MICHAEL CAPPELLUTI et al. v. CITY OF UNION CITY PLANNING BOARD et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5876-05T15876-04T1

MICHAEL CAPPELLUTI and

ISABELLA CAPPELLUTI,

Plaintiffs-Appellants,

v.

CITY OF UNION CITY PLANNING BOARD and

ANTHONY R. MAUTONE,

Defendants-Respondents.

________________________________________________________________

 

Submitted April 5, 2006 - Decided June 6, 2006

Before Judges Weissbard and Winkelstein.

On appeal from Superior Court of New Jersey,

Hudson County, Law Division, L-6331-04.

Thomas J. Wall, attorney for appellant (Mr. Wall

and William R. Lindsley, of counsel and

on the brief).

Ortiz, Paster & Campos, attorneys for respondent

City of Union City Planning Board (Wilfredo J.

Ortiz, II, of counsel; Monica Y. Cho, on the brief).

Ledesma, Diaz, Lopez & Noris, attorneys for

respondent Anthony R. Mautone (Adolfo L. Lopez,

on the brief).

PER CURIAM

Plaintiffs Michael and Isabella Cappelluti appeal the dismissal of their complaint in lieu of prerogative writs challenging the October 26, 2004 resolution of defendant Union City Planning Board (Board) granting subdivision and site plan approval to defendant Anthony R. Mautone's application for construction of two three-family homes on land contiguous to plaintiffs' property. We reverse and remand for new hearings before the Board.

Plaintiffs' own property at 210 Palisade Avenue in Union City where they live in a one-family home. Mautone is a developer who owns certain lots at 201 to 209 Manhattan Avenue, directly to the rear of plaintiffs' property. The area of Palisade Avenue where plaintiffs reside has no public sewer connection. The closest sewer connection is on Manhattan Avenue. In order to receive the necessary sewer service, plaintiffs possess an easement across the Mautone property in the form of a restrictive covenant in Mautone's deed.

On March 1, 2004, Mautone filed an application for subdivision and site plan approval of a development project on his property at 207 to 209 Manhattan Avenue. The application sought permission to subdivide the lot into two parts and build two three-family homes within five feet of the rear portion of plaintiffs' property. The Board gained jurisdiction over the application because the property is located in an R-1 zone, and the proposed lots did not conform with the requirements of the Union City ordinance.

Public hearings on Mautone's application took place on July 27, August 24, and September 28, 2004. At the first meeting on July 27, 2004, plaintiffs' counsel requested that Christopher Irizzary, a member of the governing body of Union City and a Board member, recuse himself from the proceedings. Without any argument, Commissioner Irizzary recused himself from further participation in the matter.

At the August 24, 2004 hearing, Mautone presented testimony from two expert witnesses in support of his application for "C" variances, N.J.S.A. 40:55D-70c, required to receive approval for subdivision of the subject property. First, Jose A. Izquierdo, a licensed architect and planner, described the proposal. He produced four drawings of the property and the proposed constructions, showing the general physical layout of the proposed buildings' interiors as well as the exterior landscape. Izquierdo described the project and explained that the narrow shape of the lot required a C-1 variance. The application also required a variance for the front yard, for one side of the yard, and for the rear yard. Another variance was required for the building coverage of one building. Izquierdo also lauded the beautiful views the homes would provide of the New York City skyline.

In addition, Mautone adduced testimony from certified planner Edward Kolling, who addressed zoning issues relative to the application. He discussed the statutorily mandated positive and negative criteria, N.J.S.A. 40:55D-70c, in order to show that the proposal was sound. With regard to the positive criteria, Kolling testified as follows: (1) the proposed structure is consistent with the development pattern in the area; (2) it is consistent with recent development, in that it comes close to conforming to the height and scale of surrounding houses, and it is well designed; (3) the project fulfills a need for owner-occupied housing in the City of Union City and promotes the general welfare; (4) the property can be subdivided and still have sufficient space for the proposed dwellings; and (5) it will promote a desirable visual environment.

Kolling also testified to the negative criteria. He explained: (1) this is a common type of development for a 25 by 100 foot wide lot; (2) the unique situation caused by a strangely designed lot makes strict application of the zoning ordinance a hardship on the owner; (3) creating three-family homes furthers the purpose of the zoning ordinance; (4) there is no substantial detriment to the neighborhood; and (5) the impact on the area is minimal because the development plan conforms with and helps to retain the character of the current neighborhood.

