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Hooper v. Township of Gloucester Planning Board

2011 WL 2672021 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; SUBDIVISIONS; VARIANCES — Requests for preliminary subdivision approval and requests for variances are two separate issues and should be considered separately; further, land use boards are obligated to assess subdivision applications with respect to public health and welfare issues only in terms of whether a proposed subdivision plan conforms with municipal ordinances which, on their own, advance public welfare.

A subdivision was located in a R-3 zoning district – it permitted residential family lots. It was next to an environmentally contaminated superfund site managed by the United States Environmental Protection Agency (EPA) and by the New Jersey Department of Environmental Protection (DEP). A limited liability company owned three vacant lots in the subdivision. On behalf of the limited liability company, a contract purchaser submitted an application for subdivision approval to develop family homes. The contract purchaser also requested several variances for the lots along with several waivers from the preliminary subdivision requirements and from the performance and design standards. The only unresolved concern was the potential of contaminated groundwater on the lots. An environmental engineer performed a few tests for dangerous groundwater material and detected no materials above applicable DEP limits, but acknowledged that the groundwater beneath the property could have been impacted by the former landfill.

The contract purchaser fulfilled the zoning board’s various recommendations, including doing groundwater, surface water, sediment, and air quality sampling. The samplings revealed no volatile organic compounds or semi volatile organic compounds in excess of the groundwater quality standards. The environmental engineer concluded that there was no human health risk from the soil or groundwater and no risk of vapor intrusion. The contract purchaser agreed to many other of the board’s conditions and recommendations. Nonetheless, the board voted to deny the application entirely. The board reasoned that the applicant had failed to provide all of the necessary information the board needed to make a reasoned decision that would be in the best interest of the public health, safety, and welfare to grant the requested approvals and found that the applicant had failed to satisfy the positive and negative criteria variance.

The contract purchaser and property owner challenged the board’s decision, but the lower court affirmed the variance denial, reasoning that there was very little testimony regarding the variance. It also affirmed the board’s denial of preliminary subdivision approval, reasoning that the board had made a reasonable request that the information be provided and that the decision was neither arbitrary nor capricious.

The contract purchaser and property owner appealed, arguing that the lower court had failed to differentiate between the application for preliminary subdivision approval and the variance request. They also argued that the lower court had failed to apply the appropriate standard to their application for preliminary major subdivision approval and that the board’s denial was arbitrary, capricious, and unreasonable.

The Appellate Division held that the preliminary subdivision approval and the request for the variances were two separate issues and should have been considered separately. It also found that a planning board is obligated to assess applications in light of the public health and welfare only in terms of whether a proposed subdivision plan conforms with municipal ordinances which, on their own, advance public welfare. Ultimately, denial of a subdivision approval must be based on a specific failure to meet the applicable subdivision or zoning ordinance, and should not be based on generalizations to the effect that standards of land use had not been met. Planning boards are also required to issue a statement of the reasons behind their decisions.

In this case, the board had denied the preliminary subdivision approval because the contract purchaser failed to provide information needed for the board to determine whether the proposed development was in the best interest of the public’s health, safety, and welfare. The contract purchaser did not provide information about trenching which could possibly have displaced contaminated groundwater. However, a land use board is not allowed to deny the preliminary subdivision approval just because of general welfare conditions. Here, there was no evidence of any danger to human health. Even the board’s expert concluded there was no danger. In fact, the contract purchaser followed the board’s expert’s recommendations. According to the Court, the contract purchaser’s preliminary subdivision application met the municipality’s ordinance and subdivision standards. In fact, the Court believed the contract purchaser had gone well beyond the municipality’s standards. As a result, the Court reversed the lower court’s ruling, and remanded the case to the board to grant the preliminary subdivision approval subject to the conditions recommended by the board’s expert.

The Appellate Division next addressed the variances requested by the contract purchaser. In order to obtain a “c” variance, an applicant must demonstrate that such a variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinances. The record did not show any testimony or evidence fulfilling the statutory criteria. Therefore, the Court affirmed the board’s denial of the variance request.


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