KIKIS A. KYRIACOU et al. v. JAMES LAVIN and JEANNE LAVIN, HOLMDEL TOWNSHIP ZONING BOARD OF ADJUSTMENT, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1163-04T31163-04T3

A-1164-04T3

KIKIS A. KYRIACOU and

JUDITH KYRIACOU,

Plaintiffs-Respondents,

v.

JAMES LAVIN and JEANNE LAVIN,

HOLMDEL TOWNSHIP ZONING BOARD

OF ADJUSTMENT, and MICHAEL T.

HARMYK and BARBARA HARMYK,

Defendants-Appellants.

________________________________________________________________

 

Argued January 11, 2006 - Decided February 17, 2006

Before Judges Parker and Miniman.

On appeal from the Superior Court of New

Jersey, Law Division, Monmouth County,

Docket No. L-5795-03.

Peter S. Falvo, Jr. argued the cause for appellants,

James Lavin and Jeanne Lavin and Michael Harmyk

and Barbara Harmyk (Ansell Zaro Grimm & Aaron,

attorneys; Mr. Falvo, of counsel; Mr. Falvo and

Seamus Curley, on the brief).

Michael A. Irene, Jr., attorney for appellant

Holmdel Township Zoning Board of Adjustment.

James H. Gorman argued the cause for respondents.

PER CURIAM

Defendants James and Jeanne Lavin and the Holmdel Township Zoning Board of Adjustment (Board) appeal under two separate docket numbers from an order entered on September 21, 2004 granting summary judgment in favor of plaintiffs, invalidating the Board's approval of a variance granted to defendants on November 19, 2003. Plaintiffs are objectors who reside on property adjacent to defendants' property.

The issue before the trial court was very narrow: whether the Board's engineers gave unsworn testimony when they responded to questions by Board members and, if so, whether it was in violation of N.J.S.A. 40:55D-10d, such that reversal of the Board's decision was warranted. In our view, reversal of the Board's decision was not warranted under the circumstances presented. We reverse.

Defendants are contract purchasers of two adjacent lots in Holmdel Township. Lot 64 has fifty-two feet of frontage on Round Hill Road, and Lot 62 has sixty-one feet of frontage on Galloway Road. The two lots together constitute five acres. Neither lot, however, has sufficient road frontage to allow building without a variance. The Holmdel zoning ordinance requires 100 feet of street frontage.

After four hearings between April 23, 2003 and October 8, 2003, the Board granted the variance on November 12, 2003 and memorialized its decision in a resolution of that date.

Thereafter, plaintiffs Kikis and Judith Kyriacou filed an action in lieu of prerogative writs challenging the variance and alleging that the Board's action was arbitrary, unreasonable and capricious. Plaintiffs moved for summary judgment, arguing that the Board's decision was invalid because it was based upon unsworn testimony by the Board's engineers. The trial judge granted the motion and defendants appealed, arguing that (1) the Board's engineers were not fact witnesses and did not, therefore, have to be sworn; (2) plaintiffs waived their right to object to the fact that the Board's engineers were not sworn; and (3) the Board's engineers had limited participation in the hearings and no impact on the Board's decision which is otherwise fully supported by the record.

The Municipal Land Use Act (MLUL) requires that

The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer, and the right of cross-examination shall be permitted 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.

[N.J.S.A. 40:55D-10(d).]

Defendants maintain that the engineers were not witnesses subject to the requirements of N.J.S.A. 40:55D-10(d); rather, the engineers are municipal officers providing advice to the Board in their official capacity. Defendants' position is supported by William Cox in his widely respected treatise on land use.

Under the [MLUL] the testimony of all witnesses relating to an application coming before the Board must be taken under oath. N.J.S. 40:55D-10d. This applies to testimony received from the zoning officer, engineer or any other municipal officer who is a fact witness. A municipal officer does not have to be sworn in order to make recommendations relating to changes in the proposed layouts of utilities, streets, etc., or recommending the imposition of reasonable conditions authorized by ordinance, or in any situation where he is rendering expert advice to the Board.

[Cox, New Jersey Zoning and Land Use Administration, 2-7.5 (2005) (emphasis added).]

We have previously held that a planning board that "sought testimony from its consulting engineer [and] failed to swear him [or her] in" was "problematic" because the statute "requires that witnesses offering testimony before the Board be sworn." DeMaria v. JEB Brook, 372 N.J. Super. 138, 141 (App. Div. 2003). The Board's failure to take the engineer's testimony under oath, however, does not require reversal of the Board's decision.

