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Sloo Investors, LLC v. Planning Board of the Borough of Tinton Falls

A-2782-08T1 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; SUBDIVISIONS — A land use board is justified in denying a waiver from a flood plain ordinance where the applicant’s proposal to avoid a flood plain would create substantial safety and maintenance issues.

A developer sought to develop a lot of approximately twenty-one wooded acres into eleven residential lots. It needed a waiver of a flood plain ordinance, and a hearing was conducted by the municipal board of adjustment.

The development plan proposed the construction of an elevated access road with culverts through the flood plains in order to connect an existing road to the lots. The culverts were needed to allow water to pass through a wall beneath the road bed. This would alter the existing flow of water in the flood plain. The developer’s expert did not deny that alternative roadways could be developed, although this would have resulted in fewer buildable lots. A member of the public testified that his property would be affected by the road because sinkholes would develop on his property and on that of an adjoining neighbor. The board also heard testimony that the construction would cause a rise in water levels during extraordinary storms because the structure would act as a dam in an area that had a history of water problems.

The board denied the application. This effectively denied major subdivision approval for the property. One of the board’s concerns was the developer’s responsibility to maintain the road once constructed, in that it would be in an area difficult to reach, potentially isolating homeowners during a storm.

The developer filed suit seeking to reverse the board’s order. On the merits, the lower court affirmed the denial, finding the board had denied the waiver application partly because it had concluded that alternative means were available to develop the site that created less of a disturbance to the flood plain.

On appeal, the Appellate Division agreed with the lower court that the board was justified in denying the waiver because the roadway would create substantial safety issues due to the height and length of the proposed structure over the flood plain, and that it would be the only connector roadway to the proposed development. The Court was mindful of the developer’s expert’s testimony that he was unable to rule out alternative development plans that would have less of an impact on the flood plain and wetlands. Thus, the Court concluded the board’s denial was not unreasonable, arbitrary or capricious. The board felt the proposed disturbance to the flood plain was not warranted given that an alternate route could be constructed and that the proposed road could be difficult to maintain, and the Court agreed.

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