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In what appears to be a very first, Lakewood residents have filed an initial petition seeking for the New Jersey Supreme Court in Trenton to overturn a land use approval granted by Lakewood Township's Planning Board.

This petition to the State's highest court comes after the residents were already rebuffed by the two lower courts.

Way back in 2015, MC Tuscany II Property, LLC applied to the Planning Board for Major Subdivision approval to develop twenty single-family homes on a new cul-de-sac to be located off East County Line Road near Ridge Avenue.

The use of single-family homes is permitted in this zone. However, the application did seek bulk variances. The heart of the dispute, however, lies with environmental constraints on the site and how the developer dealt with that issue.

North of the property lies East County Line Road, and south of the property is Cabinfield Branch, a Category One stream that flows through Lakewood.

State Law defines Category One waters as "those . . . for protection from measurable changes in water quality based on exceptional ecological significance, exceptional recreational significance, exceptional water supply significance or exceptional fisheries resource(s) to protect their aesthetic value (color, clarity, scenic setting) and ecological integrity (habitat, water quality and biological functions)."

Therefore, this property is subject to a separate Lakewood ordinance requiring riparian buffer conservation overlay zones whose purpose is to ensure adequate vegetation on lands adjacent to streams, lakes, or other bodies of water. The riparian zone also requires a 300-foot-wide buffer surrounding Category One waterways as well as upstream tributaries within the same watershed. 

As a result, the property is subject to a riparian buffer zone that extends 300-feet from Cabinfield Branch's center. Tuscany was required to account for the buffer zone in its proposed subdivision.

On December 15, 2015, following a public hearing, the Board approved and adopted Tuscany's initial application by way of resolution ("the first resolution"). No party appealed that decision.

At the time of the first resolution, Ocean County required a twenty-five-foot dedication for its right-of-way on East County Line Road. In 2017, however, the county amended its Master Plan, and increased the right-of-way to forty-three feet. As a result of the increase, Tuscany submitted an amended preliminary and final major subdivision application ("amended application") which sought additional variance relief as well as specific design waivers relative to the enhancement of a separate road that would access the development.

On October 29, 2019, the Board conducted a hearing regarding the amended application. Tuscany called as witnesses Graham MacFarlane and Brian Flannery, both professional engineers and professional planners.

At that hearing, the neighbors were represented by an attorney who cross-examined Tuscany's witnesses and expressed concern regarding the development's proposed variances, and how those variances would impact the riparian zone.

Additionally, the attorney alleged that Tuscany failed to support its amended application with an accurate survey. Specifically, counsel questioned MacFarlane regarding Tuscany's reliance on a survey conducted by New Lines Engineering, originally completed in November 2018, and subsequently revised in December 2019 as it pertained to the exact location and boundaries of the buffer zone. He further questioned why MacFarlane made no reference to his own field study in Tuscany's amended application. In response, MacFarlane stated his "office had also performed a survey to identify where that [buffer zone] line fell. And [his] surveyor and [New Lines's] surveyor worked together to determine the exact location," as reflected on the amended application. 

While MacFarlane conceded the initial application estimated the riparian buffer zone would transect two of the proposed homes, he explained that estimation was "not based upon a detailed field survey." MacFarlane further testified he conducted a detailed field survey for the revised plan in 2018, confirming the location of the riparian buffer zone, and he asserted there was "no impact to the . . . wetlands . . . or [the] riparian buffer . . . [in the amended application.]" Finally, MacFarlane stated the surveyor was present at the proceeding if the Board wished to elicit testimony from him. 

During this exchange, the Board's attorney, John Jackson, noted "[Tuscany][,] . . . had done the survey and [that was] the survey [the Board] [was] relying on [,] [as] [r]ight now there [was] no competing survey." The Board's engineer, Dave Mango, further explained "the 300[-]foot [r]iparian buffer just ha[d] to be established . . . on the map with survey information, . . . and tied to the property." 

The Board Chairman, Yechiel Herzel, clarified that the original application was approved "on [the] condition of getting the proper [buffer] line" and confirmed that Tuscany now "ha[d] the proper line" about which MacFarlane testified.

Ultimately, the Board unanimously approved the amended application, with a condition that they provide a recorded deed delineating the riparian buffer zone to alert potential homeowners of its presence, and obtaining "all approvals required by any federal, State, county, or municipal agency having regulatory jurisdiction over this development." 

On March 9, 2020, the neighbors filed a lawsuit in the Superior Court seeking to overturn the Board's approval.

The neighbors specifically claimed Tuscany's amended application was fatally flawed due to its failure to include an accurate survey. Further, the neighbors argued the Board did not have the authority to approve a final site plan.

