DANIEL FINN et al. v. LEBANON TOWNSHIP PLANNING BOARD et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 4982-04T14982-04T1

DANIEL FINN and CHRISTINA GOOD,

Plaintiffs-Appellants,

v.

LEBANON TOWNSHIP PLANNING BOARD

and DAVID C. KLIPSTEIN,

Defendants-Respondents.

__________________________________________

 

Argued April 26, 2006 - Decided June 14, 2006

Before Judges Conley and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County,

L-300-04.

James H. Knox argued the cause for appellants (Gebhardt & Kiefer, attorneys; Susan R. Rubright, on the brief).

John P. Gallina argued the cause for respondent Lebanon Township Planning Board.

James Laughlin III argued the cause for respondent David C. Klipstein (Coppel, Laughlin & Blount, attorneys; Mr. Laughlin, on the brief).

PER CURIAM

Plaintiffs Daniel Finn and Christina Good appeal the decision of the trial court affirming the determination of the Lebanon Township Planning Board (Board) granting a variance and subdivision approval to defendant David C. Klipstein for the creation of three new lots from a 53.78-acre tract located in a zone designated as Resource Conservation (RC), where the minimum lot size is 7.5 acres. Plaintiffs contend the trial court erred when it found that an informal meeting, convened to discuss the variance application, did not taint and void the subsequent proceedings, which ultimately resulted in the grant of the variance by the Board, whose actions plaintiffs contend were arbitrary, capricious, and unreasonable. We affirm.

Plaintiffs are the owners of property located on Route 513 in Califon, New Jersey. Defendant is the owner of an adjoining 53.78-acre tract known as Block 24, Lot 17, located on the southwest corner of the intersection of Route 513 and Hickory Run Road. Defendant proposed to subdivide the tract into three lots. Specifically, he planned to construct a home on one of the lots less than 200 feet from plaintiffs' residence. Additionally, the plans called for construction of a 550-foot long driveway across the lot with slopes of fifteen to twenty-five percent, and setbacks for the house from Route 513 of 260 feet, also with slopes of fifteen to twenty-five percent.

Defendant applied to the Lebanon Township Planning Board for the following variance relief:

1. Variance relief for the front yard setback of the existing dwelling on the lands remaining lot. Lebanon Township's RC Zone requires a 50 foot front yard setback, and the existing structure, after the right of way dedication, would only be 39.65 feet.

2. Proposed Lots 17.02 and 17.03 would not be accessed from public road, but would be accessed from a Class III common driveway, which would require variance relief under N.J.S.A. 40:55D-36.

3. The location of the proposed house on Lot 17.01 would be constructed within an area having slopes between 15% and 25%, requiring variance relief from Lebanon Township Ordinance 18- 2.4f1.(b).

The application was deemed complete on September 16, 2003. The first public hearing on the application took place on November 4, 2003. The next hearing was scheduled for December 16, 2003, but on November 25, 2003, the Board, without notice to the public, had what the Board called a "conceptual hearing," during which defendant and his engineer presented alternative plan layouts. The public hearing resumed on December 16, 2003, and was slated to continue on January 20, 2004.

On January 15, 2004, plaintiffs' counsel wrote to the Board to advise that plaintiffs objected to the hearing going forward as scheduled because of improper notice and because the Board had conducted an "illegal 'informal' hearing on November 25, 2003 after the commencement of the formal public hearings that was not noticed, contrary to the requirements of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., requiring that the matters discussed at that meeting be reheard at a properly noticed hearing." See Stewart v. Planning Bd. of the Twp. of Manalapan, 334 N.J. Super. 123, 129-30 (Law Div. 1999). Plaintiffs appeared with counsel at the meeting and reiterated their objections on the record. Defendant agreed to "renotice this application and come back in a few weeks when this additional variance has been specifically added to the notice, even though the objectors are here this evening." Counsel on behalf of the Board advised the Board and all those present at the hearing that if the applicant was going to renotice, a new initial hearing date would be given for everything and the applicant would have to start again from the beginning. Defendant's counsel stated, "We will start all over again, I understand." Plaintiff's counsel did not object to proceeding in this manner.

The new hearing commenced on February 17, 2004. Plaintiffs and their attorney again appeared and objected to the proceeding going forward, but this time for another reason. Plaintiffs contended defendant's application was not complete because the plans submitted by the defendant did not comply with the new storm water management regulations that went into effect February 2, 2004. Defendant's expert, John Hansen, a licensed professional engineer and a licensed planner, testified:

MR. HANSEN: I think the issue with the stream corridor is what we're talking about. There is new regulation from the DEP, the stormwater regulation. It's got two parts. One is a design part that certain requirements, design requirements, that have to be implemented for projects over an acre disturbance. And the other part is that a 300 foot buffer on category one waters and/or tributaries to those waters be shown on plans.

Now, your stream corridor ordinance in this case is more restrictive than the State's. And the conservation easement that we have shown on these plans, which is also our -- it's designated on our plans as proposed stream corridor conservation easement, encompasses not only the 300 foot buffer required from Hickory Run, but also this tributary that the opposition is speaking to.

Our conservation easement, if you can follow my finger, comes around, goes into our property boundary with Lot 32.08 to become contiguous with the existing conservation easement on that property and then comes down and follows the wetland transition area along the Hickory Run Brook.

