WILLIAM SAVERINO et al. v. BOROUGH OF HILLSDALE PLANNING BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1281-04T51281-04T5

WILLIAM SAVERINO and

CAROLE SAVERINO,

Plaintiffs-Appellants,

v.

BOROUGH OF HILLSDALE

PLANNING BOARD,

Defendant-Respondent,

and

HASBROUCK HEIGHTS, INC.,

Defendant-Respondent/Cross-Appellant.

_____________________________________________________________

 

Argued September 27, 2005 - Decided

Before Judges Lefelt, Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-848-04.

James V. Segreto argued the cause for appellants William Saverino and Carole Saverino.

Harold Ritvo argued the cause for respondent Borough of Hillsdale Planning Board.

Gail L. Price argued the cause for respondent/cross-appellant Hasbrouck Heights, Inc. (Price, Meese, Shulman & D'Arminio, attorneys; Ms. Price, of counsel and on the brief; Maria Cristiano Anderson, on the brief).

PER CURIAM

Plaintiffs William and Carole Saverino appeal from the order of the Law Division, Bergen County, affirming the determination by defendant Borough of Hillsdale Planning Board (the Board) to grant the application for preliminary site plan approval filed by defendant Hasbrouck Heights Inc. (HHI). The Board and HHI both cross-appeal the denial of their respective motions, pursuant to R. 1:4-8, the frivolous complaint rule, for fees and sanctions. HHI is the owner of property located at 2 & 16 Broadway, Hillsdale, New Jersey, and designated as Lots 1 and 11 in Block 1306. Although Lot 1 is located mostly in a commercial (C) zone, a portion of the site is in the R-4 residential zone. Lot 11 is located in the C zone. The subject property is within a hundred year flood hazard area limit of the Pascack Brook and is subject to Department of Environmental Protection (DEP) review.

In 2001, the Board granted HHI a use variance, along with several other variances, to develop its property for a KFC drive-through restaurant. Plaintiffs, who own a competing Chicken Delight restaurant, appealed the Board's grant to the Law Division arguing that the plan did not provide adequate fencing between the parking lot and the residential districts, that there were insufficient trees in the parking areas, that there were no provisions for handicapped parking, and that the Board failed to articulate expressly that the site plan was in conformity with the standards and specifications of the ordinance. The trial court rejected all of plaintiffs' claims.

In 2002, HHI filed a second application, the subject of this appeal, for preliminary site plan approval to construct a KFC restaurant without the drive-thru window service and devoid of requests for variances from the zoning ordinance. The Board conducted public meetings on March 25, 2003, May 27, 2003, September 30, 2003, November 13, 2003 and November 25, 2003 to consider the application in the context of the borough site plan ordinance, Hillsdale Land Use Ordinance 310-13 to 310-118. On November 25, 2003, the Board unanimously approved HHI's application.

On February 2, 2004, plaintiffs filed a complaint challenging the preliminary site plan approval granted to HHI on November 25. The trial court determined that the Board's approval was not arbitrary, capricious or unreasonable and dismissed the complaint. We agree and affirm. Although we are satisfied none of the arguments raised on this appeal is of sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), we offer these few comments.

The trial judge and we on our review, should "give deference to a local zoning board." Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 208 (App. Div. 1999). The applicable standard of judicial review of a zoning board decision is as follows:

Such public bodies, because of their peculiar knowledge of local conditions must be allowed wide latitude in the exercise of delegated discretion. Courts cannot substitute an independent judgment for that of the boards in areas of factual disputes; neither will they exercise anew the original jurisdiction of such boards or trespass on their administrative work. So long as the power exists to do the act complained of and there is substantial evidence to support it, the judicial branch of the government cannot interfere. A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable. Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.

 
[Kramer v. Board of Adjustment, 45 N.J. 268, 296-297 (1965) (internal citations omitted).]

We are satisfied from our review of the records and our consideration of the arguments of the parties that the trial court did not err in finding that the Board's grant was not arbitrary, capricious or unreasonable.

For example, plaintiffs argued proper variances were required and were not applied for in the construction of a swale. The swale was relocated from the portion of the property within the residential zone, and it is not a prohibited use in a commercial zone. Accordingly, a variance is not required to allow its construction. Plaintiff also argues that HHI did not make provisions for adequate drainage and runoff of waters in and from the premises under the Hillsdale Code, which required that a commercial district must be able to accommodate a twenty-five year storm with an intensity of 2.4 inches in one hour. The Board's determination that HHI had provided for this possibility was supported by testimony from the engineer that HHI had complied with 310-107 of the Hillsdale Code.

Similarly, we find no merit in plaintiff's objection that the Board failed to mark exhibits into evidence properly. The court correctly observed that, pursuant to N.J.S.A. 40:55D-10(e), "[t]echnical rules of evidence shall not be applicable to hearings [before a Planning Board], but the agency may exclude irrelevant, immaterial or unduly repetitious evidence." Here, the claim is not that evidence was improperly excluded but that it was not properly marked. Plaintiffs have failed to demonstrate prejudice and we discern no clear abuse.

As to the cross-appeals, the court's decision to deny counsel fees and penalties on the ground that plaintiffs' claims were not frivolous was a fair exercise of discretion, which we will not disturb.

 
We affirm the July 30, 2004 and October 8, 2004 orders of the Law Division substantially for the reasons expressed by Judge Mecca in his oral statements from the bench.

Affirmed.

(continued)

(continued)

6

A-1281-04T5

 

January 4, 2006