July 19, 2011
KELLI DALRYMPLE, PLAINTIFF-APPELLANT,
PLANNING BOARD OF THE TOWNSHIP OF LAKEWOOD AND S&H BUILDERS, INC., DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1985-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 22, 2011
Before Judges Wefing, Payne and Hayden.
In 2007, plaintiff, Kelli Dalrymple, the owner of Lots 4.01 and 4.02, Block 252, in the Township of Lakewood, obtained approval from the Lakewood Township Planning Board (Board) for the subdivision of Lot 4.02 into lots 4.03 and 4.04. At the time, because the lots were less than 15,000 square feet each, connections to the municipal water supply were required if residential construction took place, as permitted in the R-12 zone in which the lots were located. Although that requirement did not appear in the Planning Board's Resolution 1567 approving the subdivision with conditions, and there is no evidence that the subject was discussed by the Board, a municipal water connection was indicated by the words, "Water to be provided by New Jersey American Water Company," on the approved subdivision map prepared on Dalrymple's behalf by the engineering, consulting and planning firm that she had retained. It was anticipated that sewerage would be accommodated in a septic system.
Thereafter, in April 2008, Dalrymple sold the two subdivided lots to defendant, S&H Builders, which commenced construction of a house on lot 4.04. Also, prior to the commencement of construction, Lakewood rescinded its requirement that municipal water be supplied to property of the size of the subdivided lots.
However, when it became apparent that S&H intended to install a well on Lot 4.03, and that the septic system on that lot would be within 100 feet of an undisclosed shallow unencased well on Dalrymple's property, as well as the well on Lot 4.04, thus failing to comply with regulations governing subsurface sewerage disposal systems, Dalrymple complained to the Ocean County Board of Health, which revoked the well and septic permits issued for Lot 4.03.
Following the Board of Health's action, on October 8, 2008, S&H filed an application with the Lakewood Planning Board for amended site plan approval, seeking to be relieved of any obligation to utilize municipal water, and for a bulk variance on Lot 4.04 as the result of its construction of a house on that lot that was set back 27.6 feet, not the required 30 feet from the street - a circumstance that S&H attributed to a mason's error in laying out the foundation. With respect to the water, S&H determined that the cost of the necessary 1000-foot connection to the Township's water supply would be prohibitive, given the very limited size of its planned development. It is noteworthy that construction of the connection by S&H would, as its side-effect, have provided access by Dalrymple to municipal water at nominal cost.
Initially, the Board determined to consider S&H's application administratively, without holding a hearing. However, following objections from Dalrymple, it scheduled a hearing, which neither Dalrymple nor her attorney attended. Following the hearing, which took place on February 17, 2009, the Board, by Resolution 1567A, granted the bulk variance pursuant to N.J.S.A. 40:55D-70c(2), deeming the deviation from the set-back requirements of the ordinance to be de minimis. It also conditionally approved the amended site plan. Among the conditions imposed, the Board stated: "The Applicant shall obtain approval for the proposed septic and well from the Lakewood Township Board of Health as well as any applicable State regulatory agency." As testimony at the hearing made clear, construction on Lot 4.03 was barred until such time as the required water and septic permits were issued, and issuance of those permits was by no means assured. However, as the Board Chair observed, that was S&H's "headache."
Following publication of the Board's resolution, Dalrymple filed an action in lieu of prerogative writs to challenge the Board's action. A non-testimonial hearing was held before Judge Vincent J. Grasso on June 10, 2010, after which he issued a comprehensive and thoughtful written opinion affirming the determinations of the Board. The judge's affirmance of the Board's grant of the c(2) variance from the Township's set-back requirements has not been challenged on appeal. We therefore focus on that aspect of his opinion that concerns the grant of site plan approval conditioned on the approval of well and septic system plans by the Board of Health. In that regard, the judge stated:
Water supply and sewer systems are under the purview of local boards of health operating under Title 23 of the New Jersey Statutes under the Water Supply and Sewer Systems in Realty Improvements Act, N.J.S.A. 58-11-23 [to -48].
Both parties agree the Board has the authority to approve applications conditioned on the approval of other agencies pursuant to N.J.S.A. 40:55D-22(b) which states, in pertinent part:
In the event that development proposed by an application for development requires an approval by a governmental agency other than the municipal agency, the municipal agency shall, in appropriate instances, condition its approval upon the subsequent approval of such governmental agency.
Plaintiff argues that under these specific circumstances it was inappropriate for the Board to approve defendant's application conditioned on permits from the Board of Health and the Department of Environmental Protection. Plaintiff maintained that due to the record of plaintiff's objection, the Board had a duty of inquiry into the appropriateness of the location of well and septic [systems] and [their] possible impact on the neighboring property owner.
It is the court's view that there would be no basis for the Board to limit the defendant's lawful development of the subject property. Due to the change in the Lakewood Development Ordinance, the city water restriction and requirement no longer applied. It was perfectly proper for the Board to approve the amended subdivision with the caveat that the applicant was required to get the necessary permits from the DEP and the Board of Health. These agencies possess the expertise necessary to insure the health and safety concerns lodged by the plaintiff. The parties represented at trial it is possible for a well and septic system to be installed on-site, but S&H would require a waiver of the 100 foot separation requirement from the Board of Health. It is entirely possible that this waiver may never be granted in which case the applicant will need to connect to city water in order to further develop the property. The Board was able to grant conditional approval which was a proper exercise of their zoning powers and is not found by this court to be arbitrary, capricious or unreasonable.
