KENNETH GEWERTZ, et al. v. THE DIOCESE OF CAMDEN, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3980-03T53980-03T5

KENNETH GEWERTZ,

Plaintiff-Appellant,

and

NANCY PENZA and CARMEN PENZA,

ROBERT ADAMS and ELIZABETH ADAMS,

and SAMUEL M. RACOBALDO,

Plaintiffs,

v.

THE DIOCESE OF CAMDEN, and

THE ZONING BOARD OF ADJUSTMENT OF

THE TOWNSHIP OF DEPTFORD,

Defendants-Respondents.

__________________________________

KENNETH GEWERTZ,

Plaintiff-Appellant,

v.

THE MAYOR AND COUNCIL OF THE

TOWNSHIP OF DEPTFORD and

THE DEPTFORD TOWNSHIP PLANNING BOARD,

Defendants-Respondents.

_____________________________________

 

Argued January 30, 2006 - Decided May 25, 2006

Before Judges Cuff, Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket Nos. L-1678-02 and L-0094-03.

Andrew J. Karcich argued the cause for appellant Kenneth Gewertz (Lynch & Karcich, attorneys; JoAnne Eskin Sutkin and Mr. Karcich, on the brief).

Samuel J. Ragonese argued the cause for respondent Zoning Board of Adjustment of the Township of Deptford (Ragonese, Albano & Viola, attorneys).

Harvey Johnson argued the cause for respondent Township of Deptford (Wolf, Block, Schorr, and Solis-Cohen, attorneys; James P. Pierson, on the brief).

James W. Burns argued the cause for respondent Deptford Township Planning Board (Zeller & Bryant, attorneys; Mr. Burns, on the brief).

PER CURIAM

Plaintiff, Kenneth Gewertz, appeals from an order of the Law Division entered on March 3, 2004, that granted summary judgment dismissing his two complaints in lieu of prerogative writs: 1) challenging the grant of a use variance to the defendant, The Diocese of Camden (Diocese) for the construction of a parochial high school, Docket No. L-1678-02; and 2) challenging the adoption of revisions to the Township of Deptford's (Township) Master Plan and an amendment to the Township's Unified Development Ordinance (UDO), Docket No. L-94-03.

The combined statement of facts and procedural history is as follows. The Diocese is the contract purchaser of fifty seven and six-tenths acres of property known as Block 418, Lots 1, 2, 4, 5, and 6 (collectively, the "Property") on the tax map of the Township, Gloucester County. The Property fronts on Blackwood-Barnsboro Road, and is bordered on the east by Route 55, on the south by a tributary of the Mantua Creek known as Bees Branch Run, and on the west by Salina Road. Gloucester County Community College is located to the north of the Property in an educational corridor with other institutions, including the Monongahela Middle School and the Gloucester County Institute of Technology.

The Property was originally located in the R-40 low density residential zone. The R-40 zone permits as principal uses: single-family detached dwellings, public playgrounds, natural conservation areas and parks, community residences and shelters, agriculture uses, and senior citizen and congregate care housing. The UDO permits as conditional uses in the zone: commercial recreational uses, places of religious worship, fraternal organizations, cemeteries or memorial parks, continuing care facilities, certain types of community residences, and daycare centers.

On April 12, 2002, the Diocese filed an application with the Zoning Board for a D-1 use variance, N.J.S.A. 40:55D-70d(1) to permit the construction of a parochial high school to accommodate 1,600 students and 100 faculty members. The proposed plan also included two parking lots to accommodate 565 motor vehicles, and 3 recreational areas for football, soccer, and baseball.

The public hearing on the application commenced on May 7, 2002. Plaintiff, owner of a residence adjacent to the Property and fronting on Salina Road, attended the hearing, and opposed the application. On the first evening of the hearing, the Township's planner, Marc R. Shuster, advised the Zoning Board and the public that he had previously "testified and been a client to a sub for the Auxiliary Corporation of the Diocese in the past," but "that project was complete sometime ago. I am not now under any contractual obligation."

The Diocese presented testimony in support of its application from Father Hughes, Secretary for Catholic schools in the Diocese and President of the high school; Laurence M. DiVietro, a site engineer and planner; and Jerry A. Canter, a traffic expert. Hughes testified concerning demographic studies showing a need for a parochial high school in Gloucester County. DiVietro described the conceptual plans for the project. He opined that the project was an inherently beneficial use, and would promote the public good by reducing the impact and burden on the community's educational system, continuing the educational corridor in that area, generating 45% less impervious cover than a residential development, improving road development, and reducing environmental degradation of the stream corridor caused by farm erosion and pesticides. He further opined that the grant of a use variance "will not substantially impair the intent [or] purpose of the zoning and master plan," and "will not be a substantial detriment to the health, safety and welfare."

