RONALD S. TAFT v. UPPER FREEHOLD TOWNSHIP PLANNING BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2564-05T22564-05T2

RONALD S. TAFT,

Plaintiff-Appellant,

v.

UPPER FREEHOLD TOWNSHIP

PLANNING BOARD,

Defendant-Respondent,

and

OAK TREE DEVELOPMENT AT

HOLMDEL, LLC,

Defendant/Intervenor-Respondent.

______________________________________

 

Argued January 24, 2007 - Decided May 2, 2007

Before Judges Lefelt, Parrillo and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County,

L-1609-05.

Mathews, Shepherd, McKay & Bruneau, attorneys for appellant (Howard J. Schwartz, on the brief).

Timothy G. Hiskey argued the cause for respondent (Malsbury & Armenante, attorneys; Mr. Hiskey, on the brief).

Joseph A. Dickson argued the cause for intervenor-respondent (Wolff & Samson, attorneys; Arthur S. Goldstein, Melissa A. Salimbene, and Mr. Dickson, on the brief).

PER CURIAM

Plaintiff appeals the dismissal of his complaint in lieu of prerogative writs arising out of his failed challenge to defendant Upper Freehold Township Planning Board's (Board) approval of the Schematic Test Subdivision Plan (Test Plan) and Preliminary Major Subdivision Application (PMSA) submitted by defendant/intervenor Oak Tree Development at Holmdel, LLC (Oak Tree). We affirm.

Here are the facts. On November 20, 2002, Oak Tree contracted with John F. Schmitt to purchase a plot of land located at Emley's Road and Monmouth County Route 537 (Block 33, Lots 4 and 8). The sale was conditioned on Oak Tree's ability to gain approval for a sixty-lot subdivision. Under the agreement, one two-acre lot would be retained by Schmitt for his own use.

Pursuant to the agreement, Oak Tree sought approval from the Board for a Farmland/Open Space Conservation Cluster subdivision, a subdivision in which open space is preserved in exchange for permission to increase the density of plots. Oak Tree submitted a Test Plan indicating the number of lots that could be developed in a conventional subdivision. The subdivision was described as 182.11 acres. The application also delineated fresh water wetlands and wetlands transition areas ("buffers"), as approved in a Letter of Interpretation (LOI) issued by the New Jersey Department of Environmental Protection (DEP). All of the "fresh water wetlands" were classified as "ordinary value" wetlands.

On April 27, 2004, following three public hearings, the Board approved the Test Plan and concluded that the plot could be subdivided into forty-five single-family lots under conventional subdivision. The approval was memorialized in a resolution dated June 22, 2004. The Board then granted Oak Tree a thirty-five percent density bonus and permission to pursue an application for sixty lots. Oak Tree published a Notice of Approval in the Asbury Park Press on June 23, 2004. On July 16, 2004, Oak Tree submitted a PMSA proposing sixty single-family lots under the cluster ordinance. On August 16, 2004, the Board's engineer, Schoor DePalma, issued a review letter. DePalma noted that the Environmental Impact Statement (EIS) submitted by Oak Tree, as required under Upper Freehold Township, N.J. Ordinance 804(c), failed to provide a "comprehensive evaluation and conclusion" with regard to the potential existence of state-endangered Cooper's Hawks on the property.

On September 10, 2004, in response to that letter, LGA Engineering, Inc., acting on behalf of Oak Tree, submitted a revised plan which specifically addressed open space preservation. On September 29, 2004, Oak Tree again amended its application, this time accounting for the fact that a small part of the tract was to be retained by Mr. Schmitt, reducing the acreage. Oak Tree also submitted a letter from Wander Ecological Consultants, written that same day, stating, "[t]he presence of Cooper's Hawk would have regulatory implications only if a nest were located in wetlands, which would result in Exceptional Resource Value classification and a 150-foot transition area."

The Board conducted further public hearings on October 14 and 26, 2004, and November 23, 2004. At the first October hearing, Oak Tree again altered its application, asking the Board to allow Lot 4.40 to remain removed from the cluster, abutting a main road, despite ordinance language prohibiting such abutment. See Upper Freehold Township, N.J., Ordinance 35-611(D)(2). Oak Tree provided evidence of the impracticality of moving it away from the road by way of the testimony of Leanne Hoffman, the engineer who prepared the plans.

At the second October hearing, the Board permitted testimony from the public, including plaintiff, the owner of property adjacent to the proposed development. Plaintiff attempted to present evidence of Cooper's Hawk nests on the property in the form of pictures and testimony. Plaintiff explained that if the land were reclassified to reflect an exceptional resource value based on the existence of the hawks, then the schematic would not work because an additional 150- foot buffer would be required. See N.J.S.A. 139:9B-16(b)(1); In re Freshwater Wetlands Prot. Act. Rules, 180 N.J. 478, 485 (2004). See also Doyal v. N.J. Dep't of Envtl. Prot., 390 N.J. Super. 185, 188 (App. Div. 2007). The Board refused to accept the pictures into evidence because it concluded that classifying the land as an exceptional resource value was something only DEP could do. Consequently, the Board concluded the photos were not relevant to its proceeding.