In DeMaria, we considered whether to "allow [a] site plan approval to stand where the Planning Board committed significant procedural and substantive errors in violation of the [MLUL] but the blameless applicant complied with all applicable zoning and site plan ordinances." Id. at 140. The Board's errors "included a failure to swear in certain witnesses as well as frequent and rather confusing changes of the rules as the hearing progressed." Ibid.

While we considered it "problematic" that the Board sought testimony from its engineers without swearing them in, we held that "not all errors mandate a reversal . . . [and] only when the error has the potential to impact upon a fair result should reversal be required." Id. at 141; See Kramer v. Bd. of Adjustment, 45 N.J. 268, 285 (1965) (holding that "[s]ince there is no indication that plaintiffs did not receive substantial justice, this court will not set aside the Board's decision for alleged errors in the manner that the proceedings were conducted"); Shim v. Washington Twp. Planning Bd., 298 N.J. Super. 395, 413 (App. Div. 1997) (refusing to vacate the Board's decision because its procedural error - a failure to invite objectors to cross-examine witnesses - was found to be inconsequential).

The engineer's statements, made on May 28, 2003, were in response to questions by Board members:

MS. BALMER [BOARD MEMBER]: Uh-huh. I noticed on a map that our engineer showed us, these lots basically drain 13 acres of uplands; is that correct?

MR. PLOSKONKA [DEFENDANT'S EXPERT]: They drained 13 acres of uplands? I haven't evaluated that.

MS. BALMER: Libby [Waterbury], TDR - not TDR -

MS. WATERBURY [BOARD'S ENGINEER]: I think - all I did was, I made a copy of the file map for Round Hill Section II and Round Hill Section - actually, it was Round Hill Section III and it shows Round Hill Section II on the filed map. It just shows offside area. It has a note on it. I can enter that into evidence. It says, "total drainage area 13 acres." It was for Round Hill Section III file map.

Those statements clearly are not testimony; rather, they are an explanation of the source of information supplied to the Board. The statements did not contain any facts within the personal knowledge of the engineer.

Another exchange occurred shortly thereafter:

MR. PARKER [COUNSEL FOR LAVIN]: I think we addressed that last time. Mr. Harmyk owns that property [to the north of the proposed site]. From here out to Crawfords Corner Road are a series of lots owned by him.

MS. BALMER: He currently owns these lots, too?

MR. PARKER: Yes.

MS. BALMER: The purchase, I imagine, is contingent on the purchase of these lots, correct?

MR. PARKER: That's correct.

MS. WATERBURY: That's where the issue of whether there was a merger had occurred and whether a subdivision of these lots came up.

MR. IRENE [BOARD MEMBER]: That was a different application, I think. That was Springberg.

MS. WATERBURY: I'm wondering, as it relates to these, if it's a common ownership and you have lots that don't have a frontage variance because of the frontage probably on Crawfords Corner as it would exist as a single, but each has a frontage variance on Round Hill. Under single ownership, it would conform.

MR. IRENE: They are not undersized lots. They are deficient on the street frontage, but not undersized lots.

MS. WATERBURY: That's my question.

MR. IRENE: I don't believe the issue has come up.

MR. PARKER: My understanding was the same as yours. Merger applies to undersize lots.

MR. IRENE: They have more area here than they know what to do [with].

MS. WATERBURY: Okay. When you guys are done, I have questions.

Again, Waterbury's statements cannot be considered testimony on facts within her personal knowledge. Rather, they are merely ruminations about the issues infusing the application before the Board.

Further on, Waterbury questioned defendants' expert, Ploskonka:

MS. WATERBURY: I know you said you hadn't reviewed the Master Plan. One of the major goals deals with the preservation of environmentally-sensitive lands which would be flood plains, wetlands and steep slopes. I know every town has a general category that they include and some exclude or include others. On this particular property, is there anything beyond -- let me re-word this. On this particular property, what would you perceive being the environmentally-sensitive lands that would fall into these categories?

MR. PLOSKONKA: In the stream corridor, there are some nice wooded areas. To the left of the property, there is a very nice wood line along the entire frontage of both lots. I think it's incumbent upon the client to look at those areas and try to save those naturally-treed areas, since there is so much open land to work with.

MS. WATERBURY: One of the goals that was part of the Master Plan, which we don't really have that information before us, was to how much of that exists or doesn't exist on the lot. We have your testimony of the general areas of them, but we don't necessarily have a picture showing us how that relates to the Ordinances in the Master Plan.

