HUDSON ESSEX PASSAIC SOIL CONSERVATION DISTRICT v. PLANNING BOARD OF THE BOROUGH OF NORTH CALDWELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3990-06T53990-06T5

HUDSON ESSEX PASSAIC

SOIL CONSERVATION DISTRICT,

a governmental subdivision

of the State of New Jersey,

Plaintiff-Appellant,

v.

PLANNING BOARD OF THE BOROUGH

OF NORTH CALDWELL and

THE BOROUGH OF NORTH CALDWELL,

Defendants-Respondents.

_________________________________

 

Argued January 14, 2008 - Decided

Before Judges Collester and C.S. Fisher.

On appeal from Superior Court of New Jersey,

Law Division, Civil Part, Essex County,

Docket No. L-6956-06.

David Owen argued the cause for appellant

(Rabner, Allcorn, Baumgart & Ben-Asher,

attorneys; Mr. Owen and Fredda Katcoff, on

the brief).

Lance N. Olitt argued the cause for respondent Planning Board of the Borough of North

Caldwell (Mandelbaum, Salsburg, Gold, Lazris

& Discenza, attorneys; Mr. Olitt, on the

brief).

David M. Paris argued the cause for respondent

Borough of North Caldwell (Piro, Zinna,

Cifelli, Paris & Genitempo, attorneys, join in

the brief of respondent Borough of North

Caldwell).

PER CURIAM

Plaintiff Hudson Essex Passaic Soil Conservation District (HEP-SCD) appeals from the February 16, 2007 final order of Judge Peter V. Ryan denying plaintiff's motion for a declaratory judgment and from the order of March 30, 2007 denying reconsideration. We affirm.

The New Jersey Soil Conservation Act, N.J.S.A. 4:24-1 to

-34, established soil conservation districts, which are State agencies with responsibility for soil conservation, prevention of soil erosion, and enforcement of the Soil Erosion and Sediment Control Act, N.J.S.A. 4:24-40 to -55. HEP-SCD, the designated soil conservation district for the counties of Hudson, Essex and Passaic and a governmental subdivision of the State, is "a public body corporate and politic" and an agency of the State. N.J.S.A. 4:24-2a and f; N.J.S.A. 4:24-22. Its powers include the formulation and enforcement of regulations respecting the use of land in the interest of conserving soil and preventing erosion, N.J.S.A. 4:24-23 and 27, as well as certifying plans for soil erosion and sediment control relating to applications for land development. N.J.S.A. 4:24-43. Its governing body consists of five supervisors who are residents of the district and are appointed by the State Department of Agriculture Soil Conservation Committee. N.J.S.A. 4:24-2.1 and 18.

For the past twelve years the HEP-SCD has maintained its headquarters at 15 Bloomfield Avenue in North Caldwell between a parking lot of a strip mall and a large building. The HEP-SCD building is non-conforming as it exceeds certain setback and bulk restrictions, but these deviations date back to a time prior to the purchase of the property by HEP-SCD. Its use is as an office building in which HEP-SCD's four employees review applications for erosion control certifications and where its business records are stored.

On October 21, 2005, HEP-SCD filed an application with the North Caldwell Planning Board (Board) for preliminary and final site plan approval as well as for variances from the North Caldwell zoning ordinances in respect to minimum front footage, minimum lot size, minimum front and side setback, and parking space size and number. At a November 7, 2005 conference meeting of the Board and counsel for the HEP-SCD, the Board expressed concern that the building was already oversized for its lot and that the inadequate parking would be increased. During the meeting the issue was raised as to whether HEP-SCD was immune from the zoning regulations which would obviate the need for Board approval. As a result, HEP-SCD withdrew its application and subsequently filed its complaint on August 17, 2006 for a declaratory judgment of immunity from North Caldwell land use regulations. Cross-motions for summary judgment were filed and on February 16, 2007 Judge Ryan heard argument and denied the motion by plaintiff HEP-SCD and its complaint for declaratory judgment. He gave the following rationale for his decision:

The function of the land involved is that of a mere business office used by four full-time employees of HEPSCD. The extent of the public interest served by the operation of this particular business office is limited to helping the agency in carrying out its administrative functions. The site has no direct relationship with any public interests and is not related to soil erosion or prevention. The local ordinance at issue in this matter relate to restrictions as to yard setbacks and parking space size and number.

These ordinances in no way interfere with HEPSCD's fulfillment of the soil conservation functions. The local ordinance primarily benefits the local residents by protecting the interest of neighboring properties, who may be subject to negative traffic and parking ramifications. They could be caused as a result of a failure to enforce these municipal ordinances.

There is no inconsistency between the plaintiff's statutory purpose of protecting soil through conservation and the prevention of erosion and the requirement of submitting its plans for business or office expansion before the defendant Planning Board.

. . . .

On the basis of that, the Board finds that the application for a declaratory judgment or summary judgment should be denied for the reasons set forth above. As for the motion on behalf of the North Caldwell Planning Board, I'm also going to deny that without prejudice.

Judge Ryan denied plaintiff's motion for reconsideration on March 30, 2007, stating that he was "not persuaded that HEP-SCD cannot relocate to another site that is just as adequate, if better suited, to support its office size if it is unwilling or unable to conform to North Caldwell's municipal regulations."

Our scope of review of the conclusions of law by a trial court is de novo. Manalapan Realty L.P. v. Township of Manalapan, 140 N.J. 366, 378 (1995). Both sides agree that the controlling precedent is Rutgers v. Piluso, 60 N.J. 142 (1972), in which the University sought to increase the number of available family units for graduate students by construction of 374 garden apartments. Because it had already exceeded the maximum number of units permitted by Piscataway, the requested building permits were denied. Our Supreme Court determined that the University had immunity from the municipal regulation because the restriction on campus housing interfered with the University's need to attract graduate students who are indispensable to the education of undergraduate students. In determining whether in a particular case a State agency is immune from municipal zoning regulations, the Court set forth a multi-factor balancing test grounded in legislative intent.

The rationale which runs through our cases and which we are convinced should furnish the true test of immunity ... is the legislative intent ... with respect to the particular agency or function involved.... All possible factors cannot be abstractly catalogued. The most obvious and common ones include the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests.

[Id. at 150.]

Subsequently, in Shupack v. Manasquan Regional Sewer Authority, 194 N.J. Super. 199, 204-05 (App. Div. 1984), we held that the regional sewer authority created by the Legislature was required to obtain site plan approval subject to land use ordinances because the purpose of the authority to control pollution did not conflict with the requirement of site plan approval and compliance with municipal ordinances.

Similarly, in the case at bar we find no inconsistency between enforcement of the zoning ordinance and the purposes of the soil conservation district which is stated in the enabling legislation as "the control and prevention of soil erosion . . . the prevention of damages to soil and soil resources by flood water or by sediment and the furtherance of conservation of water for agricultural purposes." N.J.S.A. 4:24-1.1. While the bulk zoning ordinances would interfere with the planned development of the administrative offices of HEP-SCD, that does not satisfy the test. The issue is whether the ordinances conflict with the agency's ability to effectively fulfill its statutory mandate. We find that the ordinances in question do not "thwart the legislation's design and purpose." Rutgers, supra, 60 N.J. at 152.

Affirmed.

 

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A-3990-06T5

January 7, 2009