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Mountain Valley Group, LLC v. Township of Berkeley Heights

August 13, 2009

MOUNTAIN VALLEY GROUP, LLC, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF BERKELEY HEIGHTS, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND THE PLANNING BOARD OF THE TOWNSHIP OF BERKELEY HEIGHTS, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2714-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 27, 2009

Before Judges Wefing, Yannotti and LeWinn.

Plaintiff Mountain Valley Group, LLC, (MVG) appeals from the August 19, 2008 order of Law Division upholding the denial by defendant Berkeley Township Planning Board (the Board) of MVG's application for subdivision approval regarding a 3.24-acre tract of land located in the Township of Berkeley Heights (the Township). MVG sought to subdivide the property into four lots for the construction of single-family homes. For the reasons that follow, we affirm.

MVG initiated proceedings respecting this property in April 2003, when it attended a concept review hearing before the Board to discuss informally its proposal to subdivide the property and to receive comments from the Board. At that time, the Board noted that the proposed subdivision would be difficult because of "the topography of the property. . . ." The property is "located off . . . Diamond Hill Road at the intersection of Old Colonial Road. . . . The site is wooded[,] . . . [and] heavily sloped. The site elevations . . . go from about 380 [feet] near the street to 490 [feet] . . . at the rear lot line[;] . . . much of the site is . . . in 20 percent or greater slopes."

On or about April 23, 2004, MVG submitted its application and plans for preliminary major subdivision approval. The Board held numerous public hearings on the application between September 1, 2004 and March 21, 2007. The major issues concerned: (1) the adequacy of the proposed access roadway for police, fire and other safety vehicles; (2) the need for blasting because, as plaintiffs' geological expert Frank Getchell reported, the entire tract is "underlain by Jurassic- age Preakness Basalt," which is "igneous rocks of volcanic origin"; and (3) the need for permanent netting "to deal with rock toppling and sliding" and the possible need for a retaining wall in light of "[e]vidence of slippage and parting of rock along joint (fracture) plains," as also noted by Getchell.

In response to some of these concerns, MVG's engineer Kevin G. Page submitted a modified application to the Board on February 8, 2006. Page explained that his revisions relocated the access road to a point "approximately 250 feet to the south[,]" which would reduce the "disturbance, the amount of cut and the amount of blasting for the road."

A fire official of the Berkeley Heights Volunteer Fire Department responded that the revised plan did not address his concerns, specifically that: (1) "[t]here [were] no provisions to turn a vehicle around"; (2) "[t]he 20 foot wide drive w[ould] not leave room for another vehicle to drive thr[ough] if a hose line [wa]s laid in the drive"; and (3) "[i]n the winter, with snow on each side from plowing[,] the above conditions would be greatly increased."

Township Engineer Joseph R. Venezia, submitted a report noting the following issues: (1) MVG needed to address the possible need for a variance, pursuant to N.J.S.A. 40:55D-35,*fn1 for the common driveway; (2) "a significant amount of land disturbance" would still be required "to provide access to the proposed four (4) lots"; (3) concerns relating to "the provision of adequate police, fire and emergency access via the common private driveway"; and (4) MVG needed to provide greater detail with regard to the proposed site construction, i.e.,

a) Provide the quantity of rock and soil anticipated to be removed from the entire site.

b) Provide details of the means of stabilizing the cut rock face along the proposed roadway.

c) Provide details of the detention basin grading and means of stabilizing the cut rock face.

d) For retaining walls exceeding four (4) feet in height, . . . submit design calculations including global stability calculations and details of construction.

At a Board hearing on February 15, 2006, MVG addressed the revisions in its subdivision plan. MVG also discussed the creation of a homeowners' association to deal with the maintenance of the roadway in the event that the Township did not assume responsibility for it. The Board raised numerous concerns as to how an association would deal with the costs of maintaining and repairing such a steep road, which would encounter "unusual" problems, such as erosion and/or rockslides.

MVG insisted that such an association would need only "insurance, maintenance and capital fund[s]," and that it could "actually function very easily." The Board remained concerned that such an association would need to have a procedure in place to ensure that the common driveway would be properly cared for.

Regarding the issue of emergency vehicle access, MVG presented the testimony of Elizabeth Dolan, a professional engineer specializing in traffic and transportation engineering.

Dolan opined that based upon her review of Page's site plans, "there [wa]s sufficient geometry designed into the intersection of the proposed road with Old Colonial [Road] to accommodate up to a . . . wheelbase 40 tractor truck articulated vehicle with a roll length of about 50 to 55 feet." Dolan opined further that the proposed cul-de-sac on the property would provide a "maneuvering area for that size truck," and stated that even if snow were present on the road following plowing, fire vehicles would still be able to navigate the proposed roadway.

David Zimmerman, a licensed professional planner, testified on behalf of MVG with respect to the need for a variance in light of the requirements of N.J.S.A. 40-55D-35. Zimmerman stated:

So if we can assume for the moment that [the] cul-de-sac is a public street -- and I realize that hasn't been solidified yet --and the common drive which is 20 feet would be comparable for maybe a rural lane . . . , we have four lots which would ...


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