MR. PLOSKONKA: If you walk out to the site, there are two openings. There are large open areas that are clearly visible, which is the area that would be used for development. The other areas would not be used for development, except to get through for the driveway.

MS. WATERBURY: Do we know if those open areas have any portions of them that would be listed in these types of categories?

MR. PLOSKONKA: Possibly the edge of the area near the stream. If we put a 50-foot conservation easement on it, it would probably be safe with that scenario.

MS. WATERBURY: It was noted earlier that if this were to be a subdivision, unfortunately -- let me back up. The changes, that probably occurred in the Town since 1985, that would largely affect this property, I believe, are ones that relate to the environmentally-sensitive land and the development upon them. I think also in the State, too, and I think it was '88 or so, the wetlands law started coming into account in '89 when the buffers came into account. Do you have a comment as to although this frontage was created in 1985, and recognizing this is the biggest change that's occurring in our Zone Plan and Master Plan since that time -- how do I want to word this into a questions? Do you have a comment as to how that change in the Ordinance would possibly change the contemplation of how these lots would have been developed from '85 to now? I'm not really quite sure how to ask the question.

MS. BALMER: Are you talking about if there are no lines today, how they would be subdivided today if they were under our present Ordinances?

MS. WATERBURY: Or even how the road would have extended, yeah.

MS. BALMER: You are looking to see how it would be subdivided? Is that what you are saying?

MR. IRENE: If, in fact, the Resource Management Laws would apply, how would that affect the plans before us?

MS. WATERBURY: That is a better way.

MR. IRENE: If they apply, would that require a different buffer. I think Mr. Gorman was asking that before. I think you said it was a 100-foot buffer.

MS. PLOSKONKA: Is the question: If you were doing a subdivision, to create 5 lots here or 4 lots here, would you have to apply that Ordinance to the plan and then do the buffer as required by the Ordinance which is 100 or --

MS. WATERBURY: 150.

MR. PLOSKONKA: Maybe you could average that buffer, so you than have to divide it up and see what you can work out under that scenario.

MS. WATERBURY: If you put a 15-foot buffer off of that stream corridor, I guess it appears it would greatly impact, and I'm sorry I don't know which lot is whose --

MR. PLOSKONKA: It would impact Lot 62. If you get to the end of 62, it's 189 feet deep.

MS. WATERBURY: If the Ordinances are being set in an effort -- or the biggest change since '85 has been relative to this environment -- the preservation of environmental lands, and the criteria to be set out to do that, how does not providing that on these lots, even though it's not a subdivision, meet the goals of the Master Plan or the Ordinance?

MR. PLOSKONKA: The Ordinance is written in such a way to exempt such properties. Certain land owners, who have been in the town for 30, 40 or 50 years, aren't impacted by that Ordinance. That's rightly so. We're not impacted by that Ordinance.

MS. WATERBURY: If you did anything to those lots, in an effort to make that a conforming frontage, those Ordinances would come into play right?

MR. PLOSKONKA: Correct.

Again, Waterbury was not testifying; she was posing hypothetical questions to defendants' expert and directing the expert's attention to a specific area.

In response to Board members' inquiries, Waterbury continued questioning Ploskonka:

MS. BALMER: I know now. If you acquire the other land next-door . . . how much more frontage would you require?

MR. PLOSKONKA: We would have 40 feet going into his client's property, so we would have an L-shaped line here. The frontage would be on an L-shaped line.

MS. BALMER: That would give you how many feet?

MR. PLOSKONKA: Forty feet to make it 100 feet.

MS. BALMER: You would not have to alter that cul-de-sac in any way by doing that, right?

MR. PLOSKONKA: No.

MS. WATERBURY: That would be what you had showed the Board also.

MR. PLOSKONKA: This little sliver of 500 square feet. In those cases, too, it would make it conforming. The question is: What does it matter for those areas?

MS. BALMER: Best and worst case, or first and second case scenario, there would be no more extended coverage either way.

MR. PLOSKONKA: No.

MS. BALMER: That's what I'm looking for. Thank you.

MR. FAGEN: Two questions to follow-up on Libby [Waterbury]'s question. Because there are apparently wetlands on the property, we need to apply to the DEP for a Letter of Interpretation. There was a characterization and one of you said it was probably, "Ordinary."

MR. PLOSKONKA: Yes.

MR. FAGEN: So they assign some resource value to it. How many stages of resource value are there? "Ordinary" being what?