Cantor testified concerning traffic problems in the surrounding area, and described how the project would provide an opportunity to resolve those problems. It was his opinion that there would be "no substantial negative impact as a result of the traffic generated by the high school," provided that all of the suggested improvements were made. Following Cantor, the Zoning Board heard comments from the public, including plaintiff, who raised concerns over various issues including traffic congestion and environmental impacts.

Following the May hearing, Shuster issued a letter dated June 13, 2002, to the Zoning Board that addressed the positive and negative criteria governing the grant of a D-1 variance. In the letter, he opined that the inherently beneficial use of the school would outweigh any detrimental effects caused by identified traffic impacts provided the Township's traffic expert agreed with the Diocese's proposed solutions to those impacts. Shuster further opined that he did not believe there were any other identified or apparent detrimental impacts, or that there would be any substantial impairment to the R-40 zone. The Zoning Board also received a letter dated June 17, 2002, from its traffic consultant, James M. Colangelo, stating that the projected traffic impacts would be mitigated by the improvements recommended in the conceptual traffic impact study.

On June 19, 2002, plaintiff presented testimony from Paul F. Szymanski, a professional planner. Szymanski agreed that a school is inherently beneficial, but identified several potential negative impacts that he stated required further study, including the proposed expansion of the initial 160,250 square foot building to 250,000 square feet; lighting of athletic fields; traffic impacts; and the school's effect on local home values. He also testified that the use of the Property for a school would substantially impair the purpose of the 1996 master plan update that had reduced the size of the Township's institutional zone to permit more single-family homes and open space. He concluded that "from a planning point of view, in my opinion, it [the use variance] smacks of a substantial impairment of the inherent purpose of the zone plan. And I think it should fail, in my opinion, on that fact alone." Lastly, acknowledging his awareness that the Planning Board was in the process of its six-year master plan reexamination, Szymanski opined that the issue would be better handled by the Planning Board. "I really think that this application . . . could be considered as part of the comprehensive planning process of Deptford Township and handled in that manner, that would take it through the comprehensive master plan review and the comprehensive re-zoning by the government body[,] rather than as a use variance . . . ."

Plaintiff also presented testimony from Charles Poliero, a licensed real estate appraiser. He opined that the construction of the school would negatively impact property values by 8% to 10%. As to plaintiff's residence, he stated that the impact would be significant because of the increased traffic on Salina Road, and that plaintiff's property would be surrounded on two sides by the school. On July 9, 2002, the Zoning Board approved a motion granting the use variance subject to conditions. On August 6, 2002, the Zoning Board memorialized the grant of the variance in a resolution stating that "a school qualifie[d] as an inherently beneficial use, and therefore satisfie[d] the positive criteria for the granting of a use variance," "special reasons" existed for the relief sought, and the relief could "be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the Zoning Plan or Zoning Ordinance." The resolution enumerated conditions of approval, including but not limited to, the requirement that the Diocese "address improvements to the road system to handle the anticipated vehicular traffic."

On September 12, 2002, plaintiff filed his first complaint against the Diocese and the Zoning Board challenging the grant of the use variance allowing construction of the new high school.

On October 9, 2002, the Deptford Township Planning Board (Planning Board) conducted a public hearing on its six-year reexamination of the Township's master plan pursuant to N.J.S.A. 40:55D-89. For nine or ten months prior to that date, the Planning Board had held approximately six subcommittee meetings that were open to the public concerning the reexamination. The 2002 master plan revisions included a recommendation that "[t]he institutional zone at Gloucester County College should be extended to include the proposed Gloucester Catholic High School site." The institutional zone permits schools as conditional uses. Plaintiff appeared at the hearing, and spoke in opposition to the rezoning of the Property. At the close of the public hearing, the Planning Board voted approval of the master plan revisions.

