JONATHAN WISHNIA v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF WARREN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JONATHAN WISHNIA,

Plaintiff-Appellant,

v.

ZONING BOARD OF ADJUSTMENT OF

THE TOWNSHIP OF WARREN and

BAC CENTER OF EXCELLENCE, LLC,

Defendants-Respondents.

______________________________

November 19, 2014

Submitted November 20, 2013 Decided

Before Judges Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1828-11.

Jonathan C. Wishnia, appellant pro se.

Ventura, Miesowitz, Keough & Warner, P.C., attorneys for respondent, Zoning Board of Adjustment of the Township of Warren (Steven K. Warner, of counsel and on the brief).

Porzio, Bromberg & Newman, P.C., attorneys for respondent, BAC Center of Excellence, LLC (Peter J. Wolfson, of counsel; Peter J. Gallagher, on the brief).

The opinion of the court was delivered by

MAVEN, J.A.D.

Pro se plaintiff, Jonathan Wishnia, appeals from the Law Division order dismissing his prerogative writs action arising out of his challenge to an application submitted by defendant BAC Center of Excellence, LLC (BAC) to defendant Zoning Board of Adjustment for the Township of Warren (Board), for minor subdivision and preliminary and final site approval of a proposed aquatic center. Plaintiff urged the Board erred: (1) in its interpretation of Ordinance 93-24 (Ordinance), specifically Section 16.11.4(c); (2) in concluding that BAC's proposed project constituted a permitted conditional use; (3) in failing to grant him automatic relief; and (4) in imposing escrow fees upon him. Judge John J. Coyle, Jr., rejected each of plaintiff's contentions. We affirm.

On appeal, plaintiff presents the following arguments

POINT I: THE IMPROPERLY DECIDED ISSUES BEFORE THE ZONING BOARD WERE LEGAL IN NATURE, AND, ACCORDINGLY, A DE NOVO REVIEW IS WARRANTED.

POINT II: THE MLUL CONTAINS A STRICT AUTOMATIC APPROVAL PROVISION FOR APPEALS AND, AS THE BOARD FAILED TO RENDER A TIMELY DECISION UNDER THE MLUL, PLAINTIFF IS ENTITLED TO REVERSAL.

POINT III: EVEN IF AUTOMATIC APPROVAL UNDER THE MLUL IS NOT REQUIRED, THE ZONING OFFICER'S DETERMINATION WAS GROSSLY ERRONEOUS AND THE FACILITY IS NOT A PERMITTED CONDITIONAL USE; ACCORDINGLY, PLAINTIFF IS ENTITLED TO REVERSAL.

1. The Zoning Officer's Determination Was Grossly Erroneous.

2. In Order to Find Deference to The Board, the Trial Court Improperly Modified the Application to Fit the Board's Improper Findings.

3. The Application Does Not Seek a Permitted Conditional Use.

POINT IV: ESCROW FEES ARE APPLICABLE UNDER THE MLUL ONLY TO APPLICATIONS FOR DEVELOPMENT; ACCORDINGLY, PLAINTIFF IS ENTITLED TO REVERSAL.

By way of background, BAC owns several contiguous properties within the R-65 (Rural Residential) Zone. The Ordinance established permitted uses within the R-65 Zone as including single-family homes, farms, volunteer fire company stations, large golf courses, and adult planned housing. In relevant part, Section 16-11.4(c) allows, as a conditional permitted use within the R-65 Zone

Private membership recreational activities and nonprofit recreation facility including facilities open to the general public offering activities limited to swimming, tennis, racket ball and handball courts, but not including commercial recreation uses wherein the principal use is an indoor activity consisting of exercise rooms, equipment, etc.

In early 2011, BAC applied to the Planning Board for minor subdivision and preliminary and final site plan approval of its proposed aquatic center. BAC described the development as

a 51,272 square foot building which will be utilized as an indoor swimming facility. The proposed building contains a swimming pool primarily dedicated to the training of participants in a competitive swim program, a pool dedicated to students enrolled in the swim school, and an aqua therapy facility, which will be used to rehabilitate physical injuries. . . . Locker rooms, offices, conference rooms, and other typical accessory spaces are also proposed within the facility.

BAC proposed to periodically offer the facility to the community, including senior citizens, and nearby high school swim programs.