Now, the only area that you might say it deviates from the State standard is this area in here where it's 150 feet from the banks. However, there's an area of the regulation that allows for that exception, and I'll read that straight from N.J.A.C. 7:8. It says that, '300-foot special water resource protection area shall be provided on each side of the waterway, measured perpendicular to the waterway from the top of the bank outwards, or from the centerline of the waterway where the bank is not defined.'

Then it says, 'Encroachment within the designated special water resource protection area under (h)1 above shall only be allowed where previous development or disturbance has occurred (for example, active agricultural use, parking area or maintained lawn area.) Maintained lawn area and active agricultural use are ongoing in that area.'

It says, 'Encroachment shall only be allowed where applicant demonstrates the functional value and overall condition of the special resource protection area will be maintained to the greatest extent practical and may be reduced down to 150 feet.'

My reading of the regs and my conversations with Sandy Blick from NJ DEP, I believe that we conform to the State regulations, as well as your ordinance, with this stream corridor line shown on the plan at this time.

With the agreement from defendant that he intended to comply with Department of Environmental Protection (DEP) regulations, the Board elected to proceed with the hearing. The hearing continued on March 2 and April 6, 2003.

During the March 2, 2003, hearing, plaintiffs attempted to introduce, as part of their case, three plans prepared on behalf of defendant by Ferraro Engineering that had previously been discussed at the informal meeting on November 25, 2003. Defendant objected to the Board's consideration of those plans as they were not part of the application the Board deemed complete, nor presented to the Board for consideration when the new hearing commenced on February 17, 2004. Plaintiffs argued that previously the "Board had the benefit of looking at these plans. And if that's going to be part of your decision making, then I want to mark this." The Board discussed the propriety of considering plans not part of an applicant's submission. Ultimately, by a six-to-three vote, the members determined the plans could be introduced by plaintiffs. At the conclusion of the April 6, 2004, proceedings, the Board voted unanimously to approve defendant's application subject to conditions. The Board's decision was adopted in a Memorializing Resolution at its meeting of May 18, 2004.

On July 19, 2004, plaintiffs filed a Complaint in Lieu of Prerogative Writ seeking judgment against the Board and defendant, declaring the decision of the Board to be invalid as arbitrary, capricious and unreasonable, and directing the Board to vacate and deny the subdivision and variance approvals. A hearing on the matter was conducted on April 8, 2005, before Judge Peter A. Buchsbaum. The judge considered the submissions and the arguments of counsel. In addition, on the previous day, the judge conducted a site visit pursuant to Lazovitz v. Berkley Heights Bd. of Adjustment, 213 N.J. Super. 376, 382 (App. Div. 1986). In a written opinion dated April 18, 2005, the Board's decision was affirmed.

In affirming the Board's decision, the court specifically found that defendant complied with the dictates of Stewart. The judge concluded:

It is thus clear that defendants here followed the teachings of Stewart. In effect, plaintiffs are saying that the hearing could never be redone unless there was a rehash of all the discussion deemed to be improper. Nothing in Stewart counsels that result.

In fact, the only carry over was the determination that the application had been deemed complete. However, that had occurred in October and was an administrative matter. What is important is that all the testimony was redone in accordance with Stewart. Accordingly, this Court is satisfied that an independent record was created following a determination of hearings in January, that there is no evidence to suggest that the Board relied on the presumption testimony in reaching its conclusion, and hence that the hearings were conducted well within the requirements of the Municipal Land Use Law. The plaintiffs themselves were the only ones to inject the prior proceedings into the three valid substantive hearings only further suggests how inconsistent they are in claiming that the Board relied on hearings that were never even mentioned later except for the plaintiffs brought them up.

On the merits of plaintiffs' argument, the judge concluded "[t]here is enough in the record concerning the viewscape, the hedgerow and the preservation of open land to rationalize the Board's decision" that the configuration chosen was a better zoning alternative.

Plaintiffs submit the following points for consideration on appeal:

POINT I

THE TRIAL COURT INCORRECTLY FOUND THAT THE INFORMAL, UNNOTICED MEETING AT WHICH THE BOARD EFFECTIVELY MADE ITS DECISION TO APPROVE THE PLAN AND THE VARIANCE FOR LOT 17.01 DID NOT TAINT AND VOID THE PROCEEDINGS AND THE GRANT OF THE APPLICATION.

POINT II

THE TRIAL COURT ERRED IN AFFIRMING THE BOARD'S GRANT OF THE SUBDIVISION AND THE VARIANCE FOR LOT 17.01 AS THE BOARD'S ACTIONS WERE NOT ENTITLED TO A PRESUMPTION OF VALIDITY AND WERE ARBITRARY, CAPRICIOUS AND UNREASONABLE.

We have considered plaintiffs' contentions in light of the record and applicable law. We are convinced plaintiffs' substantive claims were fully and correctly addressed and require no further discourse. R. 2:11-3(e)(1)(E).

Affirmed for the reasons given by Judge Buchsbaum in his written decision of May 18, 2005.

 

By the conclusion of the hearings, plaintiffs no longer objected to the variance and subdivision application on this basis.

(continued)

(continued)

9

A-4982-04T1

June 14, 2006