BRISTOW MERRITT LLC v. TOWNSHIP OF GLOUCESTER PLANNING BOARD TOWNSHIP OF GLOUCESTER (2011)

Plaintiff Bristow Merritt, LLC owns property located on the Briar Lake residential subdivision in Gloucester Township.   Plaintiff sought to vacate the decision of defendant Township of Gloucester Planning Board (Board) denying the application of the contract purchaser, plaintiff John Hooper, for preliminary major subdivision approval, variances and waivers for the development of single-family homes in the subdivision.

We hold that the Board acted arbitrarily, capriciously and unreasonably in denying both preliminary major subdivision approval with the conditions imposed by its expert and the waivers, but not in denying the variances.   Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

The Briar Lake subdivision is located in Gloucester Township's R–3 zoning district, which permits single-family residential lots with an area of at least 9375 square feet and 30–foot front yard setbacks.   Occupied homes, vacant lots approved for residential development, and open spaces are located in the subdivision.

The subdivision is adjacent to, but not part of, the former Gloucester Environmental Management Services (GEMS) Landfill, an environmentally contaminated Superfund site managed by the Environmental Protection Agency (EPA) and the New Jersey Department of Environmental Protection (NJDEP).   Pursuant to a drainage easement the NJDEP has over a portion of the subdivision, the NJDEP erected a fence that severed the arc of a horseshoe-shaped road called Primrose Lane into two parallel dead-end streets.   The fence prevents drivers from entering the easement area.

Bristow Merritt owns three vacant lots in the subdivision:  Block 13999, Lot 1, which is 10.48 acres of woodlands, and Block 13901, Lots 57 and 58, which are approximately 65 feet by 125 feet lots located approximately 650 feet down the street from Lot 1. Lots 57 and 58 front Primrose Lane and are located at the end of one of the dead-end streets created by the easement's fence.

On August 1, 2006, Hooper, as contract purchaser, submitted an application for preliminary and final major subdivision approval to develop eighteen single-family homes on Lot 1 and a single family home on each of Lots 57 and 58.   Hooper also proposed to build a cul-de-sac on Primrose Lane in order to avoid building a bridge over the NJDEP's easement to connect the two dead-end streets, which would also require the EPA's and NJDEP's involvement.   Accordingly, Hooper requested front yard setback variances for Lots 57 and 58 of twenty feet and a lot-size variance for Lot 57 of 8357 square feet.

Hooper also requested several waivers from the preliminary subdivision requirements and performance and design standards, several of which were eventually resolved during the proceedings before the Board.   The only waiver remaining for the Board's consideration concerned Hooper's request to make a monetary contribution instead of installing a tot lot for recreation.   The Township's director/zoning officer and deputy director/planner had no objection to this waiver.

Due to the close proximity of the proposed development to the former GEMS Landfill, the Board's major concern was potential contaminated groundwater on the lots.   Hooper's environmental engineer, Carl Bones, submitted an Environmental Site Assessment pertaining to Lot 1. Bones took four sub-surface soil samples from Lot 1 to test for the following dangerous groundwater materials:  volatile organic compounds (VOCs), base neutral compounds, and priority pollutant metals.   No materials were detected above applicable NJDEP limits.   However, Bones concluded the groundwater beneath the property may be nevertheless “impacted” by the former GEMS Landfill.

The Board's engineer, John Cantwell, questioned whether Bones conducted the sampling protocol in accordance with the NJDEP guidelines.   He was also concerned that in his report, Bones indicated that groundwater contamination was likely but he conducted no sampling “to determine whether the site's groundwater, surface water (and associated sediment) and air has been impacted by the [GEMS Landfill].”   Accordingly, he recommended that Bones conduct groundwater, surface water, sediment and air quality sampling under the direction of the NJDEP.   There is no municipal ordinance or subdivision standard requiring a developer to conduct such sampling as a condition of preliminary subdivision approval.   Nevertheless, Hooper agreed to perform the additional sampling, but objected to the NJDEP's involvement.

Bones collected shallow groundwater, surface water and sediment samples in and around the area of the proposed development to determine the level of contamination from the GEMS Landfill.   Some of the samples revealed VOCs and semi-volatile organic compounds (SVOCs) below the NJDEP's groundwater quality standard;  however, concentrations of the metals aluminum, arsenic, iron, manganese and thallium were above those standards.   Bones explained to the Board that the metals may pose a danger if the groundwater was ingested or used for bathing and he could not opine at that time whether it would be safe to eat vegetables planted in a garden on the lots.

Because the sampling revealed no VOCs or SVOCs in excess of the groundwater quality standards, Bones concluded that volatilization of organic compounds to the indoor air of the proposed homes is not expected.   Bones did not address deep groundwater, claiming that this was the responsibility of parties who were involved with the GEMS Landfill.

Cantwell recommended retesting the groundwater using the low-flow purging and sampling methodology, and that “additional groundwater samples be collected with VOC and SVOC concentrations modeled to determine potential indoor air concentrations.”   Because the concentrations of deep groundwater contaminants and the impact of volatilization of VOCs into indoor air spaces was unknown, Cantwell also recommended the installation of a sub-slab vapor removal system or its equivalent in each home as a precaution.   Hooper agreed to these recommendations.

Bones's subsequent sampling using the methodology Cantwell recommended revealed no VOCs above the NJDEP quality standards, no vapor intrusion risk from the groundwater, and no detectable risk from the soil even though the groundwater contained metals at levels above the NJDEP quality standards.   Thus, Bones concluded there is no human health risk from the soil or groundwater, no risk of vapor intrusion, and the vapor-removal system Hooper agreed to install in each home would mitigate any possibility of future vapor intrusion.

Cantwell agreed there is no human health risk from the soil and groundwater.   Nevertheless, he recommended “that below grade construction not exceed 5 feet in the main portion of the development and 3 feet on the properties located on lots 57 and 58 ․ [and] properties be deed restricted to prohibit future excavations below these depths.” ¹  He also recommended that Hooper install the vapor removal systems, keep groundwater monitoring wells intact, and make full disclosure of all contamination to potential residents of the subdivision.   Hooper agreed to these recommendations.

Hooper also agreed to other conditions, such as funding a required upgrade to a sewage lift station, making a monetary contribution in lieu of open space, installing new fencing and repairing and completing existing fencing around Briar Lake, and altering the design of the homes to utilize crawlspaces or slabs if he could not build basements within the 5–foot excavation limit.

An issue subsequently arose about vapor intrusion during the trenching and excavation phase of construction, which could theoretically bring the contaminated groundwater to the surface.   Hooper's civil engineer, Jason Sciullo, explained that instead of breaking the surface, Hooper could install a system to pump the contaminated groundwater underground to a recharging dry well, thus eliminating any risk of vapor intrusion and runoff.   Bones represented that Hooper would present the excavation and trenching plan in a site-specific safety plan.

Hooper presented very little testimony to support his request for the variances.   Bones testified that the NJDEP's easement impeded connecting the two dead-end streets on Primrose Lane. Sciullo testified that joining the streets required NJDEP approval because of the wetlands in that area and the easement.   Hooper, on the other hand, said he would not proceed with that part of the application relating to Lots 57 and 58 if the Board would not approve his request for variances to build a cul-de-sac.

At a final hearing before the Board, Hooper agreed to all of the recommendations made by the Board's professionals.   Nonetheless, the Board voted to deny the application in its entirety.   The Board subsequently memorialized its vote in a resolution, which contained fifty-seven paragraphs summarizing the testimony and evidence presented to the Board.   The resolution also contained only two reasons for the denial:

a) the applicant has failed to provide all information necessary to permit the Board to make a reasoned decision that is in the best interest of the public health, safety and welfare;

b) the applicant has failed to satisfy the positive and negative criteria for the variances.

The Board did not cite any deviations from the requirements of the municipal ordinances or subdivision standards, or mention the requested waivers.

Bristow Merritt and Hooper filed a complaint challenging the Board's decision.   In an oral opinion, the trial judge affirmed the Board's denial of the variances, finding “there was very little testimony regarding the actual variance other than it was necessary to provide for the cul-de-sac in order to avoid the connecting road, which is apparently called for by the master plan.”

