Builders League of S. Jersey v. Borough of Haddonfield
| Decision Date | 03 March 2021 |
| Docket Number | DOCKET NO. A-5588-18 |
| Parties | BUILDERS LEAGUE OF SOUTH JERSEY, Plaintiff-Respondent, v. BOROUGH OF HADDONFIELD, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Rothstadt and Mayer.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4632-17.
Mario A. Iavicoli argued the cause for appellant.
Richard J. Hoff Jr., argued the cause for respondent (Bisgaier Hoff, LLC, attorneys; Richard J. Hoff Jr. and Danielle Novak Kinback, on the brief).
Michael G. Sinkevich argued the cause for amici curiae New Jersey Future, Association of New Jersey Environmental Commissions, The Watershed Institute, and Sustainable Jersey (Lieberman Blecher & Sinkevich, PC, attorneys; Michael G. Sinkevich, of counsel and on the brief; C. Michael Gan, on the brief).
Defendant Borough of Haddonfield (Haddonfield) appeals from the following orders: a May 2, 2018 order denying Haddonfield's first motion for summary judgment or transferring the matter to the New Jersey Department of Environmental Protection (DEP) in the alternative; a February 8, 2019 order denying Haddonfield's second motion for summary judgment or transferring the matter to the DEP; a July 10, 2019 order granting the summary judgment to plaintiff Builders League of South Jersey (BLSJ)1 and denying Haddonfield's cross-motion for reconsideration; and an August 2, 2019 denying Haddonfield's request for a stay.2
This appeal involves the BLSJ's challenge to Haddonfield's adoption of Ordinance § 135-92 (Ordinance), governing stormwater management in themunicipality. The BLSJ claimed the Ordinance was invalid because it subjected new home construction, including single-family and two-family homes, to a review process contrary to State statutory and regulatory authority. The New Jersey Future, Association of New Jersey Environmental Commissions, the Watershed Institute, and Sustainable New Jersey, participating as amici curiae on appeal, join in Haddonfield's arguments supporting the validity of the Ordinance. We affirm the February 8, 2019 and July 10, 2019 orders for the reasons expressed by Judge Deborah Silverman Katz.
The parties are familiar with the fact-findings in Judge Silverman Katz's written and oral decisions, specifically her forty-three-page, comprehensive written opinion dated February 8, 2019. We provide some brief background on various statutory and regulatory provisions governing stormwater management within the State.
The New Jersey Constitution authorizes the Legislature to regulate land use. N.J. Const. Art. IV, § 6, ¶ 2. The Legislature delegated its authority to regulate land use to municipalities under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -136. Municipalities are required to strictly conform to the MLUL. See N.J. Shore Builders Ass'n v. Twp. of Jackson, 199 N.J. 449, 452 (2009).
The MLUL authorized the DEP to adopt regulations governing municipal stormwater management plans. N.J.S.A. 40:55D-93 and -99. Each municipality must adopt a stormwater ordinance in compliance with the DEP's regulations. N.J.A.C. 7:8-4.1 to -4.6.3
The DEP's stormwater regulations applied to "major developments," which were defined as follows:
A "development" is defined as:
In 1993, the Legislature amended the MLUL by enacting the Site Improvement Standards Act (Act), N.J.S.A. 40:55D-40.1 to -40.7, to "replace the 'multiplicity of standards for . . . site improvements' that existed throughout the State with 'a uniform set of technical site improvement standards for land development.'" Northgate Condo. Ass'n, Inc. v. Borough of Hillsdale Planning Bd., 214 N.J. 120, 143 (2013) (citing N.J.S.A. 40:55D-40.2). The Act and subsequently adopted standards were intended to "reduce housing costs by facilitating the approval process for new residential developments" and establish "a uniform set of technical site improvement standards for streets, roads, parking facilities, sidewalks, drainage structures, and utilities." N.J. State League of Muns. v. Dep't of Cmty. Affs., 158 N.J. 211, 217-18 (1999).
In accordance with the Act, the New Jersey Department of Community Affairs implemented regulations, known as the Residential Site Improvement Standards (RSIS). See N.J.A.C. 5:21-1.1 to -8.1. The RSIS applied to "site improvements carried out or intended to be carried out or required to be carried out in connection with any application for residential subdivision, site planapproval, or variance before any planning board or zoning board of adjustment . . . ." N.J.A.C. 5:21-1.5. The standards pertaining to stormwater management are set forth at N.J.A.C. 5:21-7.1 to -7.9. Like the MLUL and the DEP regulations, the RSIS only applies to "major developments."
Significantly, "[t]he RSIS governs all residential site improvements in the State, superseding any contrary requirements that might be found in municipal ordinances." Northgate Condominium Ass'n, Inc., 214 N.J. at 143-44 (citing N.J.A.C. 5:21-1.5(a)-(b)). The MLUL expressly provides the RSIS "shall supersede any site improvement standards incorporated within the development ordinances of any municipality . . . ." N.J.S.A. 40:55D-40.5.
The DEP's Model Ordinance offers guidance to municipalities adopting stormwater management ordinances. The Model Ordinance states:
In contrast, Haddonfield's Ordinance reads:
Unlike the Model Ordinance, Haddonfield's Ordinance applied to "all new homes and commercial buildings" and was not limited to "major developments."
The BLSJ asserted that the Ordinance, contrary to the MLUL and the RSIS, required stormwater plans be reviewed by a municipal official who "shall consult the engineer retained by the Borough, the Planning Board and/or Zoning Board (as appropriate) to determine if all of the checklist requirements have been satisfied and to determine if the project meets the standards set forth in this section." Haddonfield's requirements for stormwater review were extensive andincluded the following information to be reviewed by a "municipal official" prior to all new home construction: a topographic base map; environmental site analysis; project description and site plan(s); land use planning and source control plan; stormwater management facilities map; calculations; and maintenance and repair plan.
Because the MLUL provides "detached one or two dwelling-unit buildings shall be exempt from . . . site plan review and approval," N.J.S.A. 40:55D-37(a), Haddonfield avoided use of the word "site plan review and approval" in the Ordinance. Absent the Ordinance, a permit to construct a single-family or two-family home would issue if, after review by the municipal construction official, the permit applicant complied with the municipal zoning provisions and applicable construction codes, including a proper drainage plan and elevation to minimize flooding. See N.J.S.A. 52:27D-130 and -131(a); N.J.A.C. 5:23-2.15A(b)3.iv. Under the Ordinance, an individual seeking to build a single-family or two-family home in Haddonfield had to undergo a review by a municipal engineer, in addition to the construction official, and post a bond for engineering professional review fees.
The BLSJ argued the Ordinance required submission and examination of items traditionally associated with site plan review and approval. Therefore, theBLSJ asserted the Ordinance was ultra vires Haddonfield's authority and contrary to the MLUL, the RSIS, and the Model Ordinance.
In December 2017, the BLSJ filed an action in lieu of prerogative writs, challenging the Ordinance. Shortly after filing its answer, Haddonfield moved for summary judgment or, in the alternative, a transfer of the matter to the DEP. The BLSJ opposed the...
To continue reading
Request your trial