NORTHGATE CONDOMINIUM ASSOCIATION, INC 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NOT FOR PUBLICATION WITHOUT THE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-1042-09T3

NORTHGATE CONDOMINIUM

ASSOCIATION, INC.,

Plaintiff-Appellant,

v.

BOROUGH OF HILLSDALE PLANNING

BOARD, CALIBER BUILDERS, INC.,

GOLDEN ORCHARDS ASSOCIATES,

L.P., and GOLDEN OAKS HOMEOWNERS

ASSOCIATION,

Defendants-Respondents.

________________________________________________________________

January 24, 2011

 

Argued October 26, 2010 - Decided

 

Before Judges Carchman, Messano and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2305-08.

 

Ira E. Weiner argued the cause for appellant (Beattie Padovano, L.L.C., attorneys; John J. Lamb, of counsel; Mr. Weiner and Daniel L. Steinhagen, on the brief).

 

Russell R. Huntington argued the cause for respondents Caliber Builders, Inc., Golden Orchards Associates, L.P. and Golden Oaks Homeowners Association (Huntington Bailey, L.L.P., attorneys; Mr. Huntington, of counsel and on the brief; Siobhan Spillane Bailey, on the brief).

 

Harold Ritvo argued the cause for respondent Hillsdale Planning Board.

PER CURIAM

This appeal by plaintiff Northgate Condominium Association (Northgate) challenges the preliminary site plan approval granted to defendants Caliber Builders, Inc. and Golden Oaks Homeowners Association, Inc. (collectively, Caliber) by defendant Borough of Hillsdale (Hillsdale) Planning Board (board). The approval granted conditional approval for the development of age-restricted, single-family, detached houses in Hillsdale. Thereafter, plaintiff filed an action in lieu of prerogative writs in the Law Division and following a trial de novo, Judge Menelaos Toskos, in a comprehensive written opinion, affirmed the board's approval. Plaintiff appeals, and we affirm.

I.

We set forth the facts adduced at the hearing before the planning board and at the Law Division. Defendant Golden Orchards Associates, LP (Golden Orchards) is the owner of property located on the tax map of Hillsdale as Block 506, Lot 1, and the tax map of the Township of Washington (Washington) as Block 2101, Lots 3 and 7 (together, the property). The Hillsdale property is located in the R2 Zone, which permits age-restricted senior housing as a conditional use. The property is bounded on the north by Ell Road and is located on a site known as Golden Orchards, apparently a farm previously operated as a fruit orchard. Northgate is located immediately south and down gradient of the property and is situated at a lower elevation than the property.

Caliber filed an application for subdivision approval, preliminary site plan approval and conditional lot approval, pursuant to N.J.S.A. 40:55D-67, for the development of thirty-seven single family, age-restricted houses, with thirty-one units within Hillsdale and six units in both Hillsdale and Washington, as well as a minor subdivision for one single family home in Washington, not part of the adult community. The units would operate as a homeowners or condominium association, which would own and maintain the sewer system and private roads. Caliber did not seek any variances.1

On April 20, 2007, notice of Caliber's application and a May 2, 2007 hearing was mailed to property owners within 200 feet of Lots 1, 3 and 7, and notice was also published on April 21, 2007, but the meeting did not take place. Defendants mailed a second notice to property owners within two hundred feet of Lots 1, 3 and 7 and published notice on June 25, 2007 and June 29, 2007, respectively, for a hearing scheduled July 10, 2007. Notice was also provided for all subsequent hearings by way of mailings and publications, and the board mailed and published a November 2, 2007 notice for a November 15, 2007 hearing, as well as published a separate December 7 2007 notice for a December 14, 2007 hearing.

Although there was only one lot in Block 506, the notices, mistakenly identified the property as "Lot 3Q, Block 2101, Township of Washington and Lots 1.01 and 1.02, Block 506, Borough of Hillsdale . . . ." Furthermore, outside of the notices published by the board, Lot 7, Block 2101 in Washington was not listed as part of the property. The notice stated, though, that the property was "commonly known as Golden Orchards (south of Ell Road)[.]" At the hearings, plaintiff did not object to the description of the properties in the notice, but only that property owners within 200 feet of Northgate were also entitled to notice of the hearings, as they were in a drainage area downstream of the property to be developed. The board rejected this argument, and no other objection was made.

The critical and contentious issue in dispute was Caliber's proposed stormwater management plan. Under the current conditions, "the runoff generally occurs in three (3) distinct sub-basins - Musquapsink Brook to the West, a[n] intermittent man-made ditch in the Central portion servicing approximately 2 upstream acres, and an intermittent, unnamed wetland/intermittent stream within the Eastern portion, which services approximately 5 acres upstream."

Alex Zepponi, Caliber's site engineer, who at the time of the hearings worked in public works and civil engineering, testified as an expert witness. He prepared a two-volume storm water management report (the storm water report) regarding Caliber's application, dated August 10, 2007, from which he derived his testimony.

