On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2213-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, C.L. Miniman and LeWinn.
Montvale Cares, Inc. (Montvale Cares) is a non-profit corporation that objected to an application for development filed with the Zoning Board of Adjustment of the Borough of Montvale (Board). The applicant, United Water New Jersey (United Water), owns a 1.8 acre parcel in a residential zone that it currently uses as the site for a 1.5 million gallon water storage tank. United Water sought a variance pursuant to N.J.S.A. 40:55D-70d(2) to expand that non-conforming use by adding a pumping station and a storage tank and automated system for injecting sodium hypochlorite into the water supply. The Board denied the variance as to both projects by a vote of five to two. See N.J.S.A. 40:55D-70d (requiring five affirmative votes for approval of a use variance).
United Water filed an action in lieu of prerogative writs to challenge the Board's determination, and Montvale Cares intervened. The trial court concluded that the proposed expanded uses are inherently beneficial and that their benefits "far outweigh any negative impacts to the community or the zoning plan." Accordingly, the court granted the use variance and remanded for a hearing on site plan approval.
Montvale Cares appeals; the Board does not appeal but has filed a brief relying upon and supplementing the arguments presented by Montvale Cares. Because the record supports the Board's determination that United Water did not establish special reasons authorizing the variance for the pumping station, we reverse and reinstate the Board's denial of the variance as to that portion of the project. The Board's resolution does not, however, permit us to discern how it balanced the positive and negative criteria relevant to the storage and injection of sodium hypochlorite. Accordingly, we vacate the trial court's grant of that variance and remand to permit the Board to reconsider and explain its reasons for denying approval of that project.
United Water is a public utility and the Board of Public Utilities (BPU) has "general supervision and regulation of and jurisdiction and control over [United Water's] property, property rights, equipment, facilities and franchises" to the extent necessary to carry out that agency's statutory responsibilities. N.J.S.A. 48:2-13a. United Water's application for development concerns a property consisting of about 1.8 acres, which is situated in a single-family residential zone in Montvale. Since 1960, with the approval of the BPU, the property has been used as the site of a 1.5 million gallon water storage tank. When this application was filed, the use was not authorized by the zoning ordinance, and while this application was pending, the zoning ordinance was amended to provide that this existing use is conditionally permitted in all non-residential zones but "not permitted in any residential zones." Code of The Borough of Montvale c. 128, § 9.10.2.
With the existing tank, United Water serves all of Montvale other than an area known as pressure district fifty (PD-50), which is at an elevation too high to receive water from the tank without pumping. United Water presently serves its customers in PD-50, between 200 and 300 hundred residences, without pumps by delivering water from United Water New York, which has a supply at a higher elevation in Rockland County, New York. In addition to the residences in PD-50 that receive water from New York, there are other homes in PD-50 that use water from private wells.
United Water sought a variance to expand its use of the property by adding a pumping station and a storage tank for sodium hypochlorite to treat the water leaving the tank. The two expansions address distinct issues.
First, the pumping station would permit water delivery from the existing storage tank to United Water's customers in PD-50 and water delivery at a higher pressure to customers in other areas and the fire department. To that end, United Water proposed erecting a building to house three pumps that would operate on a regular basis as well as redundant features - a fourth pump to operate in the event of malfunction, and a generator to be used in the event of power outage.
United Water considers the pumping station important to its provision of a continuous supply of quality water to current customers in PD-50. United Water's arrangement with United Water New York is approved by the New York Department of Environmental Conservation and conditions United Water New York's obligation on "prior fulfillment of its existing obligations for the bulk supply of water to current municipal corporations and contract entities."*fn1 United Water admits that it has not received any formal notice that United Water New York will be unable to meet the needs of PD-50, but based on informal communications, United Water believes that United Water New York's performance is at risk because of significant developments in Rockland County that are depleting its water surplus.
United Water also contended that New Jersey's standard for permissible arsenic levels is more demanding than the New York standard, which may create a problem in the future. It acknowledges, however, that water obtained from United Water New York has so far been in compliance with New Jersey standards.
United Water also acknowledged that the pumping station needed to serve PD-50 could be placed on another site if United Water incurred the expense to purchase other property through a private sale or condemnation approved by the BPU, which United Water would not get unless it could not use property it already owned. United Water indicated that a regulation calls for placement of pumps above ground where feasible, but it admitted that it has obtained approval to place pumps underground ...