In a letter to the Township Planning Board dated March 8, 2011, the Township Planner and Zoning Officer, John T. Chadwick, IV, P.P., noted that the plan submitted by BAC proposed a nonprofit aquatic center. Following his review of the application, site inspections, architectural and site plan reviews, and traffic impact and environmental assessments, he determined BAC's application for the aquatic center constituted a permitted conditional use in the R-65 Zone, within the meaning of Section 16-11.4(c), and no variances were proposed.

On March 28, 2011, the Planning Board held a duly noticed hearing on BAC's application. On April 6, 2011, before the Planning Board could act on BAC's application, plaintiff, pursuant to N.J.S.A. 40:55D-70(a), filed an appeal with the Board of the zoning officer's determination that the aquatic center was a conditional permitted use. Additionally, under N.J.S.A. 40:55D-70(b), plaintiff requested an interpretation of Ordinance Section 16-11.4(c).1 Plaintiff paid the required application fee to the Board, however, he objected to the assessment of an escrow fee required by Section 15-5.3. He argued that the MLUL did not permit this fee for appeals under N.J.S.A. 40:55D-70(a), or for requests for ordinance interpretations under N.J.S.A. 40:55D-70(b). On the advice of Board counsel, the Board notified plaintiff on May 17, 2011, that his application could not proceed until he submitted the $5000 escrow fee. On June 7, 2011, plaintiff paid the $5000 escrow fee, but reserved his right to contest its validity.2

The Board held public hearings on plaintiff's appeal and request for interpretation, on August 1, 2011, and again on September 19, 2011. The Board heard testimony and reviewed exhibits from plaintiff, Chadwick, Christian M. Kastrud, P.E., the Board engineer, and John McDonough, P.P., BAC's planner. The Board also heard legal argument from counsel for BAC and counsel for plaintiff and Stop the BAC Neighborhood Association.

At the conclusion of the hearing, the Board memorialized its findings and conclusions in a resolution adopted on October 3, 2011. As to the appeal of Chadwick's determination, the Board found that because the Ordinance for the R-65 zone "provides that the provider can be either a 'private membership recreational activity' or 'non-profit recreation facility'" the proposed swimming training facility was correctly determined to constitute a permitted conditional use within the meaning of Section 16-11.4(c).

As for plaintiff's request for an interpretation of Section 16-11.4(c), the Board looked to the Township Committee's intent as derived from the language of the Ordinance. The Board compared 16-11.4 (R-65 Zone) with Section 16-9.4 (EP-250 Agricultural-Residential Environmental Protection District)3 and determined that the two sections were deliberately drafted by the Township Committee to permit or prohibit certain uses within each zone. The Board found that "if the Township Committee intended to prohibit indoor pools and swimming activities as a permitted conditional use in the R-65 zone, then it would have expressly prohibited indoor pools in the R-65 zone, as it did in the EP-250 zone." Thus, based upon its analysis, and the testimony provided by Chadwick and McDonough, the Board interpreted Section 16-11.4(c) such that BAC's proposed use constituted a permitted conditional use.

Plaintiff filed an action in lieu of prerogative writs in which he (1) challenged the Board's interpretation of Section 16-11.4(c) and the Board's finding that BAC's proposed development of an aquatic center within the R-65 Zone constituted a conditional permitted use; (2) asserted that under N.J.S.A. 40:55D-73(a), the Board should have granted an automatic approval because of the Board's delay in deciding his appeal; and (3) challenged the Board's statutory authority to charge an escrow fee to cover its costs associated with hearing appeals under N.J.S.A. 40:55D-72.

The Board filed an answer and counterclaim. The board averred the Township used $9998.17 of plaintiff s escrow deposits to "cover certain costs of review and related work performed by the Board professionals, including, the Board Planner, the Board Engineer, and the Board Attorney, as well as out-of-pocket costs, including court stenographer charges." The Board sought overdue additional escrow deposit payments totaling $5505.25, for its engineer, attorney and planner.

On August 31, 2012, the trial judge heard oral argument on plaintiff's motion. Initially, plaintiff argued that Section 16-11.4(c) created two distinct classes of conditional permitted uses: (1) "private membership recreational activities"; and (2) "nonprofit recreation facilities open to the general public offering activities limited to swimming . . . not including commercial recreation uses wherein the principal use is an indoor activity consisting of exercise rooms, equipment, etc." Under plaintiff's interpretation, BAC's proposed development did not constitute a "private membership recreational activity" under Section 16-11.4(c) because it was a "facility." Rather, plaintiff argued that, as a for-profit facility that was not open to the general public, the aquatic center did not fall within the second class of conditional permitted uses described by Section 16-11.4(c).

