CORNELL HEIGHTS ASSOCIATION, et al. v. HAMILTON TOWNSHIP PLANNING BOARD and THE COLUMBIA GROUP AT HAMILTON, LLC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5597-04T55597-04T5

CORNELL HEIGHTS ASSOCIATION,

SCOTT LINDSAY and JOHN MANOS,

Plaintiffs-Appellants,

and

DENNIS PONE,

Plaintiff,

v.

HAMILTON TOWNSHIP PLANNING BOARD and

THE COLUMBIA GROUP AT HAMILTON, LLC,

Defendants-Respondents,

and

AMERICAN STANDARD, INC.,

Defendant.

_______________________________________

 

Argued March 22, 2006 - Decided April 28, 2006

Before Judges Parker and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Mercer County,

L-0030-05.

Michael P. Balint argued the cause for appellants (Law Office of Michael P. Balint, attorneys; David J. Kenny, of counsel and on the brief).

Michael W. Herbert argued the cause for respondent Hamilton Township Planning Board (Herbert, Van Ness, Cayci & Goodell, attorneys; Mr. Herbert, of counsel and on

the brief; Rachel U. Doobrajh, on the brief).

Raymond S. Papperman argued the cause for respondent The Columbia Group at Hamilton (Stark & Stark and Greenbaum, Rowe, Smith Ravin, Davis & Himmel, attorneys; Mr. Papperman and Douglas K. Wolfson, of counsel and on the brief).

PER CURIAM

Plaintiff Cornell Heights Association appeals from a final order in an action in lieu of prerogative writs that upholds defendant Hamilton Township Planning Board's approval of defendant Columbia Group's final site plan application. Plaintiff contends that deficiencies in the procedures before the Board require reversal. We affirm substantially for the reasons stated by Judge Feinberg in her written decision of May 16, 2005.

On appeal, plaintiffs present the following arguments:

I. THE PLANNING BOARD IMPROPERLY DENIED THE

RIGHT OF CROSS-EXAMINATION TO THE

OBJECTORS.

II. THE PLANNING BOARD ACTED ARBITRARILY AND

CAPRICIOUSLY IN REFUSING TO CONTINUE THE

HEARING TO A SECOND DATE.

The process that culminated in the Board's approval of this site plan commenced on December 12, 2002, with a resolution authorizing the Board to consider whether this area of Hamilton Township should be designated as a redevelopment zone. This hearing on a fully conforming site plan was held on October 28, 2004, after proper notice. The hearing commenced at 7:00 p.m. and continued until 1:20 a.m. Forty-one members of the public were permitted to testify and raise questions, in accordance with a procedure announced at the beginning of the hearing. The questions were posed by either the Chairman of the Board or the attorney for the Columbia Group.

We agree with Judge Feinberg's conclusion that neither the procedure for cross-examination nor the failure to continue the hearing undermined the fundamental fairness of the hearing, the purposes of the Municipal Land Use Law, N.J.S.A. 40:55D-1

to -163 or resulted in prejudice to plaintiffs.

N.J.S.A. 40:55D-10d provides the right of cross-examination "to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses." Although the practice employed in this hearing may not be the practice envisioned by the Legislature, we see no basis for disturbing the decisions below.

A large number of interested parties wanted to testify and pose questions, and there was a need for an orderly and efficient hearing. There were few issues the Board was permitted to consider on this application for approval of a conforming site plan. Pizzo Mantin Group v. Twp. of Randolph, 137 N.J. 216, 232-33 (1994). Plaintiffs point to only one question about fire safety that was not posed to a witness during the hearing, but the issue was addressed in a report prepared by the Fire Captain. That report was before the Board.

Under these circumstances, we see no abuse of the presiding officer's discretion to set reasonable limitations on the testimony or cross-examination and no prejudicial impact on plaintiffs' legitimate rights or interests. See Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 277 (1965) (noting failure to demonstrate harm from the time selected for the hearing); DeMaria v. JEB Brook, LLC, 372 N.J. Super. 138, 146-49 (L. Div. 2003) (considering issues before the Board, participation permitted and impact of procedural error on fairness); see also Virgin Islands Hotel Ass'n, Inc. v. Virgin Islands Water & Power Auth., 476 F.2d 1263, 1268-69 (3d Cir.) (discussing use of written questions in a public hearing involving a matter of interest to a large number of persons), cert. denied, 414 U.S. 1067, 94 S. Ct. 576, 38 L. Ed. 2d 472 (1973).

Affirmed.

 

Defendant American Standard was dismissed by stipulation of the parties on January 21, 2005. Plaintiff Dennis Pone withdrew from the appeal.

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A-5597-04T5

April 28, 2006