Cross examination revealed that sixty percent of the houses on the two blocks of Manhattan Avenue directly adjacent to the property were inconsistent with the new building. Further, no studies were conducted regarding how many two or three-family homes were available in Union City. Testimony also showed that the rear variance would have an impact on the contiguous properties located behind the proposed project, but that the impact would not be substantial.

At the September 28, 2004 hearing, plaintiff Michael Cappelluti expressed concern about rainwater causing spillage on his property, as it backs up into his basement and apartment during heavy rains. In response, Mautone presented expert testimony from Phillip Reeve, a project engineer from the North Hudson Sewer Authority (NHSA). Reeves had initially inspected the properties because of complaints about the rainwater backups. Three properties on Palisade had a common lateral pipe that conveyed flow through the empty lot into a manhole on Manhattan Avenue. The easement allowing the pipe to run across Mautone's property had been in existence since 1947.

After testifying that the current piping is out-dated and has structural deficiencies that cause the water backups, Reeves recommended "that the lateral [pipe] be located to the southern border of the property and that a permanent easement be established to ensure that the sewer service is maintained." He also stated that NHSA had no authority in this case because the laterals were located on private property, thus leaving the owner with complete control over the final decision about construction of the pipes. When asked if the new pipes would hook up to the new houses as well as the older houses, Reeves testified that he had not yet seen any plans for the proposal.

The hearing also established that plaintiffs' easement exists only until a sewer is constructed on Palisade Avenue such that the houses in question could link up directly to that sewer line. Mautone's counsel explained to the Board that his client never intended to eliminate plaintiffs' easement:

The only difference is we are giving him a brand new sewer, the same easements, with the same rights at no expense to him, to be provided directly by Mr. Mautone as part of the construction of this new property.

It is not our intention to eliminate his easement, it would be ludicrous to do so. We would have four houses or three houses without sewers. That's preposterous.

Plaintiffs' counsel submitted that this plan for a new sewer at Mautone's expense sounded agreeable, contingent on plaintiffs hiring an expert to review the plans.

Mautone's counsel proceeded to provide a brief explanation of the site plans:

Part of what's submitted to this board does not contain the actual construction drawings which would obviously contain the sewer. That would be part of what the building department dictates is proper for the site in cooperation with the North Hudson Sewer Authority. This is not the right forum.

We've certainly described what we propose to do and how we plan not to interfere with Mr. Cappelluti's easement in any way. The actual location of the sewer, that would be left to the building department to create what's most acceptable. Our plumbing inspector would make those decisions, not counsel and certainly not myself.

To confirm that some progress had been made in determining the easement's relocation, Mautone testified that an engineering firm he had retained affirmed that the NHSA's recommendation was the appropriate method of reconstructing the lateral piping. Mautone concluded by promising that the stipulations regarding the sewer easement would appear in the master deed.

After hearing several brief recapulations of the issues regarding the re-zoning of the property, including a parking issue and the uniqueness of the property leading to variance hardship, and noting that these issues had all been addressed over the three meetings on the proposed project, the Board Chairman moved for adoption and approval of the application, contingent upon the sewer stipulations discussed above. Despite having recused himself, Commissioner Irizzary cast an affirmative vote on the application after seven of the other members had already voted in the affirmative, and one had abstained. Plaintiffs' counsel did not object.

On October 26, 2004, the Board memorialized its vote in a resolution which reads, in pertinent part:

WHEREAS, the Union City Planning Board, having conducted various public hearings on said application. The final hearing on September 28, 2004, at which time the Board heard testimony of the applicant, the experts appearing in support of the application, neighbors, Mr. M. Cappelluti, represented by counsel, and the Board having opened the meetings to the public and having considered all of the evidence presented, makes the following findings of facts, conclusions of law and conditions of approval:

1. The applicant is the owner of the property with an address at 207- 209 Manhattan Avenue, Union City, New Jersey.

2. The Board acquired jurisdiction for a hearing upon the filing of application on and that the Applicant has properly published the notification of said hearing and notified the property owners which proof of publication and notification are on file with the Board.