On November 12, 2002, the Mayor and Council of Deptford Township introduced on first reading, Ordinance No. 0.20.02 that amended the Township's UDO by making changes in zoning districts, design standards, and adopted the official zoning map consistent with the land use and housing plan elements of the 2002 master plan update, as recommended by the Planning Board. The ordinance included a provision rezoning the Property from low density residential to institutional. On November 14, 2002, the Planning Board adopted Resolution No. 2002-30 memorializing its approval of the 2002 master plan revisions. The resolution incorporated by reference the 2002 master plan revision report, including the recommendation that the institutional zone be extended to include the proposed Gloucester Catholic High School site, the Property. On the same date, the Planning Board considered proposed Ordinance No. 0.20.02 that had been referred to it by the Mayor and Council, and adopted a resolution recommending its passage pursuant to N.J.S.A. 40:55D-26.

On December 2, 2002, plaintiff filed a protest to the adoption of Ordinance 0.20.02, pursuant to N.J.S.A. 40:55D-63, as it affected property known as Block 418, Lots 1, 4, 5 and 6. After hearing comments concerning the ordinance, including objections from plaintiff's attorney, the Mayor and Council adopted the Ordinance by a vote of six in favor, none against, and one abstention.

On January 14, 2003, plaintiff filed his second complaint under Docket No. L-94-03 against the Mayor and Council of Township of Deptford, and the Planning Board, challenging the adoption of the master plan update and Ordinance No. 0.20.02 requesting a judgment: 1) voiding the Planning Board's adoption of the master plan revisions; 2) requiring the Planning Board to reconsider its decision; and 3) disqualifying Shuster and "other professionals to the Planning Board with similar conflicts of interests" from participating in the reconsideration.

On March 21, 2003, the trial court denied plaintiff's motion for discovery concerning potential conflicts of interest, including whether any of the Zoning Board members were members of the Roman Catholic Church or of the Diocese, and whether Shuster fully disclosed all relevant information concerning his former involvement with the Diocese. On June 24, 2003, an order was entered consolidating the two actions.

Judge Stanger heard oral argument on cross-motions for summary judgment on September 9, 2003. On October 14, 2003, Judge Stanger issued a written opinion concerning plaintiff's challenge to the use variance under Docket No. L-1678-02. After concluding that there was substantial credible evidence in the record to support the Zoning Board's determination, the judge dismissed plaintiff's complaint, thereby sustaining the grant of the use variance. On November 19, 2003, Judge Stanger issued a second written opinion addressing plaintiff's challenges to the master plan revisions and the zoning ordinance amendment. Determining that there were no disputed issues of material fact, the judge granted summary judgment in favor of defendants, and dismissed plaintiff's second complaint under Docket No. L-94-03.

On appeal, plaintiff raises the following issues for our consideration:

POINT I.

THE ACTIONS OF THE ZONING BOARD CONSTITUTED IMPERMISSIBLE REZONING UNDER THE GUISE OF THE GRANT OF A USE VARIANCE.

POINT II.

THE ZONING BOARD ACTED IN AN ARBITRARY, CAPRICIOUS AND UNREASONABLE MANNER WHEN IT GRANTED THE USE VARIANCE IN CONTRAVENTION OF THE STANDARDS OF THE MUNICIPAL LAND USE LAW AND DEPTFORD TOWNSHIP'S ZONING AND PLANNING ORDINANCES.

1. THE STANDARD OF PROOF AND STANDARD OF REVIEW BELOW.

2. THE DIOCESE FAILED TO MEET ITS BURDEN OF PROOF FOR THE GRANT OF THE USE VARIANCE.

a. THE GRANT OF THE USE VARIANCE IS SUBSTANTIALLY DETRIMENTAL TO THE PUBLIC GOOD.

b. THE GRANT OF THE USE VARIANCE SUBSTANTIALLY IMPAIRS THE INTENT AND PURPOSE OF THE ZONE PLAN AND ZONING ORDINANCE.

POINT III.

THE PLANNING BOARD, MAYOR AND COUNCIL ACTED ARBITRARILY AND UNREASONABLY IN REZONING THE SUBJECT LAND BY REVISING THE MASTER PLAN AND ADOPTING ORDINANCE 0.20.02.

1. THE PLANNING BOARD, MAYOR AND COUNCIL FAILED TO USE SOUND JUDGMENT AND APPROPRIATE PLANNING IN THE ADOPTION OF THE REVISIONS TO THE MASTER PLAN AND IN THE ADOPTION OF ORDINANCE 0.20.02.

2. THE PLANNING BOARD'S ACTIONS WERE ARBITRARY, CAPRICIOUS AND INCONSISTENT IN ITS TREATMENT OF THE SUBJECT PROPERTY AND ADDITIONAL PROPERTIES ADJACENT TO, SURROUNDING OR IN THE GENERAL VICINITY OF THE GEWERTZ PROPERTY.

