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Northgate Condominium Association, Inc v. Borough of Hillsdale Planning Board

January 24, 2011


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2305-08.

Per curiam.


Argued October 26, 2010

Before Judges Carchman, Messano and Waugh.

This appeal by plaintiff Northgate Condominium Association (Northgate) challenges the preliminary site plan approval granted to defendants Caliber Builders, Inc. and Golden Oaks Homeowners Association, Inc. (collectively, Caliber) by defendant Borough of Hillsdale (Hillsdale) Planning Board (board). The approval granted conditional approval for the development of age-restricted, single-family, detached houses in Hillsdale. Thereafter, plaintiff filed an action in lieu of prerogative writs in the Law Division and following a trial de novo, Judge Menelaos Toskos, in a comprehensive written opinion, affirmed the board's approval. Plaintiff appeals, and we affirm.


We set forth the facts adduced at the hearing before the planning board and at the Law Division. Defendant Golden Orchards Associates, LP (Golden Orchards) is the owner of property located on the tax map of Hillsdale as Block 506, Lot 1, and the tax map of the Township of Washington (Washington) as Block 2101, Lots 3 and 7 (together, the property). The Hillsdale property is located in the R2 Zone, which permits age-restricted senior housing as a conditional use. The property is bounded on the north by Ell Road and is located on a site known as Golden Orchards, apparently a farm previously operated as a fruit orchard. Northgate is located immediately south and down gradient of the property and is situated at a lower elevation than the property.

Caliber filed an application for subdivision approval, preliminary site plan approval and conditional lot approval, pursuant to N.J.S.A. 40:55D-67, for the development of thirty-seven single family, age-restricted houses, with thirty-one units within Hillsdale and six units in both Hillsdale and Washington, as well as a minor subdivision for one single family home in Washington, not part of the adult community. The units would operate as a homeowners or condominium association, which would own and maintain the sewer system and private roads. Caliber did not seek any variances.*fn1

On April 20, 2007, notice of Caliber's application and a May 2, 2007 hearing was mailed to property owners within 200 feet of Lots 1, 3 and 7, and notice was also published on April 21, 2007, but the meeting did not take place. Defendants mailed a second notice to property owners within two hundred feet of Lots 1, 3 and 7 and published notice on June 25, 2007 and June 29, 2007, respectively, for a hearing scheduled July 10, 2007. Notice was also provided for all subsequent hearings by way of mailings and publications, and the board mailed and published a November 2, 2007 notice for a November 15, 2007 hearing, as well as published a separate December 7 2007 notice for a December 14, 2007 hearing.

Although there was only one lot in Block 506, the notices, mistakenly identified the property as "Lot 3Q, Block 2101, Township of Washington and Lots 1.01 and 1.02, Block 506, Borough of Hillsdale . . . ." Furthermore, outside of the notices published by the board, Lot 7, Block 2101 in Washington was not listed as part of the property. The notice stated, though, that the property was "commonly known as Golden Orchards (south of Ell Road)[.]" At the hearings, plaintiff did not object to the description of the properties in the notice, but only that property owners within 200 feet of Northgate were also entitled to notice of the hearings, as they were in a drainage area downstream of the property to be developed. The board rejected this argument, and no other objection was made.

The critical and contentious issue in dispute was Caliber's proposed stormwater management plan. Under the current conditions, "the runoff generally occurs in three (3) distinct sub-basins - Musquapsink Brook to the West, a[n] intermittent man-made ditch in the Central portion servicing approximately 2 upstream acres, and an intermittent, unnamed wetland/intermittent stream within the Eastern portion, which services approximately 5 acres upstream."

Alex Zepponi, Caliber's site engineer, who at the time of the hearings worked in public works and civil engineering, testified as an expert witness. He prepared a two-volume storm water management report (the storm water report) regarding Caliber's application, dated August 10, 2007, from which he derived his testimony.

Zepponi was familiar with the site and described the preliminary site plan, the conditional use requirements and the proposed minor subdivision of the development. He described the site as having a "rolling topography," where, "as you proceed west, the property drops off into this wetland area. It then rises somewhat higher than the beginning and then drops off in the middle slightly, rises again as you go further west and then drops off ultimately to the Swapsink Brook." He described in detail the nature and direction of the flow as well as the nature of the property. Caliber's application proposed specific drainage facilities to manage storm water runoff. He outlined, in detail, the steps taken by Caliper to address the detention facilities, filters, infiltrators and described the discharge pattern:

- Roof discharge from homes in each of the three (3) sub-basins are directed to individual infiltrator systems, reintroducing groundwater in the immediate vicinity of impervious interception.

