SALVATORE CANGIANO v. THE TOWNSHIP OF BERNARDS PLANNING BOARD et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6510-03T26510-03T2

SALVATORE CANGIANO,

Plaintiff-Appellant,

v.

THE TOWNSHIP OF BERNARDS

PLANNING BOARD and THE

TOWNSHIP OF BERNARDS,

Defendants-Respondents.

___________________________________

 

Submitted October 6, 2005 - Decided

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, docket no. L-253-03.

Lee C. Honecker, attorney for appellant.

Stickel, Koenig & Sullivan, attorneys for respondent The Planning Board of the Township of Bernards (Stuart R. Koenig and Lisa A. John, on the brief).

Respondent Township of Bernards did not file a brief.

PER CURIAM

Appellant, who wants to develop his environmentally- compromised Bernards Township property, appeals the dismissal of his in lieu of prerogative writs complaint challenging the Township Planning Board's denial of his preliminary subdivision application. We affirm.

Appellant owns five lots in Bernards Township. These lots total 185.175 acres and are in a R-1 zone, which requires a minimum three-acre building lot. Because of substantial wetlands on the property, there are only about thirty-five buildable acres. Appellant submitted an application to the Planning Board on August 16, 2000, proposing to divide the property into twelve lots. The proposed lots range in size from 3/4 acres to 23 acres.

Of importance to this appeal are two provisions of the Township's Zoning Ordinance relating to destruction of trees that will be necessitated by a development and an assessment of the development's impact upon the environment. As to the tree destruction provisions, an application for subdivision must include a tree identification plan and an application for tree removal permit. Bernards, N.J., Code 21-54.4(24). The ordinance includes extensive details on how to comply with the requirement, including listing all trees of a certain size that will be removed and their location, and explaining the purpose for the tree removal. Id. at 21-45.3(a),(b). It requires that removed trees be replaced. Alternatively, the ordinance permits, in lieu of planting trees and at the discretion of the Planning Board, contribution to a Township Tree Fund. Id. at 21-45.4(a),(b). Appellant submitted only a partial plan covering common areas affected by initial development and three proposed lots. He sought a deferral as to the remaining lots, and requested that compliance be determined by the Township engineer at a later date. The Township engineer agreed and thought the deferral would "make sense" because of the uncertainty of the location of the homes that would be built on the lots.

There were ten public hearings on the application. Throughout these hearings, the Board debated the possibility of granting a deferral to appellant on the remaining lots. The Board members expressed concern about deferring the requirements of the tree removal ordinance until the building permit stage because of the potential for noncompliance by individual homeowners. Additionally, they expressed concern that appellant could avoid replanting trees by writing a check to the town's tree bank. Objectors to the proposal also had an expert testify that the deferral should not be approved because of the mature forest located on the property, urging that the Board should "scrutinize" all of the lots to limit unnecessary destruction of such trees.

In addition to the tree removal provisions, the ordinance requires an "Environmental Impact Assessment" (EIA). Bernards, N.J., Code 21-54.6(m). The EIA must include a description of the development plan, an inventory of existing natural resources, a discussion of unavoidable adverse environmental impacts, steps to minimize environmental damage, and alternatives to the proposed project that may avoid some or all of the adverse environmental effects. Id. at 21-54.6(m)(3).

Part of appellant's EIA addressed endangered species that had been sighted on the property, i.e., red-shouldered hawks and wood turtles. Appellant's environmental consultant prepared the assessment, and upon examination by the Board, it was determined that he was unqualified to reach that conclusion. Appellant then had a wildlife expert testify. He had surveyed the property on January 8, 2002, for six hours. Although there were six inches of snow on the ground, he testified that he covered the entire property and gave it "a fairly thorough inspection." And, of course, since neither the hawk nor the turtle would be active on the site at that time of year, he found no evidence of either. The record is clear, however, that both had been sighted in the area and that the property could be habitats for both. As to the red-shouldered hawks, the expert thought the property would offer only limited use because of the property's small size and human development. He also said he found evidence of use by red-tailed hawks, which are, he claimed, enemies of red-shouldered hawks. However, he admitted that because he did not conduct his inspection during the breeding season for the hawks, he did not follow the New Jersey Department of Environmental Protection (DEP) protocol. As to the wood turtles, the expert admitted that the site "might provide suitable habitat particularly for resting and feeding wood turtles" and admitted that at the time he was at the site, the turtles would be hibernating.