A day before the November 23, 2004 hearing, DEP weighed in on the Cooper's Hawk debate in a letter to one of Oak Tree's engineers. That letter addressed Oak Tree's initial LOI, upon which the Test Plan and PMSA were based:

Recently, [DEP] has received a significant amount of information suggesting that wetland "A" serves as a breeding habitat for the state threatened Cooper's hawk. . . . This sightings information has been evaluated by zoologists . . . and they have determined that the sightings of this species are legitimate. As a result, this wetland would now be considered a "documented" habitat and, if suitable, warrant an exceptional resource value classification.

During the November 23, 2004 hearing, the Board heard additional testimony from plaintiff, as well as from other members of the public who voiced concerns related to Oak Tree's proposed project, ranging from the existence of the endangered Cooper's Hawks on the property to the possibility of a Native American burial ground existing on the property. Plaintiff once again attempted to introduce the pictures of the nests. This time, however, plaintiff also offered the letter issued by DEP. The Board again refused to admit the pictures, asserting that the Cooper's Hawk issue would be decided by DEP.

After the hearing, the Board voted on the application, which included the revised plans. It was preliminarily approved, with the caveat that the LOI be addressed by DEP. On February 10, 2005, the Board adopted a resolution memorializing the subdivision approval. Following the approval, Oak Tree submitted a second Test Plan, in the event DEP revised the resource value and required an amendment to the preliminary subdivision approval. Although the Board approved the alternative Test Plan, DEP did not require any further revisions.

On April 14, 2005, plaintiff filed a complaint in lieu of prerogative writs against the Board. Oak Tree subsequently intervened in the action and filed an answer. Plaintiff claimed: (1) the Test Plan was erroneous because it included the two acres retained by the seller; (2) since the seller retained two acres of the property, Oak Tree was not the beneficial owner of all of the property as required; (3) the Board improperly granted retroactive variance to the Test Plan; (4) the Board failed to consider testimony, photographs, documentation and experts' reports related to wildlife habitat; (5) consideration of this evidence would have resulted in a reclassification of the property to one termed "exceptional resource value," which would require reconfiguration of the lots and establishment of an "enlarged buffer"; (6) the revisions from the August 18, 2004 plans constituted a substantial change to the original subdivision plans, requiring a hearing and amended application; (7) there was a conflict of interest on the part of Board Member Stern, who started leasing the Schmitt property for farm purposes while the development application was before the Board; (8) the Board considered materials and documents at the October 14, 2004 hearing which were submitted by Oak Tree less than ten days prior to the hearing; (9) the November 22, 2004 letter from DEP to one of Oak Tree's engineers invalidated Oak Tree's original LOI; and (10) the Board improperly ignored the November 22, 2004 letter from DEP. The court rejected all of plaintiff's claims, noting throughout its decision that the Board did not act arbitrarily, unreasonably or capriciously. Judge Lehrer specifically found:

The language of [N.J.S.A. 40:55D-4] and [Upper Freehold Township, N.J., Ordinance 35-203], in my opinion, unequivocally allow Oak Tree . . . to apply for the entire tract, notwithstanding the fact that two acres were retained by Mr. Schmidt, who was not listed as an applicant.

. . . .

[T]he plaintiff's claims involving the validity of the schematic test plan are time barred, because there was a 45 day rule imposed by Rule 4:69-6 (b)(3).

. . . .

[N]o variance was granted. The alleged variance involved a portion or provision in the cluster ordinance, [Upper Freehold Township, N.J., Ordinance 35-611(d)(2)], which provides "unless specifically approved by the planning board, either because there is no practical alternative, and/or because the resulting layout will further the stated purposes of the section provisions, no residential lot may abut any existing public street."

. . . .

The developer and the resolution, incorrectly referred to the request as variance. There was no variance, because there was no departure from 35[-]611(d)(2).

. . . .

Even if the Board's decision to allow the Schmidt lot to abut the street was considered a variance, the alleged variance would not be prohibited by [Upper Freehold Township, N.J., Ordinance 35-611], because it does not affect the calculation of the number of lots obtained, it only affects the location of the lot.

[T]he Board properly . . . determined wildlife habitat evidence to be irrelevant at this hearing.

. . . .

However, the Board, in this Court's opinion, was not required to accept the proffered evidence under the principles set forth in N.J.S.A. 40:55[D-10(d)] and (e). Under subsection (d), the Board may impose reasonable limits on testimony. And under subsection (e), the Board can not impose technical rules of evidence, but it may exclude irrelevant, immaterial, or unduly repetitious evidence.

