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Norian v. Planning Board of the Borough of Alpine

A-3163-04T1 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; SITE PLANS—While a land use board has the authority to impose appropriate conditions, including obtaining needed approvals, permits, and easements, it has no authority to deny site plan approval just because those items are not obtained in advance.

A municipality’s “wastewater disposal policy generally required the use of on-site [sanitary sewer] systems, except for properties bordering neighboring communities, which were permitted to connect to the sewerage disposal systems in those communities if they were willing to accept the effluent.” A developer’s seven-unit townhouse development did not border a neighboring community. The developer was seeking preliminary site plan approval for a project that, itself, was the result of a Mount Laurel settlement agreement by which the property in question was to be rezoned to permit construction of the units. “Initially, all parties contemplated an on-site system to service the development.” The Department of Environmental Protection (DEP), however, found “several technical deficiencies” in the developer’s application. According to the Court, all parties, including the municipality, were now on notice that the developer was experiencing difficulty in obtaining DEP approval. Then, the DEP refused to approve an on-site disposal permit because of an active spring under the property in addition to running water on both sides of the property. These conditions made the property continuously saturated. All of this took place before the Mount Laurel settlement agreement was reached, but despite extensive discussions, the final form of the settlement agreement “was silent on the issue of sewerage disposal. It contained no provision requiring an on-site system, nor did it prohibit connection to an off-site system.”

The developer’s preliminary site plan application requested no variances or design waivers. Its plan did not provide for on-site sewerage disposal because of the DEP’s prior position. Instead, it called for a “4,700 foot two-inch force main that would connect with the nearest available line in” an adjacent community. That community had agreed to the connection. That line was to be placed under public roads and no other property owners along the route could connect to it. Maintenance of the line would be the responsibility of the homeowners association that would govern the project.

The planning board denied the application, concluding “that the project complied with the applicable zoning regulations but that the Property could not safely be developed as proposed due to naturally existing conditions,” namely the “high water table” which prevented “the use of conventional septic systems for the number of units proposed.” The planning board also expressed its concern that the off-site system might not be approved by the neighboring community, the county or the DEP.

The developer appealed, contending that the board improperly denied its application based on the board’s speculation that the developer could not obtain necessary approvals for the off-site system. The lower court ruled in favor of the developer, concluding “that any perceived difficulties in the ability of the applicants to obtain approval should have resulted in a conditional approval rather than denial.” The municipality and its planning board appealed, but unsuccessfully. The Appellate Division accepted the premise that “[d]iscretionary decisions of local land use boards are presumptively valid, [and] [c]ourts may not substitute their judgment for that of the municipal body unless it is proven that the board’s action was arbitrary, unreasonable or capricious.” On the other hand, it recognized that a court is only obligated to “grant deference to a planning board ... if the [zoning] ordinance confers discretion on the board.” Here, the developer’s application conformed in all respects to the zoning ordinance. While the board “had the authority to impose appropriate conditions, including obtaining needed approvals, permits, and easements, ... it had no authority to deny the site plan because those items were not obtained in advance.”

During the course of the proceedings, the planning board adopted a resolution that was in compliance with the lower court’s order. In it, it granted preliminary site plan approval, but “set forth numerous conditions to which the approval was subject.” The matter returned to the lower court for further proceedings because the developer “contested the legality and reasonableness of many of the conditions.” Shortly before trial, the municipality adopted its “resolution expressing its adherence to the provisions of its Master Plan that prohibited connections to off-site sanitary sewer systems for all locations in the municipality, including [the developer’s], except those bordering adjacent municipalities.” The lower court believed that this action was contrary to the reasonable expectations of the parties at the time of the settlement agreement. It held that, at the time of the settlement agreement, the municipality was well aware of the possibility of an off-site connection and was well aware of the “technical feasibility of extending infrastructure” to the site. Consequently, the connection to the neighboring municipality’s system “was not a brand new issue. It wasn’t a major surprise.” Further, at no time prior to the planning board hearings did the municipality “ever contend that an off-site sewer option for [the] development was precluded by the settlement agreement.” Further, the municipality accepted payments from the developer and enjoyed “the benefits of the Judgment of Repose.” When the municipality appealed this aspect of the lower court’s decision, the Appellate Division held that it was satisfied with the lower court’s findings and thought there was sufficient evidence “that the possibility of an off-site sewerage system was within the contemplation of the parties when entering into the settlement agreement and was not precluded by the agreement.” The developers “bargained for the right to construct seven market-rate townhouses,” and the municipality “had a duty of good faith and fair dealing to perform its part of the agreement in accordance with the settlement.”


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