In addition, the EIA addressed the issue of noise, but appellant did not hire a noise consultant and no actual noise measurements were taken. Rather, the EIA estimated the noise level to be 65 to 75 decibels, and asserted that that was normal and acceptable. The EIA offered the observation that the further away from Route 287 the houses were, the less noise problem there would be.

Opponents of the subdivision proposal offered their own experts. Their environmental expert testified that the proposed development would have an adverse impact on the endangered red-shouldered hawk and potentially on the endangered wood turtle, pointing out the reports from the DEP of sightings of the red-shouldered hawk in 1998 and the wood turtle in 2000 on or around the property. She pointed out that appellant's plan failed to analyze alternatives that would avoid or minimize the adverse impacts upon these endangered species.

A noise expert also testified for the objectors. Appellant's property is adjacent to Route 287 which is the main source of noise. The expert pointed out that appellant did not measure the actual noise levels at the site. Her own measurements near the property line resulted in a reading of 76 decibels. The Department of Transportation requires mitigation where decibel levels are above 66.

The Board denied the application. In its March 4, 2003, written resolution, it found that appellant did not satisfy the tree removal or the EIA ordinance provisions. As to the tree removal provisions, the Board rejected appellant's requests to defer full compliance and to delegate review of the deferred portion to the Township Engineer. Because appellant had not provided information as to all tree removal that would be necessary, the Board was "prevented . . . from exercising the review and decision called for under the Ordinance."

As to the EIA, the Board found that "the applicant seemed to minimize the environmental impact upon the wildlife[,]" mainly as a result of the wildlife consultant's "cursory investigation" of the property, and concluded that the investigation was not reliable. This is certainly not surprising as the winter site inspection obviously would not have produced any active sightings of red-shouldered hawk or wood turtles. And, too, the Board found the noise impact assessment deficient.

Our review of a planning board's determination is no different than that of the trial judge. Park Ctr. at Route 35, Inc. v. Zoning Bd. of Adjustment of the Twp. of Woodbridge, 365 N.J. Super. 284, 288 (App. Div. 2004). There is a presumption that the board acted fairly and the review should not address whether the decision was "wise or unwise." Ibid. (citations omitted). A planning board has broad discretion and its decision should not be reversed unless it is found to be arbitrary, capricious, or unreasonable. Bressman v. Gash, 131 N.J. 517, 529 (1993). See also Cell S. of N.J. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81-82 (2002). This was recognized by the trial judge when she affirmed the Board's denial. In this respect, she said:

Tree Removal

Code of Township of Bernards, Section 21-54.4a (24) requires an applicant to:

- show the location of the existing tree canopy

- label areas to be removed and to be preserved

- show location of individual trees with a diameter at breast height (DBH) equal to or greater than 6 inches

- identify by size or species within the limit of disturbance plus 30 ft. beyond the limit of disturbance

- provide a list of all trees to be removed and a list of replacement trees

Section 21:45.3 requires the applicant to submit to the Planning Board an application for a tree removal permit. The ordinance is specific in its requirements. Pursuant to the ordinance, the applicant must submit plans for tree removal, preservation and mitigation.

This Plaintiff did not do. Nonetheless, he asserts that during the May, July and November public hearings, Plaintiff and the Planning Board's professional consultants provided expert testimony supporting Plaintiff's compliance with the tree removal ordinance.

Initially, the applicant requested a waiver or exception from the requirement of the ordinance to submit a tree identification plan and application for tree removal permit. (January 22, 2002 hearing, transcript p.4 L 24 - p.5 L 8)

During the November 14, 2002 hearing, the position was clarified with Plaintiff's attorney indicating that Plaintiff was requesting a deferment and that the decision concerning tree removal be determined "administratively" (i.e., by the Planning Board engineer's office).

There was some discussion that subdivision plans do not show specific improvements but provide "typical" locations for improvements (May hearing, p.21, L1-15), and therefore it may be necessary to defer the requirements to show tree disturbance on individual lots at the preliminary stage until the time of actual lot development (May 29-30 L 17-20 & L 1-5). Moreover, Township engineer Peter Messina agreed a deferment would make sense and told the Planning Board that at the time of the actual disturbance, a tree removal plan is provided (July transcript p. 116 L 19-22).

However, the Ordinance in question quite clearly provides that the applicant is required to provide a list of all trees to be removed and provide a list of replacement trees. Accordingly, the Planning Board's reliance on the requirement of the ordinance and Plaintiff's failure to satisfy the requirements can hardly be said to be arbitrary, capricious or against the weight of the evidence presented.