3. There were various public hearings conducted, the final hearing on September 28, 2004 whereas the testimony of the witnesses were heard under oath, the witnesses were questioned by the Board, members of the public, the exhibits presented, the public's testimony heard and the applications prosecuted.

4. The property is located in the R1 Residential Zoning District.

5. The property is located on the West and Easterly side of Manhattan Avenue, South of 3rd Street, in the city of Union City, Hudson County, New Jersey. 207 Manhattan Avenue corresponds to lot 15 in block 191.01 with lot 5 in block 190.01 and 209 Manhattan Avenue corresponds to lot 16 in Block 191.01 with lot 6 in block 190.01.

6. The residential use of the property will help to preserve the character of the surrounding neighborhood and promote the conservation of the neighborhood value. The site is particularly suited for residential use because of its proximity to schools, parks facilities and transportation routes likely to be used by residents.

7. The Union City Zoning ordinance has among its general purpose . . . "to provide for adequate light, air and open spaces, to promote a desirable visual environment through creative development and promote the conservation of open space and valuable natural resources." The proposed project is consistent with the residential type of structure, schools, parks and residential neighborhood in the area. These man made features, social and institutional resources make the site appropriate for housing. The proposed project will not affect the continued use of this zone.

8. Hardship was found due to the pre-existing nature of the lot. The irregular shape of the rear lot line, the pre-existing undersize nature and the shallowness of the southern portion of the lot.

9. The Development of the property for residential use is consistent with the permitted uses in the zoning plan. The development will address a lack of owner occupied and new modern units in Union City and advance the purpose of the municipal land use law and zoning plan. The benefit of granting the variance would substantially outweigh any detriment.

10. The granting of the application will not result in a substantial detriment to the public good in that the provision of housing is generally beneficial to the general welfare, especially in an area of high population and demand. The continued use of the site for housing is compatible with the adjacent properties, and other residential uses and should therefore have no impact on the area. The granting of the variance will not impair the intent and purpose of the zoning ordinance.

NOW THEREFORE, BE IT RESOLVED, by the Planning Board of the City of Union City of this [26] day of October, 2004 that the within Application to subdivide the property 207, 209 Manhattan Avenue, into two (2) properties consisting of 207 Manhattan Avenue, lot 15 on block 191.01 with lot 5 on block 190.01 and 209 Manhattan Avenue, lot 16 on block 191.01 with lot 6 on block 190.01, and to construct two (2), three (3) family structures, one on each of the subdivided lot is hereby granted subject to the following:

1. Applicant must comply with the necessary requirements of the Zoning Ordinance of the City of Union City, conditions of approval set forth herein and the municipal Land Use of the State of New Jersey, N.J.S.A. 40:55D-1, et seq.

2. It is agreed that any transfer, conveyance or sale of the premises, in whole or in part, shall not operate to relieve the Applicant from its obligations hereunder without the express written consent of the Board.

3. The Applicant agrees, that, notwithstanding the terms and conditions of this resolution, the Applicant shall be bound and obligated to comply with any and all ordinances, codes and regulations of the City of Union City, County of Hudson and State of New Jersey or its entities.

4. The approval is subject to the sewer easement affecting lot 16 in Block 191.01.

Plaintiffs filed their complaint in lieu of prerogative writs challenging the approval on December 10, 2004. The Board filed an answer on January 4, 2005, and Mautone filed his answer on January 18, 2005. On June 6, 2005, after hearing argument, the court entered an order of judgment dismissing plaintiffs' complaint. This appeal followed, in which plaintiffs raise two arguments:

POINT ONE

THE ACTION OF THE PLANNING BOARD WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE AND CONTRARY TO THE PROOFS REQUIRED TO GRANT SUBDIVISION, SITE PLAN AND OTHER RELIEF.

POINT TWO

THE VOTE WAS TAINTED BY ONE COMMISSIONER'S PARTICIPATION.

We address the second issue first.

I

Plaintiffs argue that because Commissioner Irizzary recused himself, but still chose to vote on the application, the Board's approval was tainted and must be vacated in its entirety. We agree.

Plaintiffs' objected to Irizzary's participation because the Commissioner's private attorney represented an applicant in a different proposal, which was the subject of a pending lawsuit, in which plaintiffs' counsel was also involved. At that point, Irizzary agreed to recuse himself without contesting the issue. Thus, the record is devoid of any explanation of what personal interest, if any, Irizzary had in this matter; that is, we do not know if counsel's objection was the sole basis for the recusal or whether Irizzary had some other reason to step aside. However, Irizzary did vote at the end of the process, albeit only after the other seven members had unanimously voted to approve the application.

