Decker v. Borough of North Haledon Planning Board
On August 26, 2005, in Decker v. Borough of North Haledon Planning Board, et. al., an unreported opinion (Docket No. A-4801-03T3), the Appellate Division held that a local planning board could not deny an application for a variance based upon a perception that another agency having jurisdiction over the proposed development “will not competently discharge its statutory responsibilities” with respect to a required permit or approval.
In Decker, the applicant sought approval for a four-lot residential subdivision, lot size variance and de minimis exception from the Residential Site Improvement Standards. The planning board, which had expressed concerns over the impact that the proposed development might have upon a waterway running through the property and the potential for flooding, denied the application based upon the applicant’s refusal to perform bank stabilization work in conjunction with the applicant’s procurement of a required stream encroachment permit. According to the Appellate Division, the planning board “improperly” imposed this condition upon the applicant “in spite of its recognition that the regulation of that waterway is beyond the [b]oard’s authority and subject to the jurisdiction and control of the Department of Environmental Protection (DEP).”
Although the majority in Decker acknowledged the views of it’s “dissenting colleague” respecting the “special deference” that should be given to “a local board when it denies a variance” it could not uphold the denial in this case “where, as here, the local board’s action is so openly predicated on mistrust and fear that a State agency will not competently discharge its statutory responsibility its action is arbitrary and no longer entitled to deference.”