On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1496-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
Plaintiff NAR Farms, LLC, commenced this action seeking relief in lieu of prerogative writs after the planning board denied its application for subdivision approval. The trial judge rejected some of the grounds for denial but upheld the board's determination to the extent it was based on its concerns about environmental contamination on the property. We reject NAR's argument that these environmental concerns fell within the primary jurisdiction of the Department of Environmental Protection (DEP) or that the board was required to grant subdivision approval conditioned upon DEP approval.
NAR is the contract purchaser of property subject to split zoning, with portions in the R-6 Low Density Residential Zoning District and portions in the C-3 Commercial Zoning District. NAR proposed a subdivision into fourteen lots: twelve lots for the construction of single-family dwellings; one lot for open space and a stormwater management basin; and one lot, encompassing that portion of the property within the C-3 zone, for future commercial development. No variances were required, but NAR requested eight waivers from the board.
The hearing commenced on March 3, 2009. At its conclusion, NAR sought a continuance so it could submit an environmental impact report. On May 5, 2009, the board heard testimony and considered the reports of NAR's engineer and the board's engineer, as well as other evidence, and denied the application for numerous reasons, including: the number of waivers sought by NAR; the alleged negative impact of the subdivision upon adjacent owners; the existence of endangered species on the property; and the contamination existing on the portion of the property in the C-3 zone.
NAR thereafter filed this suit, and the judge determined that all reasons for denial were arbitrary, capricious or unreasonable except for one: the board's concern about the contamination on the commercially-zoned portion of the property. On that ground, the judge entered judgment in favor of the board, and NAR appealed, arguing in a single point:
THE [DEP] HAS PRIMARY JURISDICTION REGARDING TESTING AND REMEDIATION OF CONTAMINATION ON THE COMMERCIAL ZONED PORTION OF THE PROPERTY SUCH THAT THE DEFENDANT BOARD WAS REQUIRED TO GRANT PRELIMINARY MAJOR SUBDIVISION APPROVAL CONDITIONED UPON DEP REVIEW AND APPROVAL OF FURTHER TEST RESULTS AND REMEDIATION OF CONTAMINATION IF REQUIRED.
We reject this argument and affirm.
There is no doubt that the municipality was entitled to deny subdivision approval because of its concerns about contamination. A municipal ordinance specifically provides that "[l]and which the approving authority finds to be unsuitable for the intended lot(s) . . . [because of] other features which can reasonably be expected to be harmful to the health, safety and general welfare of the present or future inhabitants of the development and/or [sic] its surrounding areas shall not be subdivided and site plan shall not be approved unless adequateand acceptable methods are formulated by the applicant to solve the problems by methods meeting this chapter and other regulations." As a result, NAR was required to sustain its burden to overcome the board's concerns. Kenwood Assocs. v. Bd. of Adjustment of City of Englewood, 141 N.J. Super. 1, 4-5 (App. Div. 1976).
The board found the testimony of NAR's expert was "confus[ed]" and left "many loose ends." Indeed, the expert also could not rule out the possibility that contaminants had entered the groundwater and migrated to the residential portion of the proposed subdivision. The board was entitled to deny the application on this ground.
NAR argues, however, that any justifiable concerns may be addressed through subdivision approval conditioned upon DEP approval. In rejecting that contention, we conclude that the trial judge correctly distinguished our decisions in Dowel Associates v. Harmony Township Land Use Board, 403 N.J. Super. 1 (App. Div.), certif. denied, 197 N.J. 15 (2008), and W.L. Goodfellows & Co. of Tumsville, Inc. v. Washington Township Planning Board, 345 N.J. Super. 109 (App. Div. 2001), and properly followed the approach outlined in Field v. Mayor & Council of Franklin Township, 190 N.J. Super. 326 (App. Div.), certif. denied, 95 N.J. 183 (1983).
In Field, we recognized that "a municipality cannot guide the use and development of lands in this state if fundamental elements of a development plan are left unresolved before preliminary approval, leaving them instead for an unspecified later day." Id. at 332. As a result, we held that certain elements of a plan "have such a pervasive impact on the public health and welfare in the community that they must be resolved at least as to feasibility of specific proposals or solutions before preliminary approval is granted[,]" and "[i]f the applicant fails to provide sufficient information on the fundamental elements of his plan, preliminary approval should be denied." Id. at 332-33. In Dowel and Goodfellows, we recognized a different approach where the applicant has provided a specific plan and method for dealing with a matter that may ultimately require further action or permission from another entity but otherwise presents for the board a specific understanding about how it will deal with that problem. See Dowel, supra, 403 N.J. Super. at 33 (distinguishing Field by recognizing that Dowel had "presented a specific approach for sewage treatment and disposal, rather than three different choices"); Goodfellows, supra, 345 N.J. Super. at 118 (distinguishing Field because the ...