The Local Government Ethics Law states that no local government official or employee "shall act in his official capacity in any matter where he . . . has a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment." N.J.S.A. 40A:9-22.5d. Implementing that law, Union City Ordinance 19-31(a) provides that: "whenever any such member shall disqualify himself from acting on a particular matter, he shall not continue to sit with the board in the hearing of such matter nor participate in any discussion or decision relating thereto."

The basic question in such cases is whether the board member, "by reason of a personal interest in the matter, is placed in a situation of temptation to serve his own purposes, to the prejudice of those for whom the law authorizes him to act." S & L Assocs., Inc. v. Washington, 61 N.J. Super. 312, 329 (App. Div. 1960), aff'd in part, rev'd in part on other grounds, 35 N.J. 224 (1961). The issue is necessarily fact sensitive and depends on the specific circumstances of each case. Aldom v. Roseland, 42 N.J. Super. 495, 503 (App. Div. 1956) (citing Gland v. Mayor, etc., North Arlington, 13 N.J. Misc. 521 (Sup. Ct. 1935)). A showing of actual dishonesty is not required; it is the appearance of partiality that must be avoided. Wyzykowski v. Rizas, 132 N.J. 509, 524 (1993) (citing Aldom, supra, 42 N.J. Super. at 503).

Plaintiffs cite to Szoke v. Zoning Bd. of Adjustment, 260 N.J. Super. 341 (App. Div. 1992), for the proposition that any participation by a board member after his or her recusal merits reversal. In that case, we did state that participation by a disqualified member of a board of adjustment requires the reviewing court to void the board's decision "if that participation was capable of forming a substantive part of the deliberative process." Id. at 343. However, Szoke differs significantly from the case at hand.

The disqualified member in Szoke participated in the hearing in a significant way on three separate occasions and made two substantive statements recommending that the board decide in favor of using the land in a way that was beneficial to the applicant. Id. at 344. We determined that even though he did not vote, the member's participation was capable of affecting the deliberations, and therefore "poisoned the spirit of impartiality with which the Board's quasi-judicial proceedings must be governed." Id. at 345 (citing Baghdikian v. Bd. of Adjustment Ramsey, 247 N.J. Super. 45, 48 (App. Div. 1991)). The fact that the member in Szoke did not vote was inapposite because "distinguish[ing] between substantive participation in the deliberative process and the technical vote would elevate form over substance." Ibid. "The evil of apparent partiality - the perception of less than a fair shake - inheres in the clearly expressed participation in the deliberative process by one whose own conscience required abstinence." Ibid.

As plaintiffs concede, Irizzary did not appear to participate in the Mautone proceedings in any substantive manner at all. Further, his vote came after the other seven members had voted unanimously to approve the application. Nevertheless, according to the leading commentator:

When a member is disqualified from acting, either upon the member's own initiative or a board determination that the member has an interest in the subject matter of the application, the member should physically remove himself from the presence of the board and either leave the room or take his place among the general public or in the place reserved for the general public. Said disqualified member may not sit with the board either in public or private session thereafter at any time that the board is considering the particular application. (He is not, of course, disqualified from sitting on other matters.) Where a board member after disqualification continues to sit with the board, even though he takes no active part in consideration of the application, the board's action may be set aside by a reviewing court. See Scott v. Bloomfield, 94 N.J. Super. 592, 600-601 (Law Div.), aff'd on other grounds, 98 N.J. Super. 321 (App. Div. 1967), appeal dismissed, 52 N.J. 473 (1968); Aldom v. Borough of Roseland, 42 N.J. Super. 495, 500 (App. Div. 1956); Darrell v. Governing Body of Twp. of Clark, 169 N.J. Super. 127, 132-33 (App. Div. 1979), aff'd on other grounds, 82 N.J. 426 (1980).

[William M. Cox, New Jersey Zoning and Land Use Administration, 3-2 at 55 (2005).]

