GEMS Area Landowner Wins Appeal

A developer can proceed with a 5-year-old plan to build 18 homes in the shadow of the Gloucester Environmental Management Services (GEMS) landfill following an Appellate Court decision last month that labeled the township Planning Board's decision to shoot down a preliminary site plan "arbitrary, capricious and unreasonable."

The homes would be built in the Briar Lake subdivision, which is located off Erial Road in the township's Blackwood section.

It appears the township will not fight the New Jersey Appellate Court's decision, which was rendered July 11, by taking the case to the state Supreme Court level.

"I don't know if that makes sense," Mayor David Mayer said Tuesday.

The Planning Board rejected applicant John H. Hooper's residential development plans, which were submitted Aug. 1, 2006, on environmental-safety grounds, according to the Appellate Court decision (see attached PDF beneath the map and photo).

"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," where a site plan indicated 18 of 20 proposed homes would be built, the court's July 11 decision reads.

The three-judge panel ordered the Planning Board to grant preliminary site plan approval for Lot 1, with conditions previously attached by the board's expert, in their decision.

The Planning Board resolution rejecting the site plan in its entirety contained only two reasons for denial:

• The applicant failed to provide all necessary information to allow it to make a "reasonsed decision" in the best interset of public welfare and health.

• The applicant failed to satisfy the positive and negative criteria for variances it sought on the single-home lots.

During its review of the application, the Planning Board and its engineer, John Cantwell, expressed concerns over the potential for contaminated groundwater given the proposed development's proximity to GEMS, a Superfund site.

The Appellate Court ruling notes the judges' opinion that the Planning Board not only wrongly ruled against the site plan, but overstepped its authority with many of the actions it required the developer to take.

"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 decision reads.

Like the Superior Court judge who heard the first appeal, the Appellate Court judges upheld the Planning Board's rejection of the variances for the single-home lots at the ends of the split Primrose Lane.

The township, which was represented by Planning Board Solicitor Michael McKenna, challenged the appeal filed by landowner Bristow Merritt LLC based on it assertion the limited-liability corporation lacked "standing."

The Appellate Court judges—Catherine Cuff, Marie P. Simonelli and Douglas Fasciale—noted in their opinion that following the lower court's ruling "Hooper assigned his rights, title and interest in the plans and application to Bristow Merritt."

They added: "The application was not unique to Hooper, the requested variances (for two proposed single-home lots) 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.

Bristow Merritt had not contacted the township to move forward with the proposed housing development as of Wednesday, according to Ken Lechner, the township's director of community development and planning.

Message Patch left at the Voorhees office of the attorney who represented Bristow Merritt on appeal, Michael J. Ward IV, were not returned.