Judge Marlene Ford upheld the Board's approval, rejecting the neighbors argument that the omission of an updated survey rendered the Board's decision arbitrary and capricious.

Specifically, Judge Ford explained that "the survey, although not part of the record, was . . . provided through testimony of expert opinion as to the location of the riparian buffer zone."

Subsequently, the neighbors appealed to the Appellate Division.

First, they asserted that Tuscany's application was deficient as it failed to attach the updated survey in its submission to the Board, depriving plaintiffs' review of the survey as well as the opportunity to prepare a competing survey. The neighbors further contended that Tuscany failed to present any evidence, testimonial or otherwise, "addressing . . . the benefits or detriments to the zone from the proposed variances," and in reaching its conclusion the Board incorrectly focused solely on the hardship to Tuscany.

The neighbors also argued that the Board lacked the authority to grant final approval, absent "evidence [the additional and conditional approvals] had already been obtained."

The neighbors further contended that the Board's decision was arbitrary and capricious as the amended application failed to "address potentially significant impacts on neighboring properties," and Tuscany did not offer any testimony regarding these impacts at the hearing. The neighbors argue Tuscany failed to establish hardship for the variances as it offered no testimony or evidence illustrating the plot of land being "exceptionally shallow, narrow, or of any unusual shape warranting a variance." Instead, the neighbors claimed that the only hardship suffered by Tuscany due to the increased right-of-way requirement was financial, and Tuscany failed to offer any testimony properly addressing the positive or negative criteria as required under State Law.

In a decision released on March 13, the three-panel Appellate Division affirmed the Superior Court's decision upholding the Board's approval.

The Appellate panel wrote that from their review of the record, it's clear that Judge Ford did properly consider the positive and negative criteria as required under the MLUL for the granting of the variances, and she did confirm that the Board properly granted the relief sought.

"We also find unpersuasive plaintiffs' contention the Board's decision was arbitrary and capricious because it violated Lakewood's Master Plan and negatively affects housing density for the surrounding lots. The variances sought and obtained by Tuscany did not increase the overall development of the lots. Rather, the amended application was consistent with the original development plans after considering the effect on the development as a result of the county's increase in the size of its right-of-way. The Board's decision had no substantive effect on the development's overall density and the variances consistent with the original plan to construct twenty homes."

The Appellate Division concluded that they did not address the remaining arguments raised by the neighbors - especially the key point that the developer did not provide an accurate survey - "because we have determined they lack sufficient merit to warrant further discussion in a written opinion."

However, this is not the end of the matter. FAA News has learned that just at the strike of the 45 day deadline for filing an appeal, the neighbors submitted an initial petition to the Supreme Court seeking for them to agree to hear their appeal on the matter.

Attorneys Ronald Wronko and Carmella Wronko Esq. wrote to the Court:

"This case raises an important question of the limits to which a Planning Board can grant a variance based on an incomplete application and without proper notice to the general public.

"The lower courts erred in this case by creating new precedent in which they endorsed a new method for developers to circumvent Municipal Land Use Law regulations. Those regulations expressly require the attachment of a survey in support of a site plan for a new development.

"Here, the developer never submitted a survey with its application. The developer did not even present the testimony of a Surveyor.

"Instead, the developer relied solely on an engineer who did not prepare the survey to try to explain inconsistencies between a C-1 Riparian Buffer line that was drawn one way on the first application and a different way on an amended application. This buffer is the only thing preventing a developer from destroying an environmentally sensitive, natural habitat.

"When confronted with the inconsistencies between the two applications, the Planning Board's attorney intervened to protect the developer. He advised the Planning Board that a survey was done, even though he presumably never saw one since it was not part of the application. He further advised the Planning Board that the neighbors, who are members of the general public, had the affirmative obligation to obtain a survey to disprove the Riparian line derived from the supposed undisclosed survey.

"Suddenly, according to the Planning Board's attorney and now the Trial Court, the general public is now required to obtain a survey, yet the developer, whose interest in the community is purely financial, is not. The Trial Court's decision turns the MLUL on its head.

"The Trial Court has now permitted to emanate out of Lakewood Township, which is widely regarded as a Township plowing toward overdevelopment, a method for developers to circumvent a mandatory regulation designed to protect the general public's right to notice and site plan review. The Supreme Court should allow certification on this question."

The State's highest court receives many, many petitions each year and they only agree to hear less than 10% of cases that get petitioned to them.

What happens next is that the neighbors will have a timeframe in which to submit a formal petition brief, then the Planning Board and the developer will have a timeframe in which to submit opposition, and then the neighbors will have a chance to reply. At that point, the Court will hold a case management conference in which they will decide whether or not they will even hear the case.

If the Court does agree to hear the case, the hearing will not be scheduled for at least another year.

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