The trial judge undertook to analyze the apparent reason for Irizzary's recusal, that being the argument advanced by plaintiffs' attorney at the first hearing. Having done so, she found that there was no conflict that required his recusal. Thus, it followed that Irizarry's vote was unobjectionable. While it may be that the reason advanced for Irizzary's disqualification was insufficient, we have no need to address that question at this time. As we have observed, Irizzary never explained why he was recusing himself so we are unable to conclude that the stated reason was the actual reason. More importantly, the record is not clear whether Irizzary participated in the deliberative process which led to approval of the Mautone application. On August 24, 2004, the first date on which testimony was taken on the Mautone application, the record reflects that Irizzary was present. However, there were eight other matters addressed at the session, and it may be that Irizarry participated in those. On September 28, 2004, Irizarry was again present, and there were eight matters considered in addition to the Mautone case. Again, we might assume that Irizzary was present only to participate in the other proceedings. However, it was on that date that Irizzary voted in favor of the Mautone application. Irizzary was not present, and did not vote, on October 26, 2005 when the memorializing resolution was approved.

While we have considered the possibility of a remand to explore the question of Irizzary's participation and the reason for his recusal, we ultimately conclude that such an inquiry would be unproductive. Irizzary's voting to approve the application after hearings in which he either did not participate or participated when he should not have, requires that we vacate the proceedings and remand for a new hearing before the Board.

II

Since there must be a new hearing, we address plaintiffs' argument that the Board's resolution was inadequate in order to provide guidance on that issue on remand.

Recognizing that the Legislature has vested the municipality, through the Zoning Board of Adjustment, with discretion in deciding whether to grant a specific variance, New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 305 N.J. Super. 151, 165 (App. Div. 1997), rev'd on other grounds, 160 N.J. 1 (1999), we give deference to the Board's determination, absent a finding that it acted in an arbitrary, capricious, or unreasonable manner. Trinity Baptist Church of Hackensack v. Louis Scott Holding Co., 219 N.J. Super. 490, 498 (App. Div. 1987). Therefore, there is a rebuttable presumption that the public body has correctly exercised its discretion; stated differently, the Board's decision is "'presumptively valid.'" New Brunswick Cellular Tel. Co., supra, 160 N.J. at 14 (quoting Smart SMR of New York, Inc. v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998)). Thus, we must determine whether the Board's decision "'is supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion.'" Ibid. We accord a Board wide latitude to exercise its delegated discretion due to its "'peculiar knowledge of local conditions.'" Witt v. Borough of Maywood, 328 N.J. Super. 432, 453 (Law Div. 1998) (quoting Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965)), aff'd, 328 N.J. Super. 343 (App. Div. 2000). The challenging party bears the burden of proving that the Board's action was unreasonable. Lincoln Heights Assoc. v. Twp. of Cranford Planning Bd., 314 N.J. Super. 366, 389 (Law Div. 1998), aff'd, 321 N.J. Super. 355 (App. Div.), certif. denied, 162 N.J. 131 (1999).

The starting point from which all local land use decisions are reviewed involves explicating the memorializing resolution passed by the Board. In order to do so, the Board's findings of fact and conclusions of law must be embodied in the resolution. N.J.S.A. 40:55D-10g; Gridco, Inc. v. Zoning Bd. of Twp. of Hillside, 167 N.J. Super. 348, 350 (Law Div. 1979). Under N.J.S.A. 40:55D-70d, a Board may grant a use variance "upon: a) an affirmative showing of "special reasons" (the "positive criteria"); together with b) a showing that the variance, if granted, will not result in substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance (the "negative criteria")." Pagano v. Zoning Bd. of Adjustment of the Twp. of Edison, 257 N.J. Super. 382, 389 (Law Div. 1992). These required factfindings cannot merely recite testimony from the hearings or conclusory statements framed in statutory language, N.Y. SMSA v. Bd. of Adjustment, 370 N.J. Super. 319, 332-33 (App. Div. 2004) (citing Harrington Glen, Inc. v. Bd. of Adjustment of Leonia, 52 N.J. 22, 28 (1968)), but instead must set forth sufficient findings, "based on the proofs submitted, to satisfy a reviewing court that the board has analyzed the applicant's variance request in accordance with the statute and in light of the municipality's master plan and zoning ordinances." Id. at 333. Failure to do so deprives a reviewing court of its ability to properly decide whether the Board's decision was correct, ibid., mandating remand where the rest of the record is unclear. Id. at 335; see also Lincoln Heights, supra, 314 N.J. Super. at 386.