As stated by the board attorney in the 10/26/04 transcript at page 133, the issue of whether the buffer should be changed due to the existence of endangered species habitation, was one entirely in the hands of the NJDEP.

. . . .

The Board . . . had absolutely no input or impact on the, or could have any impact on the NJDEP's classification of the resource value of the wetlands located on the property, nor should it.

Any evidence proffered to show a change in the buffer should result from the existence of wildlife habitats was of no relevance to this board at this time. The Board's only power was to condition the subdivision approval on NJDEP compliance, which it did. And I refer to Exhibit U, page 13 of the plaintiff's brief.

. . . .

[T]he revisions from the August 18th, 2004 plans were not substantial changes.

. . . .

Here none of the changes resulted in enlargement of this project.

Judge Lehrer also rejected plaintiff's claim that one of the Board members farmed on the property. He found that the Board member did not participate in any of the earlier hearings and recused himself at the subdivision application hearing. Additionally, the judge found no merit to plaintiff's claim that documents were submitted untimely to the Board, noting that Oak Tree submitted the initial documents required by N.J.S.A. 40:55D-10(b) and this statute permits the applicant to supplement the record.

Likewise, Judge Lehrer concluded that contrary to plaintiff's argument, the November 22, 2004 letter from DEP did not invalidate Oak Tree's LOI but merely put Oak Tree on notice that reclassification was going to be recommended, which never occurred after further investigation persuaded DEP that reclassification was not warranted. Finally, Judge Lehrer found that contrary to plaintiff's contention "[t]he Board specifically addressed any potential revision of the LOI by the NJDEP in the resolution, conditioning approval on a valid LOI without revision." The present appeal followed.

On appeal plaintiff raises the following points.

POINT I

THE FAILURE TO PERMIT PLAINTIFF-APPELLANT AND OTHERS TO PRESENT INFORMATION AND EVIDENCE REGARDING THE DISRUPTION OF WILDLIFE HABITATS OF ENDANGERED AND PROTECTED SPECIES WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE.

A. THE BOARD HAD NO PECULIAR KNOWLEDGE OF LOCAL CONDITIONS.

B. THERE WAS NO EVIDENCE TO SUPPORT A DECISION ON THE EFFECT OF THE PRESENCE OF THE NESTS.

POINT II

IN SECURING APPROVAL OF THE SCHEMATIC TEST PLAN AND PRELIMINARY [MAJOR SUBDIVISION], THE DEVELOPER USED AND AS TO WHICH IT HAD NO RIGHTS AND THE CHALLENGE TO THE SCHEMATIC APPROVAL IS NOT TIME BARRED.

POINT III

THE DEVELOPER RECEIVED A RETROACTIVE VARIANCE TO THE SCHEMATIC TEST PLAN IN VIOLATION OF [UPPER FREEHOLD TOWNSHIP, N.J., ORDINANCE 35-611].

POINT IV

THE DEVELOPER VIOLATED [UPPER FREEHOLD TOWNSHIP, N.J., ORDINANCE 35-804 C2(c)5].

The scope of review in any challenge to a decision by a planning board is very limited. A trial court will sustain a board's decision if it "comports with the statutory criteria and is founded on adequate evidence." Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990). Consequently, if there is sufficient support in the record to support a board's action, its approval will not be deemed arbitrary or capricious. Ibid.; see also Jayber, Inc. v. Mun. Council of W. Orange, 238 N.J. Super. 165, 173 (App. Div.) (finding that a court should defer unless a decision is "so arbitrary, unreasonable or capricious as to amount to an abuse of discretion"), certif. denied, 122 N.J. 142 (1990). In our review of a trial court's decision, we employ the same standard.

Applying that standard here, we are satisfied that Judge Lehrer correctly upheld the Board's resolution memorializing the PMSA and we affirm substantially for the reasons expressed by Judge Lehrer in his oral opinion of December 9, 2005. We add the following.

I.

Plaintiff contends that the Board improperly excluded significant evidence, in the form of testimony and pictures, that Cooper's Hawks were breeding on the property. Plaintiff argues that this evidence should have been considered by the Board in determining whether to grant preliminary approval because the existence of the nests bears on the classification of the land as an exceptional resource value. This, in turn, plaintiff argues would have required a 150-foot buffer, making Oak Tree's submitted plans insufficient.