The judge also affirmed the Board's denial of preliminary subdivision approval, finding as follows:

With regard to the plaintiff's contention that the Planning Board inappropriately considered the safety reasons in their decision, it is clear that it was, in part, the rationale, although the memorializing resolution does not reach that conclusion, to the extent that the action would be based on environmental concerns caused by awful offsite contamination of the adjacent property, it would seem to me that that would violate Pizzo [Mantin Group v. Township of Randolph, 137 N.J. 216 (1994),] and the other cases which have followed.

I also agree that there's no evidence that would justify finding that the property is not safe for development.   The testimony ․ just does not support that finding.   But, again, the resolution does not conclude that was the basis for the denial.

Lastly, is the question of some unanswered questions.   It seems to me that the DEP protocol was probably an appropriate protocol to use.   Of concern to me, however, was the request for information regarding the trenching which would require the displacement of soil and contaminated groundwater.   Plaintiffs' engineer acknowledge[d] that it would have to be addressed and could be addressed in a site-specific health and safety plan․

I think there is a reasonable request that, that information should have been provided.   And, it was not arbitrary or capricious for the Planning Board to deny based on the lack of information.

[ (Emphasis added.) ]

This appeal followed.

On appeal, Bristow Merritt contends the judge erred by failing to (1) differentiate between Hooper's application for preliminary subdivision approval for Lot 1 from his request for variances for Lots 57 and 58;  and (2) apply the appropriate legal standard to the application for preliminary major subdivision approval.   Bristow Merritt also contends the Board's denial of Hooper's application for preliminary major subdivision approval for Lot 1 was arbitrary, capricious and unreasonable.

As a threshold matter, we address the Board's contention that Bristow Merritt lacks standing to bring this appeal.   Following the judge's decision, Bristow Merritt released Hooper from his obligations under the contract of sale.   In exchange, Hooper assigned his rights, title and interest in the plans and application to Bristow Merritt.   Bristow Merritt then filed this appeal, ostensibly as title owner and successor developer of the lots.

“Standing is a threshold justiciability determination of whether [a] plaintiff is entitled to initiate and maintain an action on the matter before the court.”  Spinnaker Condo.   Corp. v. Zoning Bd. of Sea Isle City, 357 N.J.Super. 105, 110 (App.Div.), certif. denied, 176 N.J. 280 (2003).   To have standing, a plaintiff must have “ ‘a sufficient stake and real adverseness with respect to the subject matter of the litigation [and a] substantial likelihood of some harm ․ in the event of an unfavorable decision․  ‘ “ Jen Elec., Inc. v. Cnty. of Essex, 197 N.J. 627, 645 (2009) (alteration in original;  citation omitted).

A landowner has no standing to take an appeal from the denial of a variance where the variance requested is unique to the applicant and “would not adhere to the land in the traditional zoning sense.”  Spinnaker, supra, 357 N.J.Super. at 114.   By contrast, in Campus Assocs.   L.L.C. v. Zoning Board of Adjustment of Hillsborough, 413 N.J.Super. 527, 530 (App.Div.2010), the contract purchaser applied for use and bulk variances to construct affordable housing units.   After the zoning board denied the application, the contract purchaser decided not to appeal and terminated the contract.  Id. at 531.   The plaintiff-landowner then filed a complaint in lieu of prerogative writs challenging the zoning board's decision.  Ibid.

The trial court dismissed the complaint based on lack of standing.  Id. at 532.   We reversed, concluding as follows:

Unlike the applicant in Spinnaker, [the applicant] was making a traditional land use application dependent upon property specific proofs.  [The applicant] was seeking a use variance in order to construct affordable housing on plaintiff's property.   If this variance had been granted, it would have run with the land in the traditional sense and would have been available to plaintiff and subsequent owners of the property.   The variance would have benefited plaintiff's property by expanding the uses that could be made of the property.   As a result, the denial of the variance deprived plaintiff and its property of this benefit.   Thus, the denial of the variance was adverse to plaintiff's interests as property owner.   This accords plaintiff a sufficient stake in the matter and presents genuine adverseness, so that, under New Jersey's liberal interpretation of standing requirements, plaintiff has standing to challenge the denial of the variance.

