Hillsborough planning board affirms denial of Harvard Way (JMJ4 LLC) application after remand; dispute over NJDEP permits and soil tests

The Hillsborough Township Planning Board voted 5–0 on Dec. 4 to affirm its previous decision denying the Harvard Way application (file 21‑PB‑J‑09‑MSPV, applicant Harvard Way JMJ4 LLC) after a remand from the court. The vote followed public comment, legal argument and closed‑door consultation with board counsel under the judge's case‑management order.

At the outset of the public portion, board counsel read Judge Menon's Oct. 17, 2025 case‑management order, which allowed the applicant to supplement the record limited to NJDEP approvals and proposed conditions of approval addressing §188‑31E but left other portions of the original record unchanged. Counsel said the remand proceedings should be completed as expeditiously as possible and that limited public comment was appropriate for the material the applicant had introduced.

Objectors' counsel urged the board to apply the Municipal Land Use Law's independent duty to satisfy itself on hydrology and wetlands beyond the minima of NJDEP approvals. "Those represent very appropriate forms of analysis that should be incorporated into the findings," said the objectors' counsel, who argued that proposed operational specifications submitted by applicant counsel were not evidence unless an actual witness testified and could be cross‑examined.

A member of the public, David Brookke of Seven Winding Way, read NJDEP submittals (including an LOI and freshwater wetlands general permit) into the record and said the documents do not address the remand's central question about whether the applicant's stormwater plan can be made feasible without a reclassification of soils from hydraulic group C to D. "You can't cross‑examine a piece of paper to determine those factors," Brookke said, arguing that the permits alone are insufficient proof.

Board members and staff reiterated that the board may seek advice from its professional staff. The board's engineer (Mr. Mayhew) had submitted a report addressing hydrology questions, but several board members said they remained unconvinced that NJDEP approvals and the supplemental materials resolved concerns raised in the original hearings about soil testing, the geographic distribution of test pits and downstream effects on the Raritan River system.

Members repeatedly referenced the contested soil classification (whether on‑site soils should be classified as hydraulic soil group C or D) and the adequacy of testing. Several members said the applicant had declined requests for more in‑field testing during the original hearings and that the record still contained single or concentrated data points (three test pits and one infiltration test) that left uncertainty about infiltration, peak timing and off‑site impacts.

During deliberations the board noted a runoff metric from the applicant's materials showing the 2‑year storm runoff increasing from approximately 29,000 cubic feet pre‑development to about 66,000 cubic feet post‑development — a more‑than‑doubling in modeled 2‑year runoff volume — and said the record lacked sufficient on‑the‑record testimony to establish the downstream impact and timing of that increased volume relative to the Raritan River's peak.

Committeeman Leani moved to affirm the board's previous denial based on the prior record supplemented by the limited materials presented this evening; the motion was seconded and, on roll call, Wagner, Smith, Leani, Vice Chair Pasen and Chair Shar Sarra voted yes. The motion carried. Board counsel said a revised written resolution reflecting the board's findings will be prepared and circulated for review and later adoption.

The board's action preserves its December 2025 denial while the parties return to court under the remand schedule. Counsel for the applicant and objectors were present and argued procedural and evidentiary points during the public portion; objectors emphasized that, without live testimony to support the NJDEP permits or operational claims, the board could not treat those submissions as fully probative evidence.