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Dowel Associates v. Harmony Township Land Use Board

403 N.J. Super. 1, 956 A.2d 349 (App. Div. 2008)

ZONING; MOUNT LAUREL — Because the Department of Environmental Protection has primary jurisdiction over waste discharge systems, a land use board cannot base its denial upon its own determination as to the feasibility of a proposed sewer management system.

A municipal land use board denied an application for preliminary major subdivision that would have permitted development of a residential project to satisfy the municipality’s housing obligation under a Mount Laurel fair share plan settlement. The settlement agreement included a recognition by both the applicant and the municipality that the sewer treatment capacity was inadequate to service the project, and a second round substantive certification to the municipality indicated that an on-site sewage treatment plant had been included in the municipality’s wastewater management plan but would not be built until the applicant was ready to construct its development, both at applicant’s expense. Essentially, the board’s denial turned on the feasibility of the sewage management system. The applicant appealed the denial.

The lower court appointed storm water and hydrogeological experts who generally concluded that the applicant had to develop standard operating procedures to address repair of potential troublesome sinkholes at the build site. Based on expert and lay opinions, the lower court reversed the board’s decision to deny the application and remanded the matter to the board for continued public hearings and ordered conditional subdivision approval if the applicant could acquire New Jersey Pollution Discharge Elimination System (PDES) permits from the New Jersey Department of Environmental Protection (DEP). The municipality further appealed, arguing that conditional approval was inappropriate.

The Appellate Division affirmed. It held that the lower court did not arbitrarily address the feasibility of the disposal field at the project site, and ruled that the PDES permit process would make a final determination whether the disposal field could safely accept waste over time. The Court noted that the intended project was the culmination of years of required fair share housing controversies, and therefore the project’s waste management system’s feasibility had to be judged by the DEP because it was the DEP that had primary jurisdiction in such matters.

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