[Id. at 537–38.]

In this case, Hooper made a traditional land-use application for preliminary subdivision approval and setback and lot-size variances, each of which depended on property-specific proofs.   The application was not unique to Hooper, the requested variances would adhere to the land in the traditional land-use sense, and the variances would be available to Bristow Merritt and any subsequent owner of the lots.   Accordingly, Bristow Merritt has standing to bring this appeal.

As for Bristow Merritt's challenge to the Board's denial of its application, we begin by noting our agreement with Bristow Merritt that Hooper's request for preliminary major subdivision approval for Lot 1 and his request for the variances for Lots 57 and 58 were separate items.   The variances were not required for preliminary subdivision approval for Lot 1, and the variance denial had no bearing on Hooper's entitlement to preliminary subdivision approval for Lot 1. Thus, the judge should have separately considered these items.   An amended application was not required.

In reviewing a planning board's decision, we use the same standard used by the trial court.  Cohen v. Bd. of Adjustment of Rumson, 396 N.J.Super. 608, 614–15 (App.Div.2007);  Pullen v. Twp. of S. Plainfield Planning Bd., 291 N.J.Super. 1, 6 (App.Div.1996).   Like the trial court, our review of a planning board's decision is limited.  Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998).   We give deference to a planning board's decision and reverse only if its action was arbitrary, capricious, or unreasonable.  Zilinsky v. Zoning Bd. of Adjustment of Verona, 105 N.J. 363, 367 (1987);  Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965);  Cohen, supra, 396 N.J.Super. at 615.

The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D–1 to –163, requires a municipality to establish ordinances for site plan review and approval, “that provide clear standards to guide both property owners and planning boards.”   Pizzo Mantin, supra, 137 N.J. at 230;  N.J.S.A. 40:55D–41.   If the applicant meets the standards set forth in the ordinances, the planning board lacks the authority to deny approval of the site plan and subdivision.   N.J.S.A. 40:55D–50a;  PRB Enters., Inc. v. S. Brunswick Planning Bd., 105 N.J. 1, 7 (1987);  Dunkin' Donuts of N.J., Inc. v. Twp. of N. Brunswick Planning Bd., 193 N.J.Super. 513, 515 (App.Div.1984).

At the preliminary approval stage, the planning board must assess the application in light of the “well-being and the welfare of individuals who will ultimately become owners and occupants in the subdivision.”  Levin v. Twp. of Livingston, 35 N.J. 500, 510 (1961).   However, the planning board cannot deny an application for preliminary “subdivision approval ‘based on considerations of the general welfare, the purposes of the [MLUL], and sound planning.’ ”  Green Meadows at Montville, L.L.C. v. Planning Bd. of Montville, 329 N.J.Super. 12, 18 (App.Div.2000) (quoting Pizzo Mantin, supra, 137 N.J. at 219).   A planning board is obligated to assess applications in light of the public health and welfare only in terms of whether the subdivision plan conforms with municipal ordinances which should, on their own, advance the public welfare.  Pizzo Mantin, supra, 137 N.J. at 228–30.   In this vein, the planning board “may cajole or use its powers of persuasion [,]” DeMaria v. JEB Brook, L.L.C., 372 N.J.Super. 138, 147 (Law.Div.2003), to impose upon the developer “terms, conditions, and requirements peculiar to site plan approval” that advance the health and safety of the public, W.L. Goodfellows Co. of Turnersville v. Wash. Twp. Planning Bd., 345 N.J.Super. 109, 116 (App.Div.2001).   Ultimately denial of subdivision approval must be based on specific failures to meet stated subdivision or zoning ordinance standards and may not be based on generalizations to the effect that standards of land use are not met.  Green Meadows, supra, 329 N.J.Super. at 19.