- Other discharges are directed to each of three (3) 'local' detention/infiltration system[s] to reintroduce those flows to groundwater within each of the three (3) sub-basins, similar to that which occurs under existing conditions.

- Discharge from the western scour hole, flows over hundreds of feet undisturbed, undulationing upland and wetland areas, allowing significant opportunity for absorption, adsorption, infiltration and biological activity prior to introduction to Musquapsink Brook.

- Discharge from the two (2) acre off-site portion of the central sub-basin enters an open vegetated drainage ditch and discharges through a six (6) foot wide culvert (previously approved as a 24 inch pipe more than capable of conveying the generated flows) under the road into the previously identified depression, which is capable of containing the entire 10 year event, offering the same environmental benefits as above, prior to discharge off-site to an existing, man-made ditch and piped system currently flowing through the downstream townhouse development.

- Discharges from the western half of the east sub-basin were diverted from the south to the north (contrary to grade), such that those discharges would run through to a significant on-site wetlands at that location and be subjected to all the benefits of overland/wetland areas offers to being conveyed south and off-site to an existing man-made ditch and piped system through the adjacent townhouse development.

According to Zepponi, the water discharge under the proposed site plan would be "less than what occurs under the existing conditions." At the hearings, he further explained:

The drainage on the eastern section of the property would drain into this extension of pipes and catch basins, . . . pick up the drainage almost to the central section, carry it into the . . . manufactured water quality devices. They're essentially chambers that are . . . filled with oversized Brita filters.

At first blush, water quality storm, if you recall, run down the pavement, intercepted by the catch basins and, before it gets deposited into detention structure, it goes through these Brita filters. The filters have to be replaced. They need to be inspected. There's a whole program in terms of maintenance and reporting of, the home owners' association would be required, by [the New Jersey Department of Environmental Protection (DEP)], to show that they have done in terms of checking them. They're supposed to be checked after each storm and what they have done in terms of replacing them and maintenance.

And, there are programs that are set up where outside firms will come in, they'll check them, clean them and/or replace them. That's all part of the DEP process.

Once it leaves these water quality basins, it goes into the underground detention. So, they take care of the water quality. This larger pink box, which is hundred feet of 60 inch pipe, double barreled, that is perforated so that it also infiltrates, after the water goes in, infiltrates. What isn't infiltrated at the easterly end is regulated by an outward control structure. So, you have two pipes, 60 inches in diameter and that outlet control structure might have a hole in the bottom that's 3 inches, perhaps another hole halfway up that's 6 inches. And, that's the only water that could get out that eventually discharges into Ell Road and reaches the culvert. Those discharges, in terms of peak volumes, peak velocity, peak runoff rates are less than what occurs under existing conditions.

Zepponi concluded that Caliber's proposal satisfied several requirements of the Hillsdale Stormwater Management Ordinance (SMO). He was also confident that Caliber's application would be approved by the DEP because Caliber's prior subdivision application for the same site was approved by the DEP using the same methodologies.

There was conflicting testimony from plaintiff's expert, John Thonet, a licensed engineer who specializes in civil engineering and environmental planning. Thonet previously submitted a report to the board regarding Caliber's earlier application, and his new report to the board was "quite similar.

Only the numbers would be bigger." Thonet stated that Caliber's proposal "relies very heavily on putting water back in the ground[,]" and plaintiff would be the "recipient" of an increase in ground water.

Thonet challenged Zepponi's calculations and opinions. Thonet also stated that Zepponi's hydrological analyses were incorrect; he claimed that Zepponi miscalculated and misidentified the topography and terrain surrounding the drainage areas. Thonet explained, with regard to one drainage area, that "most of the land use there [Zepponi] assumed was a . . . wood grass combination." However, "most of this area actually isn't like that. Most of this area is what we would call woods. And woods ha[ve] a lower rate of runoff . . . than a woods grass combination." Thonet also stated that Zepponi did not correctly identify the drainage lines separating drainage areas and did not include all off-site drainage areas in his analysis, especially the drainage area at Northgate; as a result, Caliber "doesn't really know what the total flows are, where, where it leaves Northgate." As a result of these alleged errors, Zepponi's analysis conducted in the storm water report was "wrong." Succinctly stated:

So, what my point is on this, this whole existing analysis is that it's nonsense. There is no -- all of the numbers, all of the calculations, everything is complete, utter nonsense and it doesn't tell you or me or the applicant or anyone anything about how much water is leaving ...

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