Whether or not Mr. Messina confirmed that Plaintiff was not requesting a waiver or that he felt the Plaintiff had satisfied the requirement is of no moment. Plaintiff readily asserts that he requested a deferment from showing which trees would be removed. Accordingly, Plaintiff did not meet the requirements of the ordinance at the time of his application.

The Planning Board determined that it would not grant a waiver or deferment. The Planning Board further determined that it could not delegate authority for the review and approval of an essential element of the plan. The court notes that the record is clear that the site in question is environmentally sensitive, and this factor was a strong consideration in the Planning Board's determination.

Plaintiff ultimately argued that he did not require a waiver or exception because his application had been deemed complete. However, during the course of the November 2002 hearing, information was provided to the Planning Board that the tree removal issue was not addressed at [the] time of completeness.

The code in question clearly requires submission of the tree removal information to be made to the Planning Board. Here the Planning Board denied Plaintiff's request for a deferment and for the issue to be determined administratively at a later time.

The Planning Board's determination not to permit a waiver or . . . deferment was within its discretion.

The Planning Board relied upon the provisions contained in the ordinance. Consistent with the opinions set forth in Pizzo Martin Group v. [Twp.] of Randolph, 137 N.J. 216 (1994), the Planning Board acted appropriately in doing so.

Nothing submitted to this court or appearing in the record reflects any authority for the Planning Board engineer or administrative staff to approve tree removal or tree protective provisions. Moreover, the Planning Board acted appropriately in denying the application where, as here, fundamental elements of the plan were not submitted. In Field v. [Mayor & Council of Twp. of Franklin], 190 N.J. Super. 326 (App. Div.), [certif. denied, 95 N.J. 183 (1983),] the court determined "If the applicant fails to provide sufficient information on the fundamental elements of his plan, preliminary approval should be denied." Id. at 333.

This court finds nothing arbitrary, capricious or unreasonable in the Planning Board's conclusion that Plaintiff failed to provide the specific tree removal information required by the ordinance.

Plaintiff also argues that his approach to tree removal was conducted in the same manner as the Planning Board had handled subdivisions since the inception of the ordinance.

First, there has been no evidence in support of this assertion by Plaintiff. Second, Plaintiff has failed to cite any authority to support the proposition that it is arbitrary or capricious of the Planning Board to refuse to grant him an exception or deferment.

. . . .

The ordinance in question, Code of the Township of Bernard, Section 21-54.6m requires the submission of an environmental impact assessment (EIA). Pursuant to the requirements of this ordinance, the assessment must include, among other things, noise characteristics and levels, impact/evaluation of aquatic and terrestrial wildlife and a discussion of alternatives to the proposed project.

In furtherance of Plaintiff's EIA, the Planning Board heard testimony from Kenneth Scarletti, a certified wildlife biologist and wetlands scientist. Mr. Scarletti had been hired to assess the suitability of the property as a breeding habitat for the red-shouldered hawk and potential habitat for wood turtles.

Mr. Scarletti offered the opinion that his six hour walk of the site (12 hours including Mr. Krueger's walk) was sufficient to give the site an adequate inspection. He further testified that he found red-tailed hawks on the site. The presence of red-tailed hawks on the site makes it unlikely that a red-shouldered hawk would establish a nest on the site, according to Mr. Scarletti.

Scarletti testified that he had reviewed 180 acres in six hours while [six] inches of snow covered the ground. The Planning Board rejected this testimony because they were skeptical that Scarletti could cover 32 acres an hour. They further rejected the testimony because Scarletti told them that he could not say that red-shouldered hawks and wood turtles were not on the site and that although the NJDEP protocol is to look for red-shouldered hawks in breeding season, he did not follow this protocol because he was asked to do the inspection in January and the breeding season does not start until March.

Clearly the Planning Board had serious questions regarding the reliability of Scarletti's testimony. Simply because one is qualified to provide expert testimony does not mean that a Board is required to accept that testimony as [a] reliable and accurate opinion. Here, Scarletti conceded that he had not followed protocol of the NJDEP. Moreover, his claim to have walked a site at the pace of 32 acres an hours caused not unreasonable skepticism among Board members, and the Planning Board specifically rejected the extent of the investigation as unreliable.

