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Thursday, November 12, 2009

Hamilton drainage dispute gets another hearing

BY Erin Duffy
Staff Writer

HAMILTON -- After years of back-and-forth litigation, the township planning board will hold its court-ordered hearing on the stormwater-management system at Christopher Estates at tonight's meeting.

An attorney for developer Gres and Kaluzny Land Development said he's confident a new stormwater-basin design will solve drainage problems at the site while meeting all state regulations, concerns that have been at the heart of several legal challenges filed by a local environmental group.

The 16-home Laura and Evelyn avenues development, which is already built and occupied, has been mired in litigation since 2004, when Save Hamilton Open Space (SHOS) first sued to block construction of the subdivision on the grounds that the developer's stormwater-management plan was not in compliance with DEP regulations issued that year.

Their challenge was initially dismissed, but upon appeal, another court ordered another planning board hearing on the stormwater plan in 2006.

The plan was approved again by the planning board in February 2007, but SHOS sued once again, arguing that the public meeting was not properly advertised and that the board's approval of the project was done without DEP clearance.

Tonight's hearing was first ordered by an Appellate Division of the state Superior Court in a decision rendered in November 2008.

In its opinion, the court wrote that the "board and its experts never made a finding of such compliance" regarding the DEP regulations, referred to as Phase II.

The ruling, which puts the burden on planning and zoning boards to determine whether stormwater-drainage plans follow state regulations, could have far-reaching impact at the local level.

"It's the responsibility of these planning boards and zoning boards to ensure they're meeting DEP requirements," said Stuart Lieberman, the attorney representing SHOS. "They can't punt it."

Lieberman said area residents have been complaining of flooding problems at the site and an increase in the mosquito population caused by stagnant water lying in the development's stormwater basin.

"Save Hamilton Open Space's position isn't just academic. This isn't an intellectual exercise for these people but rather an effort to ensure that what happened here doesn't happen again," said Lieberman. "We believe this system never satisfied DEP requirements and that's been our position since day one."

Attorney Donald Daines, who is representing Gres and Kaluzny, said that based upon its initial preliminary and final approval of the site, the township and its engineers seemed confident in the drainage system's design.

However, Daines said a new stormwater management system has been drafted, after soil tests conducted this summer determined a layer of clay beneath the basin was blocking stormwater runoff from draining properly. "Everybody thought everything was fine but then we discovered this clay layer underneath it in 2009 so we corrected that and we're showing a plan we believe complies with the Phase II regulations," he said.

"We're happy to propose a plan to fix the basin and comply with Phase II and that's what we're hoping the board will agree with."

Contact Erin Duffy at [email protected] or (609) 989-5723