BAC did not dispute that it was a for-profit entity. Rather it read Section 16-11.4(c) as permitting either "private membership" or "nonprofit recreation facilities," both of which could offer swimming. It argued the legislative intent was to exclude commercial gym within the R-65 zone. In support of its reading of Section 16-11.4(c), BAC pointed to Section 16.9.4(c) pertaining to the EP-250 Zone, which was written simultaneouslyand adopted in the same Ordinance 93-24. Both sections express a similar purpose and intent, to prohibit commercial gyms. However, the Ordinance specifically prohibited commercial indoor pools in the EP-250 Zone. BAC argued that the specific prohibition on indoor pools in Section 16-9.4(c), and the lack of such language in Section 16-11.4(c) indicated a legislative intent to permit commercial indoor pools within the R-65 Zone.

Next, plaintiff argued that he was entitled to an automatic favorable decision from the Board under N.J.S.A. 40:55D-73, because the Board failed to render a decision within 120 days of his appeal of the zoning officer's decision. N.J.S.A. 40:55D-73(a). BAC noted N.J.S.A. 40:55D-73, required the Board to render its decision within 120 days of the submission of a complete application for development, and argued completeness occurred on June 7, 2011. Plaintiff maintained that because he was not an "applicant for development," as defined in N.J.S.A. 40:55D-3, the 120-day period began to run when he submitted his appeal, not when the Board deemed his application complete.

Lastly, plaintiff argued the Board's escrow fee was invalid. He maintained that N.J.S.A. 40:55D-8(b) did not list appeals or requests for ordinance interpretation as a basis for which the Board may charge a fee.

In a thorough and cogent written opinion dated September 5, 2012, Judge Coyle explained his reasons for dismissing plaintiff's prerogative writs action. Initially, the opinion noted the well-settled proposition that New Jersey courts typically "give deference to a municipality's informed interpretation of its Ordinances, while nevertheless construing the Ordinance de novo." DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super. 161, 174 (App. Div. 2004). The opinion also noted that although New Jersey courts "construe the governing Ordinance de novo, we recognize the board's knowledge of local circumstances and accord deference to its interpretation." Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004) (internal citation and quotation marks omitted).

Upon his de novo review of the parties' arguments, and the testimony and evidence presented to the Board, Judge Coyle found that Section 16-11.4(c) permitted both for-profit and nonprofit recreational facilities as conditional permitted uses. Moreover, he concluded that there was a legislative intent to permit pools within the R-65 Zone. Accordingly, the judge found BAC's proposed aquatic center constituted a conditional permitted use within the R-65 Zone. He further noted the Board's acceptance of the testimony of BAC's experts, and deferred to the Board's understanding of its local circumstances."

Next, the court concluded the Board rendered its decision within 120 days of June 7, 2011, the date on which the Board received the escrow fee that completed the application. The judge reasoned the Board's action was correct because "it is inherent that an appeal should be complete and in accordance with all necessary requirements provided by Township Ordinance" to commence the 120-day period. Finally, the opinion concluded plaintiff was required to pay the escrow fees because the MLUL, N.J.S.A. 40:55D-53.2, permits municipalities to charge fees to offset their costs for the "review of applications for development, review and preparation of documents, inspection of improvements or other purposes under the provision of the MLUL."

On appeal, plaintiff argues that the Law Division erred in deferring to the Board when it should have applied a de novo standard of review, and reasserts the three main arguments presented to the trial court, namely, that he was entitled to automatic approval per N.J.S.A. 40:55D-73; that the Board erred in finding that BAC's proposed development constituted a permitted conditional use within the R-65 Zone; and that the MLUL did not permit the Township to charge an escrow fee.

At the outset, we find no error in the standard of review employed by the Law Division. The judge aptly deferred to the Board's factual findings which were based upon the uncontroverted expert testimony provided at the hearings. The judge however conducted the requisite review when interpreting the Ordinances. The judge's opinion leaves us no doubt that he considered the evidence of record and carefully discharged his duty to review the record de novo.

As the reviewing court, we review the Board's actions using the same standard of review of the trial court. Fallone, supra, 369 N.J. Super. at 562. We must review the interpretation of the Township's Ordinances de novo. E.g., Adams v. Delmonte, 309 N.J. Super. 572, 583 (App. Div. 1998) (citations omitted). Having reviewed the record, briefs, and arguments of counsel, and in light of controlling legal standards, we conclude plaintiff's contentions lack merit.

