Opinion
DOCKET NO. A-3907-13T4
06-08-2015
PAVILION HOMEOWNERS ASSOCIATION, Plaintiff-Appellant, v. BRICK TOWNSHIP PLANNING BOARD and AHG LAND HOLDINGS OF BRICK, LLC, Defendants-Respondents.
Alexis L. Gasiorowski argued the cause for appellant (Gasiorowski & Holobinko, attorneys; R.S. Gasiorowski, of counsel; Ms. Gasiorowski, on the briefs). Terry F. Brady argued the cause for respondent Brick Township Planning Board (Brady & Kunz, P.C., attorneys; Mr. Brady, on the brief). Harvey York argued the cause for respondent AHG Land Holdings of Brick, LLC (Novins, York & Jacobus, attorneys; David M. York, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Currier. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1427-13. Alexis L. Gasiorowski argued the cause for appellant (Gasiorowski & Holobinko, attorneys; R.S. Gasiorowski, of counsel; Ms. Gasiorowski, on the briefs). Terry F. Brady argued the cause for respondent Brick Township Planning Board (Brady & Kunz, P.C., attorneys; Mr. Brady, on the brief). Harvey York argued the cause for respondent AHG Land Holdings of Brick, LLC (Novins, York & Jacobus, attorneys; David M. York, on the brief). PER CURIAM
Plaintiff Pavilion Homeowners Association (Association or objector) filed a complaint in lieu of prerogative writs challenging the Brick Township Planning Board's June 12, 2013 resolution granting final major site plan approval and minor variances to the applicant, AHG Land Holdings of Brick, LLC (applicant). The applicant sought those land use approvals in connection with its plan to construct a fast food restaurant. The Law Division dismissed the complaint in an order dated April 1, 2014, from which the Association appeals. Having reviewed the record in light of the applicable legal standards, we affirm substantially for the reasons stated in Assignment Judge Vincent J. Grasso's comprehensive written opinion issued on March 24, 2014.
Judge Grasso's March 24 opinion set forth the relevant evidence in detail, and thoroughly addressed the legal issues. On this appeal, the Association raises the same two issues. First, citing Field v. Mayor and Council of Franklin, 190 N.J. Super. 326, 333 (App. Div.), certif. denied, 95 N.J. 183 (1983), it argues that the application was incomplete with respect to a drainage issue. Second, without citing to any supporting statutory or case law, the Association contends that it was entitled to notice of the hearings although its premises are not within 200 feet of the proposed development. See N.J.S.A. 40:55D-12(b). We conclude that both arguments were correctly addressed in Judge Grasso's opinion and are without sufficient merit to warrant further discussion here. R. 2:11-3(e)(1)(E). We add only these comments.
The Association improperly raised a third issue for the first time in its reply brief. See L.J. Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc., 434 N.J. Super. 60, 87 (App Div.), certif. denied, 218 N.J. 273 (2014). We indicated to all counsel at oral argument that we would not consider the issue, which also concerned an order not listed in the Association's notice of appeal. See R. 2:5-1(f)(3)(A); 1266 Apt. Corp. v. New Horizon Deli, 368 N.J. Super. 456, 459 (App. Div. 2004). Judge Grasso's March 24, 2014 opinion indicated that he had issued a previous opinion on December 20, 2013, addressing the issue, which concerned the Board's jurisdiction. The Association has not even provided us with a copy of that December 20 opinion, thus also waiving its right to present the issue on appeal by failing to provide us with a proper record for appellate review.
In Field, the developer of a proposed planned unit development submitted a plan with three alternate types of sewage disposal systems and did not prove that any of the three would actually work. Supra, 190 N.J. Super. at 333. The court held that a land use application must be sufficiently complete before it is approved, so as to insure that its critical features will work as projected. "Certain elements -- for example, drainage, sewage disposal and water supply -- may have such a pervasive impact on the public health and welfare in the community that they must be resolved at least as to feasibility of specific proposals or solutions before preliminary approval is granted." Ibid.
In this case, the applicant proposed to use a drainage system that discharged water directly into the ground, through buried pipes with holes along their length. The applicant submitted an expert report with detailed calculations demonstrating that the proposed drainage system could absorb one hundred percent of the expected water flow, even in "100 year storm" conditions.
The objector's expert did not disagree with the testimony about the 100-year storm. However, he opined that the system might not absorb all the water flow in a 150-year or 300-year storm, and the system might not work as projected if the drainage pipes were buried one foot above the high water table instead of two feet. However, the expert admitted that he had performed no calculations to support his opinions and did not testify that any applicable land development standard required that a drainage system be designed for a 150- or 300-year storm. Moreover, there was no testimony that, even if the drainage system allowed some water to escape, it would actually cause flooding. Rather, some water might run off the land into the gutter of the adjacent roadway and run downhill into a storm drain.
The Board's engineer was satisfied that the applicant's plan was conceptually sound. He did not testify that the drainage system might cause a problem depending on the height of the pipes above the water table, and the Board was not obligated to credit the opinions of the objector's expert on that point. Further, at oral argument, in response to our questions, the applicant's counsel confirmed that his client was willing to raise the drain pipes to two feet above the ground water table if the engineer concluded that was preferable. In the context of this case, we agree with Judge Grasso that Field is not on point.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION