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Howard Payne and Janet Payne v. Planning Board of the Township of Lakewood and Majestic Contracting

April 19, 2012

HOWARD PAYNE AND JANET PAYNE, PLAINTIFFS-APPELLANTS,
v.
PLANNING BOARD OF THE TOWNSHIP OF LAKEWOOD AND MAJESTIC CONTRACTING, LLC, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2920-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 27, 2012

Before Judges Simonelli and Hayden.

In this prerogative writs matter, plaintiffs Howard and Janet Payne challenge the decision of defendant Planning Board of the Township of Lakewood (Board) approving the application of defendant Majestic Contracting, LLC (Majestic) for preliminary and final major subdivision and preliminary and final major site plan approvals to construct seventeen townhouse units within three buildings on property adjacent to plaintiffs' property. Plaintiffs primarily contend that the Board erred in granting the application because the landscape buffer area requirements contained in the Township of Lakewood's Unified Development Ordinance (UDO) are zoning requirements, and Majestic's proposed deviations therefrom are subject to variance approval pursuant to N.J.S.A. 40:55D-70c. We disagree, and affirm.

We begin by reviewing the pertinent provisions of the UDO. The UDO's subdivision and site plan ordinances are contained in Articles VI, VII and VIII. Article VI, entitled "Subdivisions and Site Plans," contains rules for the review and approval of major and minor subdivisions and site plans. Section 18-601 permits the Board to grant exemptions and waivers for minor and major subdivision and site plan requirements and standards. Article VII, entitled "Provisions Applicable to Site Plans and Subdivisions," addresses procedural requirements for subdivision and site plan review by the Board.

Article VIII, entitled "Design Standards," contains subdivision and site plan standards. Section 18-803, entitled "Landscaping and Buffers," contains site plan requirements and standards for buffer areas. Section 18-803(A)(1) establishes the design requirements for buffer areas:

Buffer areas shall be developed in an aesthetic manner for the primary purposes of screening views. Buffer widths shall be measured perpendicularly to lot and street lines. No structure, storage of materials or parking of vehicles shall be permitted in a buffer area unless otherwise permitted herein. The standards for the location and design of buffer areas are intended to provide flexibility in order to provide effective buffers. The location and design of buffers shall consider the use of the portion of the property being screened; the distance between the use and the adjoining property line; differences in elevations; the type of buffer such as dense planting, existing woods, a wall or fence; buffer height; buffer width; and other combinations of man-made and natural features.

Section 18-803(B)(1)(c) establishes general standards for buffer areas:

All buffer areas shall consist of either grass or ground cover, together with a screen of live shrubs or scattered planting of live trees, shrubs or other plant material meeting the following requirements:

Trees shall be at least six (6) to eight (8) feet in height and two (2) inches in caliper when planted and be of a species common to the area, and listed on the approved plant species list incorporated herein, and be of balled and burlapped nursery stock and be free of insect and disease.

The section at issue here, Section 18-803(E)(2)(b), establishes the footage requirements for buffer areas:

Multi-family or townhouse adjacent to an existing single-family residential development or an area zoned for single-family residential land uses shall provide a buffer area of at least thirty (30) feet in width, as measured from the property line toward the proposed use. The Board may reduce the required buffer to fifteen (15) feet in width if the developer provides a dense landscaping screen. (Emphasis added.)

Article II defines a "buffer" as "[a]n area within a property or site, generally adjacent to and parallel with the property line, either consisting of trees, shrubs or other landscaping and/or berms, designed to continuously limit the view or control ...


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