Howell stream corridors
New law seeks to protect
Howell stream corridors
By kathy baratta
Staff Writer
HOWELL — Another log will be added to the township’s litigation fire as a result of the Riparian Buffer/Stream Corridor Protection ordinance recently adopted by the Township Council.
Attorney Gerald Sonnenblick of Free-hold Township, representing the K-Land development group of Highland Park, confirmed to Greater Media Newspapers that he will take Howell to state Superior Court with a direct challenge of the ordinance that was adopted in September.
Sonnenblick claimed the law is not a land use ordinance, but rather a "police ordinance."
He said he will ask the court to overturn the Planning Board’s and council’s decision to deny K-Land its final approval for a residential subdivision.
In recent appearances before both bodies, Sonnenblick told members of the council and Planning Board that the effect of the new ordinance means K-Land will lose five or six of its buildable lots at Westbrooke, a 14-home development on Lakewood-Allenwood Road.
Prior to the Planning Board’s vote to deny final approval of the Westbrooke application on Dec. 12, Sonnenblick appeared before the council at its Nov. 25 meeting to appeal for the council’s help regarding the impending loss of K-Land’s Planning Board approval due to the adoption of the new ordinance.
He said the new Riparian Buffer/Stream Corridor ordinance had a "severe impact" on K-Land’s application. Sonnenblick, whose field of expertise is land use, also told members of the governing body that the ordinance will adversely affect any homeowner in Howell who lives near a stream or flood plain corridor. He said he would litigate the matter to seek relief from the courts if necessary.
"As written, anyone in town within 100 feet of a flood plan cannot put in a patio, a swing set or an addition. That’s what this ordinance says; it doesn’t just affect land use for new development," he said.
Nonetheless, the council voted against "grandfathering" K-Land’s development application into the Riparian Buffer ordinance.
The application then came before the Planning Board on Dec. 12.
Before the vote to deny the development application was held, Sonnenblick told the board members he wanted it noted for the record that K-Land had been a conforming application when it was deemed complete in August by the board.
"We met all other requirements but those of the riparian ordinance (that was) adopted after we finished," he said.
Associate township attorney Dominic Manco was the attorney who advised the council in the matter on Nov. 25 and he sat in on the K-Land application when the Planning Board went into executive session and voted on the matter on Dec. 12.
Mayor Timothy J. Konopka, who was present for both of Sonnenblick’s presentations, said he "questioned Mr. Sonnenblick’s overzealousness to get this denial."
When Konopka asked Manco at the Planning Board hearing in the matter, "Are we setting ourselves up," Sonnenblick quickly responded to the mayor, saying, "I said last week I’d sue," referring to his address to the mayor and council members.
Responding to the mayor, Manco said he found that, "from a legal standpoint, a pending application is subject to the ordinance."
When pressed by Sonnenblick, Manco did confirm Sonnenblick’s contention that the ordinance impacts homeowners; existing structures and not just new construction within the identified boundaries contained in the riparian ordinance.
The buffer width as defined by the new ordinance is 100 feet on either side of a permanent or intermittent stream corridor or 150 feet outward from either side of a drinking water supply watershed.
Sonnenblick reminded the members of the board that K-Land’s application to build Westbrooke had been deemed complete by the board in June when the board asked K-Land to grant an extension of time to hear the application.
He said K-Land granted the extension because the board was behind in hearing other applications and was seeking K-Land’s indulgence when the extension was requested.
During his appearance before the council, Sonnenblick said his client had granted the extension of time with one stipulation. He said K-Land wanted to be notified if any proposed ordinance or amendment that would impact its application was proposed so that its representative could appear and be heard.
Sonnenblick told the governing body he was first informed of the ordinance when K-Land came before the Planning Board in October. That was, he said, when he was asked by a board member whether K-Land was in compliance with the new riparian buffer ordinance.
Sonnenblick said he was informed by Planning Board secretary and administrative officer Barbara Capitan that the failure of the board to notify K-Land of the proposed and pending ordinance was a clerical oversight.
Addressing the members of the council, Sonnenblick said he appreciated that such oversights can occur but, nonetheless, said it would only be fair that K-Land’s application be "grandfathered" to the ordinance that was adopted after its application had been deemed by the Planning Board to be complete.
"We’re looking for fairness, nothing else. We will have to litigate a denial," he said.
Sonnenblick reminded the Planning Board on Dec. 12 that the application did not require any waivers or variances.
The language of the township’s ordinance states that the State Development and Redevelopment Plan calls for the preservation of large, continuous tracts and corridors of open space land which contain important biological resources.
It also states that riparian corridor protection is an essential aspect of the intent and purposes stated under New Jersey municipal land use law which is the legal foundation for the municipal planning and zoning process.
Konopka told Sonnenblick, "I feel confident our ordinance will stand up in court, so go ahead."
"In the interest of all fairness and equity, I had hoped the matter could be resolved so that my client and the township could be spared the expense of seeking relief from the court," Sonnenblick said.