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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 Also, prior to the commencement of construction, Lakewood rescinded its requirement that municipal water be supplied to property of the size of the subdivided lots.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 ...