On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4236-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Baxter and Alvarez.
Plaintiff Sloo Investors, Inc. appeals a December 22, 2008 order affirming the denial by defendant Planning Board of the Borough of Tinton Falls (the Board) of plaintiff's request for a waiver from a flood plain ordinance. The Borough and Council of Tinton Falls are also named defendants. For the reasons that follow, we affirm.
Plaintiff's application for a waiver of the flood plain ordinance, Section 40-44(A) of the revised general ordinances of the Borough of Tinton Falls, was part of its application to develop Lot 54.01, which consisted of approximately twenty-one wooded acres.*fn1 In order to develop the property into eleven residential lots, plaintiff's plan required an elevated access road from an existing "stub street" over a flood plain to the developable portions of the land. On September 7, 2005, the Board determined that as part of its development approvals, plaintiff had to establish the basis for a waiver of the restriction against building on flood plains. Plaintiff was granted thirty days in which to "restudy the issue and come back before" the Board on the issue. On December 28, the Board denied plaintiff's waiver request, which effectively denied plaintiff major subdivision approval for the property. A resolution embodying the Board's decision was finally adopted on August 9, 2006. On September 18, 2006, plaintiff filed a complaint in lieu of prerogative writs seeking to reverse the Board's order, as well as compensatory and punitive damages.
On June 28, 2007, the trial court granted plaintiff's motion for a remand to the Board based on plaintiff's assertion that the Board in 1988 had approved a subdivision plan for the property which included a road through the flood plain. Thereafter plaintiff filed an amended complaint, alleging that the Board's restriction on the use of the property violated plaintiff's constitutional rights because it was an "impermissible taking of the property for public use and/or improper private use without just compensation."
A remand hearing was conducted by the Board on January 9, 2008. The Board determined that the 1988 resolution which granted preliminary approval simply did not indicate if the Board had actually considered the necessity of a waiver at all, and if so, what action was taken as a result. Furthermore, the Board concluded that the 1988 plan differed in significant respects from the current plan in terms of the manner in which a roadway would be constructed over the flood plain. The Board's decision to deny plaintiff's waiver application for the second time was memorialized on March 12, 2008. The trial court affirmed the Board's denial of a waiver after the remand proceeding on December 22, 2008.
Plaintiff is the contract purchaser of the property. Approvals for the development plans are a condition of the contract. The twenty-one-acre lot is bordered "by wetlands to the north, single-family homes and an assisted living facility to the south, single[-]family homes to the east, and the Garden State Parkway to the west." It is situated in an R-2 zone, meaning that residential development is permitted on the lot.
There are two tributaries on the property, the first of which "comes in the north" and "flows towards the northwest." It combines with a second stream coming in from the north and then "fall[s] off toward the south."
Plaintiff's development plan proposed the construction of an elevated access road with culverts through the flood plains in order to connect the stub road to the lots. The New Jersey Department of Environmental Protection (DEP) issued one or more permits to plaintiff regarding stream encroachment and crossing the wetlands. Plaintiff also had to obtain a waiver from the Borough, however, in order to construct a structure on a 100- year flood plain. According to Tinton Falls ordinance 40-44, the 100-year flood plain is determined by using the maps of the Federal Emergency Management Agency and the NJDEP as a base line and then conducting on-site evaluations. "On streams not identified by [these] maps, the [100-year] flood plain shall be as delineated by a developer's engineer and approved by the Borough Engineer and the State of New Jersey Division of Water Resources."
Plaintiff proposed a fifty-foot-wide roadway, approximately 1300 feet long, that was designed to run "in a roughly northwesterly direction from the existing stub across the flood plain." Sheet piles would be driven into the sides of this roadway, and fill and other materials placed so as to reach, at the highest point, eighteen feet above the bottom of the stream. Two culverts were required to allow water to pass through the wall beneath the road bed, thereby altering the present flow of the water in the flood plain. As the Board characterized it, the result would be akin to "the Great Wall of China."
Plaintiff's position is that because no testimony was offered to rebut its expert's proffered opinion that there were no alternatives to reach the developable portion of the land, none existed, rendering the property inutile when the Board denied plaintiff's application for a waiver. The Board disputes this, asserting that plaintiff's experts in fact did not deny that alternative roadways could be developed, although the result would be fewer buildable lots. The trial court found that the Board denied plaintiff's waiver application in part because it concluded that alternative means were available to develop the site that created less of a disturbance to the flood plain.
A member of the public testified during the hearing that his property was affected by any disturbances on that land, specifically, that sink holes would appear on his property and that of an adjoining neighbor. The Board heard testimony that the proposal would indeed alter the flow of the flood plain, cause a rise in the water levels during a 100-year storm, and essentially dam the water in an area of the Borough that had a history of water problems. The roadway, as designed, would require maximization of the DEP permit for the disturbance of the flood plain crossing. The maximum disturbance permitted by the DEP was .25 acres, or 10,890 square feet. According to one of plaintiff's experts, the construction of the roadway would require a disturbance of .2498 acres or 10,881 square feet. Any disturbance outside ...