In Witt, supra, 328 N.J. Super. at 454-55, we found the Board's resolution inadequate. First, the resolution granted approval in a conclusory manner, without explaining the reasons behind the positive and negative criteria. Id. at 454. There was nothing on the record allowing the trial court to even start to explain the process. Ibid. The resolution did not describe what type of variance the Board was granting. Id. at 454-55. Thus, we concluded that where the Board did not even attempt to provide an explanation for its conclusion, effective review was rendered impossible. Id. at 454.

Even more recently, in Smith v. Fair Haven Zoning Bd. of Adjustment, 335 N.J. Super. 111, 123 (App. Div. 2000), we found that a resolution was "woefully inadequate." In that case, the resolution failed to explain what "undue hardship" authorized the Board to grant the variance. Ibid. Further, the resolution did not describe the characteristics of the land or structure that provide for improved zoning under a c(2) variance. Ibid. We concluded that the appropriate remedy was to remand to the Board for reconsideration and specific factfindings. Ibid.

Similar to the resolution in Witt, the resolution here presents basic information regarding the application but fails to specify what variances are being granted. While the resolution mentions undue hardship based on the "preexisting nature of the lot," specifically its shape and small size, there is no reference to the relevant variances at all. Therefore, we do not know which of the variances requested by the applicant were granted by the Board.

Further, the resolution failed to specifically mention either positive or negative criteria, even though testimony on the record discussed those points. While the resolution mentions that the application accords with the permitted uses in the zone and that granting the application will not result in substantial detriment to the community, the Board concludes, without providing any analysis specific to the application, that "[t]he benefit of granting the variance would substantially outweigh any detriment." At the hearing, plaintiffs' counsel cross-examined Kolling regarding how substantial an impact the project might have on the surrounding properties and regarding the accuracy of his assessment of the positive and negative criteria. That testimony is not referenced in the resolution at all, making it impossible for us to determine which factors influenced the Board to grant the variance, and how the Board determined that the subdivision was appropriate in this case, as opposed, for example, to simply forcing the applicant to build a single home on the property, which would have required fewer variances.

Defendants argue that, despite the insufficiency of the resolution, the record from the several hearings serves to demonstrate all of the information necessary to explain the Board's final decision. In other words, because the Board made what defendants contend is a well-reasoned decision based on the application, the testimony proffered by the applicant, various experts, and members of the public, any omissions in the formal resolution should not mandate reversal. Essentially, defendants contend that we should incorporate the testimony into the resolution and deduce from that information: (1) what variances were granted, and (2) the reasons why the Board granted those variances. Contrary to defendant's argument, however, remarks memorialized in the transcripts cannot be assumed to reflect the findings of the entire Board. N.Y. SMSA, supra, 370 N.J. Super. at 333-34. Rather, the statutory requirements of N.J.S.A. 40:55D-10g can only be fulfilled by the written resolution itself, ibid., using the evidence adduced at the hearings, i.e., "deliberative and specific findings," Lincoln Heights, supra, 314 N.J. Super. at 386, as a means of explaining how the Board reached its final conclusions in the matter. Morris County Fair Hous. Council v. Boonton Twp., 228 N.J. Super. 635, 647 (Law Div. 1988). Thus, even though the record is replete with positive descriptions of the project, we lack the ability to determine what guided the Board's decision, thus rendering any effective review of the decision impossible. Witt, supra, 328 N.J. Super. at 454-55.

As a result of the inadequacy of the resolution, the matter would, in any event, be remanded to the Board "for reconsideration and specific findings" at which time the Board "may in its discretion require further proofs." Smith, supra, 335 N.J. Super. at 123. On remand, the Board should adhere to these principles.

Reversed and remanded for further proceedings consistent with this opinion.

 

The pipes were made out of clay, which cracked, and was then susceptible to attracting roots from trees during drought times. Reeves stated that a newer lateral would be made of PVC piping, which is impervious to roots, and that should be laid on a better grade, without any dips and sags. Mautone would be required to build this new lateral piping at his own expense, to the benefit of plaintiff and the other contiguous property owners that share the current old, problematic lateral pipe.

(continued)

(continued)

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