berm planted with 5 to 6 ft. Eastern Red cedar trees 10 ft on center as proposed in the Engineering Design Associates buffering plan with the applicant required to maintain and replace any such trees that die within a 5 year period.

Plaintiffs filed an action in lieu of prerogative writs to review this decision. They argued that the Planning Board erred in granting site plan approval conditioned on a 200-foot buffer with a twelve-foot earthen berm. They further contended a prior decision by the Upper Township Zoning Board of Adjustment--that mining operations on Lot 110 were a pre-existing non-conforming use--limited the buffer to 100 feet and the Planning Board lacked the authority to impose conditions such as the earthen berm, fence and vegetation.*fn1

Judge Valerie Armstrong issued an opinion on April 11, 2008, and an amended opinion on May 16, 2008. The judge held that the 200-foot buffer does not interfere with the prior non-conforming use status of Lot 110, that the Planning Board has express authority to grant variances and may place conditions on any variance. Finally, the judge held that the conditions imposed on the buffer variance are reasonable. Addressing these conditions, she wrote:

Having determined that no legal impediment lies in the way of the Planning Board's grant of a buffer variance to Action Supply, or with the conditions the board imposed, all that is left for the court to determine is whether the conditions were reasonably related to a legitimate purpose, and whether the Planning Board's decision was supported by substantial evidence. Both questions are clearly answered in the affirmative. Throughout the hearing, the Planning Board heard testimony from neighbors who stated that the mine, even in its current scope of operation, produces noise, dust, truck traffic, and other annoyances. Naturally, the expansion of excavation onto Lot 110 will aggravate the already-existing problems. Indeed, such concerns are exactly why the Township's mining ordinance requires buffers of 200 feet to property lines and 500 feet to dwellings. The conditions at issue in this case--the required berm, fence, and trees--are "reasonably calculated" to mitigate the Planning Board's, and the public's concerns.

Whether or not they are the most effective or least restrictive conditions is not at issue. They simply must bear a reasonable relationship to the detrimental effects of the buffer variance.

We affirm the April 11, 2008 order in all respects substantially for the reasons expressed by Judge Armstrong, except as to the reasonableness of the conditions imposed on the buffer variance. As to this issue, we remand for further development of the record.

The record clearly demonstrates that the residential neighbors expressed significant concerns about the noise and dust generated by plaintiffs' mining operation and the additional noise and dust anticipated by expansion of mining on Lot 110. It is in this context that neighbors suggested the creation of a berm to minimize noise and dust from the site. Between meetings of the Planning Board, plaintiffs crafted a plan with a five-foot earthen berm topped by trees and a stockade fence. Plaintiffs shared this plan with the neighbors and it was the subject of comment when site plan review resumed on May 17, 2007.

In the course of this hearing, a variety of heights were suggested for the berm, including eight feet, fifteen feet and even twenty-five feet. The Planning Board referred the issue of the height of the berm to the Township Engineer. By that time, the Planning Board and the objecting neighbors seemed to have settled on an earthen berm between twelve and fifteen feet in height. The height selected by the Planning Board reflects the opinion of the Township Engineer that a twelve-foot berm can be constructed in the 100 feet added to the existing 100-foot buffer and twelve feet is better suited for soil stabilization and tree planting and maintenance than a higher berm.

We do not question the ability of a planning board to impose conditions on a variance that are development specific and designed to mitigate specific conditions attributable to the use. Meridian Hosps. Corp. v. Borough of Point Pleasant, 325 N.J. Super. 490, 504 (App. Div. 1999), certif. denied, 163 N.J. 80 (2000); William M. Cox, New Jersey Zoning and Land Use Administration § 28-4.1 at 654 (2008). Any condition, however, must be reasonably calculated to address the problem or concern that required the imposition of the condition. Meridian, supra, 325 N.J. Super. at 504.

Here, the record simply addresses the issue of which height is best-suited for maintenance of the earthen berm. The record is bereft of any evidence that a twelve-foot berm, or any berm of any height, would resolve or mitigate the noise and dust complaints of the neighboring residential property owners. Rather, the Planning Board merely assumed that a twelve-foot earthen berm would resolve the noise and dust issues.

A twelve-foot earthen berm is a substantial structure. The five-foot earthen bern suggested by plaintiffs required a thirty-foot wide base. We assume from a calculation performed by the Township Engineer that the base of a twelve-foot berm would be at least sixty feet. A berm with these dimensions also requires an enormous amount of earth. Yet, the record is barren of any consideration of whether this structure, or any earthen berm for that matter, would have any impact on the noise and dust complaints of the neighbors.

Although the record demonstrates that the Planning Board attempted to address with care the concerns of the neighboring residential property owners and the needs of the mining operator, the absence of any evidence that a twelve-foot berm would ameliorate the noise and dust emanating from plaintiffs' mining site renders this condition arbitrary and unreasonable. Therefore, we remand this issue to the Planning Board for development of an adequate record concerning the appropriate height of the earthen berm.

Affirmed in part, remanded in part. We do not retain jurisdiction.


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