On plaintiff's first point, we carefully reviewed the Ordinance Sections 16-11.4(c) and 16-9.4(c) and reach the same interpretive conclusion as the Board and Judge Coyle. The plain reading of the Ordinance, coupled with Chadwick's testimony explaining the language used in each section, evidences the legislative intent to permit indoor pools within the R-65 Zone. In interpreting a municipal ordinance, we are obliged to "utilize[ ] the established rules of statutory construction[,]" Paff v. Byrnes, 385 N.J. Super. 574, 579 (App. Div. 2006) (citation omitted), and are therefore guided by certain, well-established principles. First, "words and phrases shall[,] . . . unless inconsistent with the manifest intent of the [governing body] or unless another or different meaning is expressly indicated, be given their generally accepted meaning. . . ." N.J.S.A. 1:1-1. We must "'look first to the plain language of the [ordinance], seeking further guidance only to the extent that the [governing body's] intent cannot be derived from the words that it has chosen.'" In re Petition for Referendum on City of Trenton Ordinance 09-02, 201 N.J. 349, 358-59 (2010) (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009) (internal quotations and citations omitted)). The common definitions of terms must be assigned, unless evidence exists suggesting the local [governing body] intended otherwise. See DiProspero v. Penn, 183 N.J. 477, 492, (2005) (stating courts ascribe the "ordinary meaning and significance" to statutory terms).

Furthermore, the land use ordinance "must be read in [its] entirety; each part or section should be construed in connection with every other part or section to provide a harmonious whole." Burnett v. County of Bergen, 198 N.J. 408, 421 (2009) (internal quotations and citations omitted). Lastly, we "may neither rewrite a plainly-written enactment of the [governing body] nor presume that the [governing body] intended something other than that expressed by way of the plain language." O'Connell v. State, 171 N.J. 484, 488 (2002). "The Court fulfills its role by construing a statute in a fashion consistent with the statutory context in which is appears." Mun. Council of Newark v. James, 183 N.J. 361, 370 (2005) (internal quotations and citation omitted).

Plaintiff's strained parsing of the words in the Ordinance, namely "facility" and "activity," as well as "and" and "et cetera" are inconsistent with the ordinary meaning and usage of the words in context with the plain reading of the Ordinance. Chadwick, who wrote the Ordinance, rendered an explanation of the language used in these sections that comports with applicable rules of ordinance interpretation. The Board's reliance on that testimony and its interpretation of its Ordinance was not arbitrary, capricious or unreasonable. We agree with the Law Division's ultimate conclusion that BAC's proposed development of the aquatic center conformed to the provisions of Section 16-11.4(c) as a permitted conditional use.

Next, we find no error in the court's conclusion that plaintiff was not entitled to an automatic favorable decision under N.J.S.A. 40:55D-73(b). We agree with plaintiff that he is not an applicant for development as defined in N.J.S.A. 40:55D-3, or the Ordinance Section 15-1.3. However, plaintiff's challenge to Chadwick's decision was an appeal under the Ordinance. The Ordinance Section 15-1.3 defines an appeal as "[a] request for review of Township Officer's decision by the Planning Board or Board of Adjustment in his interpretation of an provision of this chapter[.]" Moreover, pursuant to the Township's Rules of Practice 2:2-1, "as soon as any appeal . . . is deemed complete in accordance with the [ ] rule, the case shall be placed on the calendar." As an appellant, plaintiff is required to fulfill the requirements necessary to complete an appeal, including the submission of the checklist and the fees and costs established by the Ordinance. Section 15-5.3(a)(7), provides a fee schedule under which individuals who file appeals pursuant to N.J.S.A. 40:55D-70a, and/or who request ordinance interpretations pursuant to N.J.S.A. 40:55D-70b, must pay a certain dollar amount in escrow fees.

Here, the appeal filed by plaintiff on April 6, 2011, was deemed complete when the escrow fees were paid on June 7. Any delay in the proceedings was due to plaintiff's objection to paying the required fees. The record discloses "no intentional or undue delay" by the Board which would justify the cited statutory remedy. See Fallone, supra, 369 N.J. Super. at 569; Allied Realty v. Borough of Upper Saddle River, 221 N.J. Super. 407, 418 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988) ("The evil which the automatic approval provisions were designed to remedy was municipal inaction and inattention."). Understanding the application was not complete until June 7, the Board reviewed the matter and rendered its decision within the statutory timeframe. N.J.S.A. 40:55D-73.

