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Decker v. Borough of North Haledon Planning Board

A-4801-03T3 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; VARIANCES—A land use board can’t set environmental conditions when the authority to do so is vested in the Department of Environmental Protection, even if the board doesn’t trust that state agency to do its job properly.

A municipal planning board rejected a developer’s application to create a four lot subdivision that required two variances and an exception to the Residential Site Improvement Standards (REIS). The minimum lot size for a property within the municipality’s R-3 residential zone was 15,000 square feet, but the municipality required a larger lot size for properties with an average slope of more than eight percent. Since one of the lots had an average slope of eleven percent, the developer’s proposal was below the minimum square footage and required a variance. The board noted that purpose of requiring the extra square footage was for use of septic systems, but the developer intended to install a sewer line and not use a septic system. The second variance required by the developer pertained to one of the lots, which happened to be a corner lot. The municipal code required a thirty-five foot setback for corner lots, while the developer’s proposed corner lot only had a twenty-five foot setback. After the board members raised concerns about flooding, the developer modified its plans, instead proposing to build a house on the corner lot that would comply with the setback requirements. The developer also required an exception from the REIS standards to permit an offset intersection. The evidence presented at the hearing showed that the offset proposed by the developer would improve site lines. However, the board conditioned its approval of the variances on the developer’s agreement to stabilize the banks of the runway running through the property. The developer refused, agreeing only to do what the New Jersey Department of Environmental Protection (DEP) required as a condition for his stream encroachment permit. The developer would not agree to do anything not required by DEP and refused to ask for permission from DEP to stabilize the banks. Since the developer refused to agree to stabilize the banks, the planning board denied the application. The developer then sued the planning board, arguing that its failure to award the variances was arbitrary, capricious, and unreasonable. The lower court agreed and the planning board appealed. The Appellate Division affirmed, noting that, normally, a planning board’s decision is entitled to deference and will not be disturbed unless it was arbitrary, capricious or unreasonable. Here, the Court found the planning board’s decision to deny the application was based on the planning board’s mistrust and its fear that a state agency, the DEP, would not do its job, was improper. It noted that, while the planning board could appear before the DEP to raise its concerns with respect to the stabilization of the banks, it could not penalize the developer because it did not believe DEP would require stablization. The Appellate Division also found that the developer had met its burden of proof needed to get the requested variances.

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