We conclude the Board did not err in declining to consider the proffered photos. First, there was considerable testimony from plaintiff and other members of the public related to the existence of the hawks on the property. At best, the photos would have been cumulative. See N.J.R.E. 403 (giving trial court broad discretion to exclude otherwise relevant evidence if its probative value is outweighed by the risk of the "needless presentation of cumulative evidence"); see also State v. Cooper, 151 N.J. 326, 389 (Law Div. 1997) (finding photos cumulative as they did not lend more than tenuous support). Of greater significance is the fact that the presence of the hawks, as plaintiff argued before the Board, was relevant only to the property's classification as exceptional resource value and the resultant requirement of additional buffers.

The classification of the property is regulated exclusively by DEP under N.J.S.A. 13:9B-30, which provides,

It is the intent of the Legislature that the program established by this act for the regulation of freshwater wetlands constitute the only program for this regulation in the State . . . . To this end no municipality, county, or political subdivision thereof, shall enact, subsequent to the effective date of this act, any law, ordinance, or rules or regulations regulating freshwater wetlands[.]

[N.J.S.A. 13:9B-30.]

As noted in Stochel v. Planning Bd. of Edison Twp., 348 N.J. Super. 636, 647 (Law Div. 2000), "all laws and ordinances which attempt to regulate freshwater wetlands," are preempted by state law. If the Board denied Oak Tree's application for non-compliance with the requirements of the enhanced classification, the Board would essentially be "classifying" wetlands. See N.J.S.A. 13:9B-7. Given the clearly expressed legislative intent to preempt such local law making, the Board properly deferred the issue to DEP. See Stochel, supra, 348 N.J. Super. at 647.

Moreover, even if N.J.S.A. 13:9B-30 does not preempt consideration of the issue, the issue is now moot. All of the nests had been removed by the December 9, 2005 hearing. As the U.S. Supreme Court noted in County of Los Angeles v. Davis, "a case is moot when the issues presented are no longer 'live'" such as where "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." 440 U.S. 625, 631, 59 L. Ed. 2d 642, 649; 99 S. Ct. 1379, 1383 (1979). Consequently, even if we were to conclude the Board erred in excluding the photos, consideration of the photos would be irrelevant to any further review of Oak Tree's plans.

II.

Plaintiff contends the trial court erred in holding that the Board properly accepted Oak Tree's application despite the fact that Oak Tree did not own all of the tract to be subdivided. According to plaintiff, Upper Freehold Township, N.J., Ordinance 35-203 requires that a developer submitting such plans own (or be the beneficial owner of) the land which is the subject of the proposed development. Since Schmitt retained a small portion of the land, plaintiff urges that portion was improperly included in the application to the Board. We disagree.

Judge Lehrer concluded that as a contract purchaser of almost all of the tract, Oak Tree had sufficient beneficial ownership to apply for the entire tract. He further found that Upper Freehold Township, N.J., Ordinance 35-203 did not require that a developer own the entire tract for which it was applying, but merely a part of it. Referencing our unpublished opinion in Hartz Mountain Indus. v. Ridgefield Park, No. A-00802-02T2 (App. Div. June 2, 2004), he explained that a developer can apply for an entire tract as long as it is the legal or beneficial owner of "any land proposed to be included in a proposed development."

While we may defer to the factual conclusions of a trial court, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Whether Oak Tree has sufficient beneficial ownership in the property to be subdivided is a question of law that we review de novo. See id. at 378.

Upper Freehold Township, N.J., Ordinance 35-203 defines the term "developer" as "[t]he legal or beneficial owner or owners of a lot or of any land proposed to be included in a proposed development, including the holder of an option or contract to purchase, or other person having an enforceable proprietary interest in such land." This language is a verbatim recitation of the definition of "developer" contained in N.J.S.A. 40:55D-4 of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129. Words of a statute are to be given their ordinary and generally understood meaning, unless a contrary meaning is expressly indicated. In re Barnert Mem'l Hosp., 92 N.J. 31, 40 (1983); Stevenson v. Keene Corp., 254 N.J. Super. 310, 317-18 (App. Div. 1992), aff'd, 131 N.J. 393 (1993). The American Heritage Dictionary defines the word "any" as "[o]ne, some, every, or all without specification." American Heritage Dictionary (4th ed. 2000).

We are satisfied that nothing in the ordinance nor the MLUL, after which the ordinance is modeled, requires ownership of the entire tract proposed for subdivision in order to satisfy the definition of developer. Moreover, Oak Tree provided evidence to the Board and to the trial court confirming Schmitt's agreement to subdivide. Therefore, the Board properly accepted the application as submitted solely by Oak Tree and the trial court properly affirmed this decision.

We have carefully considered all of the remaining points raised by plaintiff on appeal and conclude that they lack sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

Appellant withdrew his request for oral argument by letter dated January 22, 2007.

While the briefs refer to John "Schmidt," the Agreement For Sale and Purchase of Real Estate and the Resolution Granting Preliminary Major Subdivision Approval reflect John "Schmitt."

17

May 2, 2007