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Save Hamilton Open Space v. Hamilton Township Planning Board

A-1795-07T2 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; STORMWATER PLANS — A general permit issued by the Department of Environmental Protection to a developer pertaining to soil erosion, does not confirm that the developer is in compliance with stormwater regulations; therefore, a land use board must make its own determination as to whether a developer’s plans conform to those regulations.

A developer purchased a parcel of land intending to subdivide it for the construction of sixteen single-residence homes and a stormwater detention basin. The municipality’s planning board approved the developer’s proposal on the condition that the developer conform to recently revised state stormwater regulations. An environmental advocacy organization brought an action challenging the board’s preliminary and final subdivision approvals, arguing that the developer’s plan did not comply with the revised stormwater regulations. The lower court rejected the organization’s argument and affirmed the board’s decision. This was affirmed on appeal. The matter, however, was remanded for a determination on the questions of whether the developer’s stormwater plan was being properly reviewed and whether the public had had an adequate opportunity to be heard.

The developer never obtained approval for its stormwater plan from the New Jersey Department of Environmental Protection (DEP) or from any other state agency. The planning board soon afterward posted a notice on its website that it would hold a remanded public meeting on the developer’s proposal and stormwater plan, and denied the request by the organization’s attorney to reschedule the meeting because of such short notice. At the meeting, the organization’s attorney argued that there never had been an adequate review by the DEP of the developer’s proposal. Following the meeting, the board again approved the developer’s proposal. The organization brought a second action against the board, arguing that the short meeting notice given by the board violated New Jersey’s public meetings law and its land use statutes, and that the board’s refusal to reschedule the public meeting was arbitrary, capricious, and unreasonable. The lower court again affirmed the board’s decision.

On appeal, the Appellate Division found that the general permit issued by the DEP to the developer pertained to soil erosion and did not say that the developer was in compliance with the revised stormwater regulations. It also found that the municipal officials who were required to determine whether the developer’s plans complied with the revised stormwater regulations had failed to do so. On that basis, the matter was again remanded to the planning board for a determination of whether the developer’s plan conformed to the revised stormwater regulations. According to the Court’s decision to remand, the board was required to give adequate notice to the organization of the remand hearing, and to allow the organization to present its own expert testimony and to cross examine any of the developer’s expert witnesses.

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