BASHAR SABBAGH v. PLANNING BOARD OF THE BOROUGH OF FRANKLIN LAKES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00279-15T2

BASHAR SABBAGH,

Plaintiff-Appellant,

v.

PLANNING BOARD OF THE BOROUGH

OF FRANKLIN LAKES and THE

BOROUGH OF FRANKLIN LAKES,

Defendants-Respondents.

__________________________________________________

November 23, 2016

Submitted November 1, 2016 Decided

Before Judges Fisher and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3601-14.

Bashar Sabbagh, appellant pro se.

Smith, Crotty, Meyer & Bruins, attorneys for respondents (William T. Smith, on the brief).

PER CURIAM

Plaintiff appeals the dismissal of a complaint in which he asserted that defendant planning board, after a thirteen-day hearing conducted over the course of eighteen months, arbitrarily and unconstitutionally denied him a variance for the construction of a driveway at his Franklin Lakes home. We find no merit in plaintiff's arguments and affirm.

When in 2005 plaintiff applied for site plan approval for the construction of a single family home, his plans showed that 24.4% of the entire lot would be covered by impervious structures or surfaces, which fell within the 25% maximum allowed by ordinance.1 In 2010 and, again, in 2012, the board issued stop orders based on a municipal engineer's assertion that construction was not in accordance with the approved plans were issued. As for the latter stop order, the municipal engineer determined that the driveway was substantially larger than originally planned and approved, and the total impervious lot coverage was 33.85%, far in excess of the 25% maximum permitted by ordinance. Despite his contention that the driveway was being constructed with a pervious paver system, plaintiff applied for a variance.

During the course of the following eighteen months, plaintiff recognized a need to redesign the driveway because the paving system was not functioning properly. Plaintiff later submitted an amended plan that eliminated the proposed pool, causing a reduction in the impervious surface to 31.17% of the total surface of the property; he also presented expert testimony that the driveway "functioned as a permeable surface."

At a hearing in November 2013, plaintiff represented that he had finished presenting testimony, but, in January 2014, two days before the board's disposition of the application, plaintiff's attorney sought a postponement so plaintiff could conduct additional testing on the driveway once the ground thawed out. The board denied that request.

Citing numerous inconsistencies in plaintiff's factual submissions, the board denied the variance application. The trial court later dismissed plaintiff's complaint in this action in lieu of prerogative writs.

Defendant appeals, arguing the trial judge erred: by failing to recognize the unconstitutionality of the applicable ordinance; by concluding his due process rights were not violated; and by determining the denial of his variance application was not arbitrary, capricious or unreasonable. We find insufficient merit in these arguments to warrant further discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm. We add only the following few comments.

Our standard of review is narrow. A board's zoning decision is presumed valid, and the burden is on the challenger to prove otherwise. Cell South of N.J., Inc. v. Zoning Bd. of Adjustment, W. Windsor Twp., 172 N.J. 75, 81 (2002); Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 285 (1965). We will not second guess or intervene in a board's determinations absent a showing that the board's decisions or actions were arbitrary, capricious or unreasonable. Cell South, supra, 172 N.J. at 81; see also Davis Enterprises v. Karpf, 105 N.J. 476, 485 (1987) (describing the "proper scope of judicial review . . . is not to suggest a decision that may be better than the one made by the board . . . but to determine whether the board could reasonably have reached its decision"). In this regard, we consider the fact that municipal officers "are thoroughly familiar with their community's characteristics and interests and are the proper representatives of [their] people." Ward v. Scott, 16 N.J. 16, 23 (1954). For that reason, we afford "deference to a municipality's informed interpretation of its ordinances" even though we construe ordinances de novo. DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super. 161, 174 (App. Div. 2004).

In considering plaintiff's argument that the impervious-surface is unconstitutionally vague, we take "a common sense approach." Chez Sez VIII, Inc. v. Poritz, 297 N.J. Super. 331, 351 (App. Div. 1997). Ordinances may be drawn in broad terms and need not minutely cover every possible situation. Moyant v. Borough of Paramus, 30 N.J. 528, 553 (1959). In determining vagueness, a court must consider "the contextual background of the particular law and with a firm understanding of its purpose." State v. Cameron, 100 N.J. 586, 591 (1985).

Plaintiff argues the governing impervious lot provisions, which we quoted earlier, are vague because they "leave much" to be interpreted; for example, in his view, the ordinance does not define permeability or resistance and, therefore, permits arbitrary application by the board. We disagree. The ordinance specifically lists particular surfaces, such as driveways, which are considered impervious surfaces and, as amended, declares in plain language that other surfaces fall within the ordinance's scope if they consist of "a permanent layer of material," thereby de-emphasizing the imperviousness or porousness of a surface's material that had some bearing on the ordinance's earlier, inapplicable definition. The existing ordinance permits a fair consideration of each application for which a property owner might seek a variance, and, here, the board went to great pains to examine whether plaintiff's driveway fell within or without the ordinance's scope. The ordinance was "sufficiently clear and precise" so that individuals such as plaintiff would be on "fair notice and adequate[ly] warn[ed] of the law's reach." Town Tobacconist v. Kimmelman, 94 N.J. 85, 125 n.21 (1983).

We also reject plaintiff's argument that his due process rights were violated when the board decided not to grant his request for an adjournment in January 2014. As we have observed, the board entertained this application on numerous prior occasions and, at the prior meeting, plaintiff's counsel advised the board that plaintiff had completed his factual submission. It was not until two days before the January 2014 meeting at which the board was expected to dispose of the application that an adjournment was sought. The board acted well within its discretion to deny that unreasonable request. See State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div. 1970), certif. denied, 58 N.J. 335 (1971).

We lastly find insufficient merit in plaintiff's arguments regarding the board's denial of his application to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 At the time, the applicable ordinance defined impervious lot coverage as that part of the site "covered by buildings, parking areas, driveways, pools, walkways, or paved ancillary surfaces such as patios . . . or a surface that has otherwise been compacted or covered with a layer of material so that it is highly resistant to infiltration by water." The ordinance was later amended to replace the final phrase ("a layer of material so that it is highly resistant to infiltration by water") with "a permanent layer of material." The board applied the ordinance as amended because the amendment was adopted prior to plaintiff's submission of the new site plan application. The trial judge also applied the amended ordinance but also determined that the prior version also supported the board's decision.