Turning to plaintiff's final point, we conclude the Township was authorized to assess escrow fees for the appeal of the zoning officer's decision and for interpretation of its Ordinance. The MLUL establishes a user based system for payment of costs associated with land use reviews. The primary function of N.J.S.A. 40:55D-8(b) is to allow a "municipality to impose reasonable fees to defray the cost of reviewing development applications." Flama Constr. Corp. v. Franklin, 201 N.J. Super. 498, 502 (App. Div. 1985). As such, N.J.S.A. 40:55D-8(a) provides, "[e]very municipal agency shall adopt and may amend reasonable rules and regulations, not inconsistent with this act or with any applicable Ordinance, for the administration of its functions, powers and duties . . . ." N.J.S.A. 40:55D-8(b), thereafter provides, "[f]ees to be charged (1) an applicant for review of an application for development by a municipal agency, and (2) an appellant pursuant to section 8 of this act shall be reasonable and established by Ordinance." To that end, N.J.S.A. 40:55D-53.2(a) further authorizes a municipality to pay professionals the fees they might incur in the "review of applications for development, review and preparation of documents, inspection of improvements[,] or other purposes under the provisions of [the MLUL]." (emphasis added).

Warren Township adopted Ordinance, Section 15-5.3(a)(1), requiring "all development applications which meet the criteria established herein shall be accompanied by a deposit of escrow funds in accordance with the provisions of this subsection." Section 15-5.3(a)(7), explicitly provides that those individuals who file an appeal pursuant to N.J.S.A. 40:55D-70(a) from a decision regarding a non-residential development proposal must pay $2000 in escrow fees. Meanwhile, those individuals who, pursuant to N.J.S.A. 40:55D-70(b), request an interpretation of an Ordinance related to a non-residential development proposal must pay $5000 in escrow fees. Here, plaintiff sought both actions thereby directly subjecting himself to the schedule of fees for review of his requests. The Township required an initial escrow payment of $5000, and later requested an additional $5000.

It is undisputed that the Township incurred expenses for professional services to address plaintiff's appeal and request for an interpretation of Section 16-11.4(c), as evidenced by the participation of the Board's engineer, planner, and attorney. We agree with the Law Division that the Board's functions and the services it required of its professionals qualify as "other purposes under the provisions of the [MLUL]." N.J.S.A. 40:55D-53.2. Accordingly, we conclude the Township clearly possesses the authority to charge fees in connection with plaintiff's appeals to the Zoning Board that, as here, require the procurement of professional services. Thus, assessing escrow fees to cover the expense of reviewing plaintiff's appeal and request for the Ordinance interpretation was lawful.

On the matter of the specific costs of the appeal, plaintiff and the Board assert disparate calculations of the costs incurred by the Board to review plaintiff's appeal. Plaintiff asserts he deposited $16,000 into the escrow account, and claims the Board only submitted evidence of $9331 in expenses. Plaintiff, therefore, argues he is entitled to a refund of fees he paid over the $9331 in costs submitted by the Board.4 On the other hand, the Board argues it paid out $15,569 to the Board professionals and stenographer, and seeks an additional $5505 it claims is overdue from plaintiff.

Though the trial court ordered plaintiff to pay the requested escrow fees, it may not have had the detailed information supplied on appeal. Therefore, we remand this matter to the trial court for resolution of the disputed escrow account, specifically to determine the amount of costs incurred by the Board on plaintiff's appeal, and resolve whether plaintiff owes additional fees or is due a refund. We leave to the court's discretion to either address the matter directly or to direct the parties to comply with the Ordinance Section 15-5.3(b)(11), which sets forth the procedures for resolving disputes over charges made for profession services rendered for the Township. We do not retain jurisdiction.

Affirmed in part, remanded in part.

1 The Planning Board's consideration of the BAC site plan application was stayed pending the appeal to the Board. The Board resolution ultimately remanded the matter back to the Planning Board for further proceeding consistent with its decision.

2 In its counterclaim, the Board acknowledged that plaintiff paid a total of $10,000 in escrow deposits pursuant to Section 15-5.3 of the Ordinance. The escrow account reflects $61.92 in accrued interest.

3 Section 16-9.4(c) provides,

Private membership recreational facilities and nonprofit recreation facility including facilities open to the general public, offering activities limited to swimming, tennis, racket ball and handball courts, but not including commercial recreation uses wherein the principal use is an indoor activity consisting of exercise rooms, court(s), pool(s), etc.

[(Emphasis added.)]

4 Plaintiff's calculations ignore the fees and costs totaling $6173.75 set forth in its exhibit at Pa 144-145.