Moreover, the Planning Board properly determined that Plaintiff had failed to address the issue of noise levels, although this is a specific topic required to be contained in the assessment, by virtue of the ordinance. Testimony was presented by an objector who produced as expert, Sharon Carpenter. Ms. Carpenter testified as to the level of decibels - her reading was 76 decibels. She further testified that the NJ Dept. of Transportation requires mitigation over a level of 66 decibels. Plaintiff offered no rebuttal or direct evidence on this issue.

The facts in this case are readily distinguishable from the case cited by Plaintiff in support of the proposition that the Planning Board was unreasonable in rejecting the testimony of its own expert.

In Sprint Spectrum, L.P. v. Borough of Upper Saddle River Zoning Bd. of Adjustment, 352 N.J. Super. 575 (App. Div.), cert[if.] denied, 174 N.J. 543 (2002), the Court found that a Board's rejection of its experts' testimony regarding the issue of sufficient of cellular coverage in the municipality was unreasonable because the expert had based his opinion on sufficient information.

Here that is not the case. Plaintiff's expert conceded certain deficiencies in his inspection including a time of the year [that] would not be conducive to making a determination as to whether the wood turtle or red-shouldered hawk were present on the site. This Court does not find that the Planning Board acted unreasonably in rejecting Scarletti's testimony as well as its own experts' opinion, to the extent they were based upon the investigation Scarletti had conducted. In addition, the board heard testimony of the experts presented by objectors which contradicted the Plaintiff's experts. In the Sprint matter, three experts were presented and each expert's opinion was consistent with the others.

In the instant matter the Board had sufficient basis upon which to reject, or at the very least question, the expert testimony of Plaintiff's experts and the statements of Mr. Cosgrove which were based upon those expert's opinions.

The Planning Board is not required to accept the testimony of its own experts or Plaintiff's experts. "A Board is free to accept or to reject the opinions of a planner proffered by an applicant or objector. Hawrylo v. Bd. of Adjustment, 249 N.J. Super. 568, 579 (App. Div. 1991); see also El Shaer v. Planning Board of Twp. of Lawrence, 249 N.J. Super. 323, 329 (App. Div.) [, certif. denied, 127 N.J. 546 (1991),] where the court held that the Board is not bound by expert testimony.

Accordingly, the court rejects Plaintiff's argument that the Board acted in an arbitrary, capricious or unreasonable manner in rejecting the testimony of expert witnesses, whether the Board's, Plaintiff's or the objector's witness. The Board heard conflicting expert testimony and determined that the EIA submissions were not adequate.

On appeal, appellant contends:

POINT I: THE PLANNING BOARD ACTED ARBITRARILY, UNREASONABLY, AND CAPRICIOUSLY IN DENYING THE PRELIMINARY SUBDIVISION APPLICATION AND AS A RESULT OF THE TRIAL COURT RULING UPHOLDING THE DENIAL MUST BE REVERSED.

POINT II: THE APPLICANT SATISFIED THE REQUIREMENTS OF THE MUNICIPAL TREE REMOVAL ORDINANCE.

POINT III: THE PLANNING BOARD UNREASONABLY REJECTED THE OPINIONS OF THEIR CONSULTANTS, WHO AGREED THAT APPLICANT SATSIFIED THE REQUIREMENTS OF THE MUNICIPAL TREE REMOVAL ORDINANCE.

POINT IV: THE RECORD DOES NOT SUPPORT A FINDING THAT A SUBMISSION WAIVER FROM TREE REMOVAL ORDINANCE REQUIREMENTS WAS NOT GRANTED.

POINT V: THE APPLICANT SATISFIED THE REQUIREMENTS OF THE ENVIRONMENTAL IMPACT ORDINANCE.

POINT VI: THE PLANNING BOARD UNREASONABLY REJECTED THE OPINIONS OF THEIR CONSULTANTS, WHO AGREED THAT APPLICANT SATISFIED THE REQURIEMENTS OF THE ENVIRONMENTAL IMPACT STATEMENT ORDINANCE.

We have considered these contentions in light of the record, the applicable law and the trial judge's decision. We agree with her conclusion that the Board's denial was not arbitrary, capricious or without support in the record. The issues raised on appeal are of insufficient merit to require further opinion. R. 2:11-3(e)(1)(E).

 
Affirmed for the reasons set forth by Judge Julie Marino in her April 26, 2004, written decision.

(continued)

(continued)

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A-6510-03T2

October 19, 2005