On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2735-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Simonelli and Fasciale.
Plaintiff Bristow Merritt, LLC owns property located on the Briar Lake residential subdivision in Gloucester Township.
Plaintiff sought to vacate the decision of defendant Township of Gloucester Planning Board (Board) denying the application of the contract purchaser, plaintiff John Hooper, for preliminary major subdivision approval, variances and waivers for the development of single-family homes in the subdivision.
We hold that the Board acted arbitrarily, capriciously and unreasonably in denying both preliminary major subdivision approval with the conditions imposed by its expert and the waivers, but not in denying the variances. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.
The Briar Lake subdivision is located in Gloucester Township's R-3 zoning district, which permits single-family residential lots with an area of at least 9375 square feet and 30-foot front yard setbacks. Occupied homes, vacant lots approved for residential development, and open spaces are located in the subdivision.
The subdivision is adjacent to, but not part of, the former Gloucester Environmental Management Services (GEMS) Landfill, an environmentally contaminated Superfund site managed by the Environmental Protection Agency (EPA) and the New Jersey Department of Environmental Protection (NJDEP). Pursuant to a drainage easement the NJDEP has over a portion of the subdivision, the NJDEP erected a fence that severed the arc of a horseshoe-shaped road called Primrose Lane into two parallel dead-end streets. The fence prevents drivers from entering the easement area.
Bristow Merritt owns three vacant lots in the subdivision: Block 13999, Lot 1, which is 10.48 acres of woodlands, and Block 13901, Lots 57 and 58, which are approximately 65 feet by 125 feet lots located approximately 650 feet down the street from Lot 1. Lots 57 and 58 front Primrose Lane and are located at the end of one of the dead-end streets created by the easement's fence.
On August 1, 2006, Hooper, as contract purchaser, submitted an application for preliminary and final major subdivision approval to develop eighteen single-family homes on Lot 1 and a single family home on each of Lots 57 and 58. Hooper also proposed to build a cul-de-sac on Primrose Lane in order to avoid building a bridge over the NJDEP's easement to connect the two dead-end streets, which would also require the EPA's and NJDEP's involvement. Accordingly, Hooper requested front yard setback variances for Lots 57 and 58 of twenty feet and a lot-size variance for Lot 57 of 8357 square feet.
Hooper also requested several waivers from the preliminary subdivision requirements and performance and design standards, several of which were eventually resolved during the proceedings before the Board. The only waiver remaining for the Board's consideration concerned Hooper's request to make a monetary contribution instead of installing a tot lot for recreation. The Township's director/zoning officer and deputy director/planner had no objection to this waiver.
Due to the close proximity of the proposed development to the former GEMS Landfill, the Board's major concern was potential contaminated groundwater on the lots. Hooper's environmental engineer, Carl Bones, submitted an Environmental Site Assessment pertaining to Lot 1. Bones took four sub-surface soil samples from Lot 1 to test for the following dangerous groundwater materials: volatile organic compounds (VOCs), base neutral compounds, and priority pollutant metals. No materials were detected above applicable NJDEP limits. However, Bones concluded the groundwater beneath the property may be nevertheless "impacted" by the former GEMS Landfill.
The Board's engineer, John Cantwell, questioned whether Bones conducted the sampling protocol in accordance with the NJDEP guidelines. He was also concerned that in his report, Bones indicated that groundwater contamination was likely but he conducted no sampling "to determine whether the site's groundwater, surface water (and associated sediment) and air has been impacted by the [GEMS Landfill]." Accordingly, he recommended that Bones conduct groundwater, surface water, sediment and air quality sampling under the direction of the NJDEP. There is no municipal ordinance or subdivision standard requiring a developer to conduct such sampling as a condition of preliminary subdivision approval. Nevertheless, Hooper agreed to perform the additional sampling, but objected to the NJDEP's involvement.
Bones collected shallow groundwater, surface water and sediment samples in and around the area of the proposed development to determine the level of contamination from the GEMS Landfill. Some of the samples revealed VOCs and semi-volatile organic compounds (SVOCs) below the NJDEP's groundwater quality standard; however, concentrations of the metals aluminum, arsenic, iron, manganese and thallium were above those standards. Bones explained to the Board that the metals may pose a danger if the groundwater was ingested or used for bathing and he could not opine at that time whether it would be safe to eat vegetables planted in a garden on the lots.
Because the sampling revealed no VOCs or SVOCs in excess of the groundwater quality standards, Bones concluded that volatilization of organic compounds to the indoor air of the proposed homes is not expected. Bones did not address deep groundwater, claiming that this was ...