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Dalrymple v. Planning Board of the Township of Lakewood

A-6135-09T2 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; APPROVALS — A land use board may condition its zoning approval upon a subsequent approval from another government agency without, itself, ruling on the appropriateness of whatever application the zoning applicant would have to submit to the other approving agency.

A landowner obtained approval from a municipal planning board for a subdivision, but connections to the municipal water supply were needed if residential construction were to take place. Although that condition did not appear in the board’s subdivision, and there was no evidence that the subject was even discussed by the board, a municipal water connection was indicated by words on the approved subdivision map prepared on the landowner’s behalf by its own engineering, consulting, and planning firm. It was anticipated that sewerage would be handled by a septic system.

The landowner then sold the two divided lots to a builder and construction on a house commenced. Prior to the start of construction, the municipality rescinded its requirement that municipal water be supplied to properties of the size of the subdivided lots. However, when it became apparent that the builder intended to install a well on its lot, and that the septic system on that lot would be within 100 feet of an undisclosed, shallow, unencased well on the landowner’s property as well as too close to a well on an adjacent lot, thus failing to comply with regulations governing subsurface sewerage disposal systems, the landowner complained to the County Board of Health. It revoked the well and septic permits.

Following the Board of Health’s action, the builder filed an amended site plan approval application with the planning board, seeking to be relieved of any obligation to utilize municipal water, and for a bulk variance for a house closer than the required distance from the street, a circumstance that the builder attributed to a mason’s error in laying out the foundation. With respect to the water supply, the builder claimed that the cost of connecting to the municipal water supply would be prohibitive, given the very limited size of its planned development.

Initially, the board decided to consider the builder’s application administratively without holding a hearing. However, following objections from a neighboring homeowner, it scheduled a hearing. Neither the homeowner nor her attorney attended the hearing. Following the hearing, the board granted the bulk variance, 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 new conditions imposed, the board required that the builder obtain approval for its proposed septic system as well as from the municipality’s Board of Health and from any applicable State regulatory agency. As testimony at the hearing made clear, construction on the lot was barred until such time as the required water and septic permits were issued, and issuance of those permits was by no means assured.

The neighbor filed an action in lieu of prerogative writs to challenge the board’s action. A non-testimonial hearing was held before the lower court. It resulted in a “comprehensive and thoughtful” written opinion affirming the board’s determinations. The lower court’s affirmance of the grant of the variance from the municipal set-back requirements was not challenged on appeal. Thus, in the appeal that followed, the Appellate Division focused on the aspect of the lower court’s opinion that concerned the granting of site plan approval conditioned on the approval of well and septic system plans by the Board of Health. The neighbor argued that 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.

The Appellate Division agreed with the lower court that the planning board acted appropriately in conditioning its approval upon a subsequent approval from another governmental agency. Additionally, the neighbor argued that the builder’s site plan application was defective because it did not detail the means by which water and septic systems would be legally sited on the property. However, in affirming the lower court’s ruling, the Court noted that no prior case had even held that a developer of a single site must supply such detail to a planning board in order to obtain conditional site plan approval of the sort granted here.

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