MR. PLOSKONKA: A fifty-foot buffer.

MS. WATERBURY: "Ordinary is 25. "Intermediate" is 50. "Exceptional" would be 100.

MR. FAGEN: In your characterization, this would be the lowest level or the middle level?

MS. WATERBURY: "Ordinary" is 25. When he said "50," I took it that he meant "Intermediate," and that's what I was thinking, more than likely it would be 50. The difference would be if they found something that was an endangered species of some kind.

We do not consider this to be testimony. The engineer was posing hypothetical questions and comments regarding Department of Environmental Protection (DEP) regulations. It is for the DEP to determine the nature of the site and the stage of resource value. No facts or opinions were expressed by Waterbury in this exchange.

Still later in the meeting, Board members posed questions to Waterbury:

CHAIRMAN BARON: Okay. I think you can get a flavor, you know, Mr. Ploskonka, of what to prepare generally from what you've heard here tonight. Libby [Waterbury] can provide some guidance as to what's reasonable. Wes, I think you had something?

MR. FAGAN: If this is Level II, what's more significant than this?

MS. WATERBURY: "Exceptional."

MR. FAGAN: Generally, what would the highlights of "Exceptional" be?

MS. WATERBURY: What's going to differentiate "Exceptional" from "Intermediate" is whether there is an endangered species of some sort along that water course.

MS. BALMER: Also water --

MS. WATERBURY: A trout stream or what have you.

We simply do not consider Waterbury's responses to be testimony because she merely explained DEP regulations to the Board members.

On July 9, Waterbury participated in the meeting to the extent that she posed certain questions to defendant James Lavin. We need not quote these exchanges because they are similar in nature to those that occurred at the May 28 hearing and, in our view, do not constitute testimony.

At the October 8, 2003 meeting, Lori Martz served as the Board's engineer. During the meeting, Martz inquired of Ploskonka whether the Wetlands Delineations Report had been submitted to the DEP. Ploskonka replied, "Not yet, no. We are waiting to get through this hearing first." Martz's inquiry is clearly not testimony. Further on in the meeting, Martz explained to Board members that the twenty-five foot stream buffer that Lavin sought was less than the DEP usual requirement of 150 feet. When asked by Board members how the DEP would view the buffer area, Martz responded that she did not know. She later emphasized that it would be up to the DEP to determine the extent of the required stream buffer. As with Waterbury's remarks, Martz's comments cannot be considered testimony.

At oral argument, when we asked plaintiffs' counsel how plaintiff was prejudiced by the "unsworn testimony," counsel responded that because the testimony was unsworn, he was unable to use it against defendants at trial. Plaintiffs' counsel indicated that the engineers' statements were favorable to plaintiffs and counsel wanted to be able to use those statements against defendants at trial. Obviously, counsel could call the engineers as witnesses and ask them the same questions they were asked in the hearing. Counsel has not presented any reason to believe that the engineers would answer differently if the same questions were posed in the same context at trial. Consequently, we see no prejudice to plaintiffs in that regard. Moreover, in our review of the record, we are satisfied that there was more than adequate evidence to support the Board's decision, irrespective of the statements made by the engineers.

We briefly address defendants' argument that plaintiffs waived their right to object to the engineers' participation in the hearings because their counsel was present and participated in the hearings himself without objection to the engineers' remarks. At oral argument before us, plaintiffs' counsel explained that he did not realize the engineers were not sworn because he thought the Board used the same procedure as the Holmdel Township Planning Board, which swears in all of its professionals at the reorganization meeting and deems the oath continuous throughout the year. While we certainly approve of the Planning Board's procedure, we do not view this Board's failure to swear in the professionals at the reorganization meeting as fatal to all applications before it.

Although we do not consider the engineers' participation in the hearings to be testimony, we are satisfied that even if it were, the trial court's reversal of the Board's decision granting the variance was in error. Clearly, the Lavins were not at fault and the prejudice alleged by plaintiffs is diminimus at best. DeMaria, supra, 372 N.J. Super. at 141.

Finally, there is no evidence that any procedural error the Board may have committed in failing to swear in the engineers at the beginning of the hearings had any impact on the Board's decision. Id. at 146.

Since plaintiffs' counsel indicated to the trial judge that there were no other issues to be decided, our reversal of the trial court's order of September 21, 2004 reinstates the Board's approval of the Lavins' application.

 
Reversed.

(continued)

(continued)

16

A-1163-04T3

February 17, 2006