Judge overturns E.B.’s denial of Tamarack Hollow

Matzel & Mumford wins approval for homes off Fresh Ponds Rd.

BY VINCENT TODARO

Staff Writer

The 56-home Tamarack Hollow development will become a reality after all. East Brunswick’s denial of the controversial development off Fresh Ponds Road was overturned last week by Judge James Hurley in state Superior Court, New Brunswick, where developer Matzel & Mumford had appealed the decision.

Hurley ruled Feb. 2 that the East Brunswick Planning Board was "unreasonable" in refusing preliminary subdivision approval of the development and told the Hazlet-based developer to move forward by working with the state on the proposed wastewater treatment facility that was part of the basis for the board’s denial.

On April 30, the board voted 7-2 against the plans after numerous hearings in which many residents raised objections to the proposal and local environmentalists in particular said the sewage system would be damaging to an already sensitive area.

The application represents the only large-scale housing plan filed in the Rural Preservation zone, effective since 2001. The zone allows one home per 6 acres but provides a cluster provision allowing one home per 3.5 acres as long as 75 percent of the total acreage remains open space. Matzel & Mumford’s plans complied with the cluster provision.

Hurley instructed the developer to seek state Board of Public Utilities and Department of Environmental Protection approvals for the development. Concerns about the facility and whether it could eventually be expanded with other area residences tying into it were among the reasons the board turned down the application.

"As a board, we had concerns about the wastewater, and those will be addressed by the DEP," said Mayor William Neary, who also sits on the board.

"I’m glad that we’re vindicated and our zoning stays in place, and the concern of the environment will be addressed by the state," he said.

Board Attorney Lawrence Sachs said that even though Matzel & Mumford never refused to get DEP and BPU approval for the facility, it will now be forced to do so.

Sachs said the judge reversed the board’s decision because he found that the application satisfied the criteria needed for the preliminary subdivision approval. Matzel & Mumford still must come before the Planning Board for final approval.

Sachs said the judge also demanded that the developer submit proof from PSE&G that it has no objection to granting an access easement across its right of way. In addition, the developer must provide more well monitoring test results in the area of the disposal bed for the wastewater treatment facility.

"It will be interesting to see how the testing comes back," Neary said.

Township Council President and Planning Board member David Stahl said the application still needs to go before the council for a franchise license to run the plant.

David Fisher, a vice president of Matzel & Mumford, said he is aware of the conditions laid out by the judge but he feels the lawsuit was a real victory for the company.

"He essentially agreed with all of our testimony, that we complied and there was no reason [for the board] to deny it," he said.

Former Planning Board member Richard Walling, who was outspoken in his opposition to the development, said the township dropped the ball and could have done a better job fighting it.

"The decision does not come as a surprise, because the reasons stated by the Planning Board did not rise to the legal standards [needed for a denial]," Walling said. "This was a political decision and not a Planning Board one, which is not good government."

He said he and others wanted the application denied on land use grounds, such as sustainable environmental concerns, but the board did not do so and thus made it easy for Matzel & Mumford to win in court. He said the denial could also have been based on procedural grounds.

The board based its decision on traffic concerns in addition to concerns about the wastewater facility.

Walling said if the board had allowed opponents to present more facts and witnesses, it would have been in a stronger position to defend its decision.

In a guest column published in the Sentinel last May, Walling pointed out that a DEP memo obtained through the open public records process was critical of the application and gave reasons why the development should not exist. Other residents also voiced strong opposition to the development, as did members of the Lawrence Brook Watershed Partnership, which pointed out that more than 7,000 trees would be destroyed.

The 56 homes will be built on 1-acre lots on a tract west of Fresh Ponds Road and north of Church Lane, adjacent to a second tract that will house the wastewater plant. The total development area includes about 231 acres, with 75 percent to remain open space.

Fisher has said that no new homes will be able to be seen from any of the existing streets including Fresh Ponds Road, Church Lane and Beekman Road, and that two active farms will remain as part of the open space, protected from future development.

"We’re very pleased," Fisher said of last week’s ruling. "It’s the decision we were hoping for."

He said it is premature to say when construction will begin, but his best guess is the spring of 2005.