A planning board should also issue a statement of reasons that articulates, “in a consistent manner, the principles that guide [the board's] actions.”   Urban v. Planning Bd. of Manasquan, 124 N.J. 651, 662 (1991).   The statement of reasons “is critical to judicial analysis[,]” without which a reviewing court cannot determine whether the board was “guided by inappropriate factors in its decision-making process.”  Ibid. A court reviewing a planning board's denial of preliminary subdivision approval should look to the statement of reasons and ignore conclusions that are not “based on a subdivision plan's deviations from the requirements of specific provisions of municipal zoning ordinances or subdivision regulations.”  Green Meadows, supra, 329 N.J.Super. at 19.   When a planning board's denial of subdivision approval is inappropriately based on general welfare considerations, the arbitrary and capricious denial of a requested variance cannot serve as a proxy for the rejection of the subdivision proposal.  Ibid.

Here, the Board denied preliminary subdivision approval because Hooper failed to provide information necessary for the Board to determine whether the proposed development is in the best interest of the public health, safety and welfare.   The judge found this conclusion to be based on Hooper's failure to provide information about the trenching, which would require the displacement of soil and contaminated groundwater.

As discussed above, the Board cannot deny preliminary subdivision approval based on general welfare considerations.   Even if it could do so, there is no evidence in this case of any danger to human health present on Lot 1. To the contrary, the Board's expert agreed no such danger existed if Hooper met all of the expert's recommended conditions, and the judge found no evidence that the property is not safe for development.

More importantly, there is no dispute that Hooper's preliminary subdivision application for Lot 1 met the Township's ordinance and subdivision standards.   By requiring Hooper to conduct soil testing and provide information about trenching, the Board adopted ad hoc standards that are beyond the municipal ordinance and subdivision standards.   Doing so was arbitrary, capricious and unreasonable.   The MLUL mandates the grant of preliminary subdivision approval in this case with the conditions the Board's expert requested, to which Hooper agreed, and the waiver of the tot lot requirement, to which there was no raised objection.

As for the variances required by Lots 57 and 58, we give even greater deference to a planning board's decision to deny a variance in preservation of a zoning plan than a decision to grant a variance.  Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J.Super. 22, 38 (App.Div.2003).   Where a planning board has denied a variance, the applicant must prove that the evidence before the board was “ ‘overwhelmingly in favor of the applicant.’ ”  Ibid. (quoting Ne. Towers, Inc. v. Zoning Bd. of Adjustment of W. Paterson, 327 N.J.Super. 476, 494 (App.Div.2000)).

Hooper sought a “c” variance for setback and lot-size relief for Lots 57 and 58 only.   See N.J.S.A. 40:55D–70c.   An applicant for a “c” variance must demonstrate that

by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation ․ would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property․

[N.J.S.A. 40:55D–70c(1)(c).]

The applicant must also demonstrate “that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.”  N.J.S.A. 40:55D–70c(2);  see also Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 553 (1988) (“The provision [N.J.S.A. 40:55D–70c(2) ] allows a variance for certain dimensional requirements when the purposes of the MLUL would be advanced, the benefits of the deviation would substantially outweigh any detriment, and the relief can be granted without substantial detriment to the public good and without substantial impairment of the zone plan.”).   The burden of proving the existence of the statutory criteria for a variance lies with the applicant.   See Betts v. Bd. of Adjustment of Linden, 72 N.J.Super. 213, 217 (App.Div.1962).

Here, the record is devoid of any testimony or evidence establishing the statutory criteria.   We reject Bristow Merritt's attempt to establish this criteria by way of arguments in its merits or reply briefs.   Accordingly, we conclude that the Board's denial of Hooper's request for variances was not arbitrary, capricious or unreasonable.

Affirmed in part, reversed in part, and remanded to the Board to grant preliminary subdivision approval for Lot 1 with the conditions recommended by the Board's expert and the Board to which Hooper agreed, and the tot lot waiver.   We do not retain jurisdiction.

FOOTNOTES

FN1. Cantwell acknowledged that the groundwater elevations within the proposed subdivision ranged from 4.55 feet to 10.55 feet below grade..  FN1. Cantwell acknowledged that the groundwater elevations within the proposed subdivision ranged from 4.55 feet to 10.55 feet below grade.

PER CURIAM