This appeal followed.
On appeal, Dalrymple makes the following arguments:
THE TRIAL COURT'S FINDING THAT THE BOARD'S GRANTING OF S&H'S APPLICATION FOR AMENDED FINAL SUBDIVISION WAS NOT ARBITRARY, CAPRICIOUS AND UNREASONABLE WAS CLEARLY ERRONEOUS WHERE S&H'S WATER AND SEWER PLAN FOR LOT 4. WAS IN VIOLATION OF N.J.A.C. 7:9A-4.3 AND S&H FAILED TO PROVIDE ANY INFORMATION PERTINENT TO THE PROPOSED PLAN FOR WATER AND SEWER ON LOT 4.03 AND LOT 4.04 AS RECOMMENDED BY THE BOARD'S ENGINEER.
THE TRIAL COURT CLEARLY ERRED IN FINDING THAT THE BOARD DID NOT UNLAWFULLY DELEGATE ITS AUTHORTITY IN GRANTING SUBDIVISION APPROVAL WITH CONDITIONS WHERE S&H'S CURRENT PLAN WAS IN VIOLATION OF N.J.A.C. 7:9A-4.3 AND S&H OFFERED ABSOLUTELY NO PLAN AS TO HOW IT WOULD REMEDY THE VIOLATION.
We affirm, substantially for the reasons expressed by Judge Grasso in his written opinion. We add only the following: Our review of the record satisfies us that a connection to the municipal water supply was not required once Lakewood amended its ordinances to eliminate that requirement. The resolution initially approving the subdivision contained no binding requirement that a municipal water connection be established; the only reference to municipal water appears in the plan submitted on behalf of Dalrymple. No evidence suggests that the reference should be construed as anything but an acknowledgement of then-existing law.
As a consequence, S&H's construction of a residence on Lot 4.04 was perfectly proper. Lake Shore Estates v. Denville Twp., 255 N.J. Super. 580, 591 (App. Div. 1991) (requiring that subdivision applications conform with existing zoning ordinances), aff'd, 127 N.J. 394 (1992). Once the prior municipal water supply ordinance was repealed, the Board lacked the power to require that S&H make the connection to the municipal water supply that Dalrymple seeks. William M. Cox & Stuart R. Koenig, New Jersey Zoning & Land Use Administration, § 16-6 at 432 (2011) (noting that conditions imposed on a land use application must be derived from provisions in the governing subdivision or zoning ordinances). While S&H may choose to make that connection if alternatives are lacking, it may, as an alternative, simply determine not to develop the property.
S&H's attention had turned to Lot 4.03 at the time that Dalrymple voiced her objections to S&H's plans. As the result of those objections, the Board of Health rescinded the water and septic permits applicable to Lot 4.03. It did not rescind permits for Lot 4.04, and as a result, that construction was permitted to proceed to its conclusion. The Board's amended resolution provided additional authorization for the work that had been undertaken at that site and was properly entered in that regard. Because S&H has determined that it is not economically feasible for it to extend the municipal water supply to Lot 4.03, the company faces the risk that it will not be able to develop that property as the result of the siting restrictions contained in N.J.A.C. 7:9A-4.3 - a risk that it recognizes.
Enforcement or waiver of the conditions contained in the regulation at issue falls within the purview of the Department of Environmental Protection, as delegated to the Board of Health, N.J.S.A. 58:11-28, pursuant to DEP standards for subsurface sewage disposal systems. See N.J.A.C. 7:9A-1.1 to -12.8. The Planning Board of the Township of Lakewood lacks both authority and expertise in this regard.
Dalrymple argues that S&H's site plan application to the Board was fatally deficient because it did not detail the means by which water and septic systems would be legally sited on the property. In support of that argument, Dalrymple cites Field v. Franklin Township, 190 N.J. Super. 326 (App. Div.), certif. denied, 95 N.J. 183 (1983). However, that case involved a large-scale planned urban development of 1332 townhouses and 1332 garden apartment units on a 396.5 tract. Id. at 328. No case holds that a developer of a single site must supply such detail to a planning board in order to obtain conditional site plan approval or the sort granted here.*fn1
Dalrymple also argues that statutory authorization for a grant of site plan approval conditioned upon approval by a governmental agency other than the municipal agency pursuant to N.J.S.A. 40:55D-22b can occur only in "appropriate instances," and this is not such an instance. In support of that argument, she relies on the Law Division decision in Morris County Fair Housing v. Boonton Township, 228 N.J. Super. 635, 645-46 (Law Div. 1998). In that case, Judge Skillman agreed with a municipal planning board that it would be inappropriate for it to give site plan approval for an affordable housing development when it could not analyze the applicant's storm water management plan until the DEP had passed upon issues concerning the safety of a dam on the property that was closely tied into that plan. Ibid. We find that decision to be distinguishable since there, as a practical matter, the board could not determine the adequacy of the site plan until it had received information from the DEP regarding the dam. Clearly, in that circumstance, approval prior to consideration of the DEP's opinions would have been premature. Here, the Board has not reserved any issue for further consideration following Board of Health or DEP review, but rather, it has referred a discrete issue to the entities with the authority to determine it.
As a consequence, we are satisfied that Dalrymple has failed to meet her burden to demonstrate that the Board's action in granting conditional site plan approval to S&H was arbitrary, capricious or unreasonable. Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296 (1965).