3. THE PLANNER FOR THE PLANNING BOARD, MARC R. SHUSTER[,] HAD A CONFLICT OF INTEREST WHICH WAS NOT DISCLOSED IN THE PRESENTATION OF THE PROPOSED REVISIONS TO THE MASTER PLAN, SUCH THAT THE REVISIONS TO THE INSTITUTIONAL ZONE ARE VOID AND OF NO AFFECT.

4. OTHER PROFESSIONALS TO THE PLANNING BOARD ALSO PROVIDED PROFESSIONAL SERVICES TO THE DIOCESE ON PREVIOUS OCCASIONS AND FOR OTHER ENTITIES RELATED TO THE DIOCESE AND FAILED TO DISCLOSE THEIR CONFLICTS OR POTENTIAL CONFLICTS OF INTEREST SUCH THAT THE REVISIONS TO THE MASTER PLAN REGARDING THE INSTITUTIONAL ZONE ARE VOID AND OF NO AFFECT.

5. THE PLANNING BOARD, MAYOR AND COUNCIL FAILED TO FOLLOW PROPER PROCEDURE AFTER THE OBJECTORS FILED THEIR PROTEST AND ACCORDINGLY THEIR ACTIONS WERE NULL AND VOID.

POINT IV.

PLAINTIFF[-]APPELLANT'S REQUEST TO SUPPLEMENT THE RECORD AND TAKE DISCOVERY SHOULD HAVE BEEN GRANTED.

We do not address the issues raised under Points I and II because the contract purchaser abandoned its plan and the Zoning Board determined that the variance was surrendered. We have carefully considered plaintiff's arguments under Points III and IV in light of the record and applicable law. We conclude the issues presented are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(A) and (E). The motion judge properly concluded that the evidence presented by plaintiff did not create a genuine issue of material fact under Rule 4:46-2. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We affirm substantially for the reasons expressed by Judge Stanger in his comprehensive and thoughtful written opinion of November 19, 2003.

Affirmed.

 

The complaint filed under Docket No. L-1678-02 named as plaintiffs Kenneth Gewertz, Nancy Penza, Carmen Penza, Robert Adams, Elizabeth Adams, and Samuel M. Racobaldo. All plaintiffs except appellant withdrew from the proceedings below on March 21, 2003. Accordingly, all references in this opinion to plaintiff refer solely to Kenneth Gewertz.

Subsequent to the filing of the notice of appeal from that part of the order granting summary judgment dismissing plaintiff's complaint under Docket No. L-1678-02, this court was advised that the Diocese publicly announced that it "[was] no longer pursuing the high school project" for which the use variance had been granted. Because of the public announcement, the Zoning Board of Adjustment of the Township of Deptford (Zoning Board) adopted a resolution on June 14, 2005, declaring that "the application for a use variance by the Diocese of Camden previously granted on July []9, 2002, is considered surrendered." Accordingly, we determine that the use variance granted to the Diocese to construct a parochial high school that was the subject matter of the lawsuit under Docket No. L-1678-02 is null and void, causing the appeal from that portion of the order dismissing that complaint moot. Because, however, the issues raised on the appeal from dismissal of the complaint under Docket No. L-94-03 are partially premised on matters raised before the Zoning Board on the use variance application, we reference those proceedings herein.

Counsel for the Diocese stated that the Diocese had previously retained Shuster for an application in the Township of Upper Pittsgrove through its Vicariate for Human Services, a non-profit corporation and a subsidiary of the Diocese that operates nursing homes and the like.

N.J.S.A. 40:55D-63 provides in pertinent part:

A protest against any proposed amendment or revision of a zoning ordinance may be filed with the municipal clerk, signed by the owners of 20% or more of the area either (1) of the lots or land included in such proposed change, or (2) of the lots or land extending 200 feet in all directions therefrom inclusive of street space, whether within or without the municipality. Such amendment or revision shall not become effective following the filing of such protest except by the favorable vote of two-thirds of all the members of the governing body of the municipality.

Although plaintiff's brief references Lot 2 as also being included in the notice of protest, the notice contained in the appendix only references Lots 1, 4, 5 and 6. Because plaintiff has consistently challenged the use of all five lots for a proposed high school, we consider the omission as inadvertent and deem the notice of protest as having referenced all five lots for purpose of appeal.

(continued)

(continued)

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A-3980-03T5

May 25, 2006