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N & K Ventures, LLC. v. Alloway Township Planning Board

A-0242-07T1 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING — A land use board can consider the possibility that an applicant will be building additional housing units on that part of its parcel located in an adjacent community, even though no such application has been made, and in doing so, can consider the projected size of the entire project as a factor in determining what requirements may be imposed on the part of the project located within its own municipality.

A property owner sought to subdivide a parcel, zoned for agricultural use, into twenty-five lots. Except for two, they were to have single-family houses. The owner’s land straddled the border of two municipalities. The municipal planning board rejected the owner’s application on the grounds that there was no viable plan for road access to connect the proposed development to the rest of the municipality and that there was no viable stormwater management plan. The board also found that the proposal failed to include a fifty-foot buffer between residential subdivisions and property zoned for agricultural purposes and that there was no septic plan as required by New Jersey Department of Environmental Protection (DEP) regulations.

The board’s rejection was largely because the property straddled the border. It noted that road access and the stormwater basin both were to be located in the adjacent municipality. It also noted that the property owner’s plan to subdivide the agriculturally zoned land for residential use in the adjacent municipality triggered the requirement for statewide septic plan approval and also required that the buffer between agricultural and residential developments be on both sides of the border. In an action brought by the owner against the board, the lower court found that the owner had failed to satisfy the notice requirement for a variance which was required for a proposal to develop agriculturally zoned properties and that, as a result, the board had no authority to approve the proposal. It also found that because the proposed development in the two abutting municipalities would have exceeded fifty housing units, its septic plan required DEP approval.

On appeal, the Appellate Division noted that municipal boards are given deference due to a local board’s familiarity with local conditions. It pointed out that the owner did provide adequate notice to all interested parties but determined, in disagreement with the lower court, that it was not required to list every possible variance request in order for the board to have authority to review and application. The Court agreed with the lower court’s finding that the owner’s proposed buffer zone did not satisfy the municipality’s ordinance because the buffer was required to run along the entire lot line and that the property owner’s revised buffer zone still left gaps in the municipality’s portion of the property.

The Court also found that the board reasonably concluded, from the evidence on the record, that the owner planned to subdivide its property on the other side of the municipal border and that the total number of units would likely have exceeded fifty housing units. On that basis, the Court determined that the board rightfully rejected the proposal due to a lack of a DEP approved septic plan as statutorily required for developments of more than fifty units. The board’s rejection of the proposal on the basis that an adequate stormwater management was never presented also was found to be reasonable. The Court pointed out that the municipality had encountered flooding issues in the past and, according to the available information, the proposed stormwater basin to be built on the other side of the municipal border would have hindered the municipality’s ability to manage, maintain or repair the basin if necessary. Thus, based on the Court’s findings and conclusions, the board’s decision to reject the property owner’s development proposal was affirmed.

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