Zepponi was familiar with the site and described the preliminary site plan, the conditional use requirements and the proposed minor subdivision of the development. He described the site as having a "rolling topography," where, "as you proceed west, the property drops off into this wetland area. It then rises somewhat higher than the beginning and then drops off in the middle slightly, rises again as you go further west and then drops off ultimately to the Swapsink Brook." He described in detail the nature and direction of the flow as well as the nature of the property. Caliber's application proposed specific drainage facilities to manage storm water runoff. He outlined, in detail, the steps taken by Caliper to address the detention facilities, filters, infiltrators and described the discharge pattern:

 

Roof discharge from homes in each of the three (3) sub-basins are directed to individual infiltrator systems, re-introducing groundwater in the immediate vicinity of impervious interception.

 

Other discharges are directed to each of three (3) 'local' detention/infiltration system[s] to re-introduce those flows to groundwater within each of the three (3) sub-basins, similar to that which occurs under existing conditions.

 

Discharge from the western scour hole, flows over hundreds of feet undisturbed, undulationing upland and wetland areas, allowing significant opportunity for absorption, adsorption, infiltration and biological activity prior to introduction to Musquapsink Brook.

 

Discharge from the two (2) acre off-site portion of the central sub-basin enters an open vegetated drainage ditch and discharges through a six (6) foot wide culvert (previously approved as a 24 inch pipe more than capable of conveying the generated flows) under the road into the previously identified depression, which is capable of containing the entire 10 year event, offering the same environmental benefits as above, prior to discharge off-site to an existing, man-made ditch and piped system currently flowing through the downstream townhouse development.

 

Discharges from the western half of the east sub-basin were diverted from the south to the north (contrary to grade), such that those discharges would run through to a significant on-site wetlands at that location and be subjected to all the benefits of overland/wetland areas offers to being conveyed south and off-site to an existing man-made ditch and piped system through the adjacent townhouse development.

 

According to Zepponi, the water discharge under the proposed site plan would be "less than what occurs under the existing conditions." At the hearings, he further explained:

The drainage on the eastern section of the property would drain into this extension of pipes and catch basins, . . . pick up the drainage almost to the central section, carry it into the . . . manufactured water quality devices. They're essentially chambers that are . . . filled with oversized Brita filters.

 

At first blush, water quality storm, if you recall, run down the pavement, intercepted by the catch basins and, before it gets deposited into detention structure, it goes through these Brita filters. The filters have to be replaced. They need to be inspected. There's a whole program in terms of maintenance and reporting of, the home owners' association would be required, by [the New Jersey Department of Environmental Protection (DEP)], to show that they have done in terms of checking them. They're supposed to be checked after each storm and what they have done in terms of replacing them and maintenance.

 

And, there are programs that are set up where outside firms will come in, they'll check them, clean them and/or replace them. That's all part of the DEP process.

 

Once it leaves these water quality basins, it goes into the underground detention. So, they take care of the water quality. This larger pink box, which is hundred feet of 60 inch pipe, double barreled, that is perforated so that it also infiltrates, after the water goes in, infiltrates. What isn't infiltrated at the easterly end is regulated by an outward control structure. So, you have two pipes, 60 inches in diameter and that outlet control structure might have a hole in the bottom that's 3 inches, perhaps another hole halfway up that's 6 inches. And, that's the only water that could get out that eventually discharges into Ell Road and reaches the culvert. Those discharges, in terms of peak volumes, peak velocity, peak runoff rates are less than what occurs under existing conditions.

 

Zepponi concluded that Caliber's proposal satisfied several requirements of the Hillsdale Stormwater Management Ordinance (SMO). He was also confident that Caliber's application would be approved by the DEP because Caliber's prior subdivision application for the same site was approved by the DEP using the same methodologies.

There was conflicting testimony from plaintiff s expert, John Thonet, a licensed engineer who specializes in civil engineering and environmental planning. Thonet previously submitted a report to the board regarding Caliber's earlier application, and his new report to the board was "quite similar. Only the numbers would be bigger." Thonet stated that Caliber's proposal "relies very heavily on putting water back in the ground[,]" and plaintiff would be the "recipient" of an increase in ground water.

Thonet challenged Zepponi s calculations and opinions. Thonet also stated that Zepponi's hydrological analyses were incorrect; he claimed that Zepponi miscalculated and misidentified the topography and terrain surrounding the drainage areas. Thonet explained, with regard to one drainage area, that "most of the land use there [Zepponi] assumed was a . . . wood grass combination." However, "most of this area actually isn't like that. Most of this area is what we would call woods. And woods ha[ve] a lower rate of runoff . . . than a woods grass combination." Thonet also stated that Zepponi did not correctly identify the drainage lines separating drainage areas and did not include all off-site drainage areas in his analysis, especially the drainage area at Northgate; as a result, Caliber "doesn't really know what the total flows are, where, where it leaves Northgate." As a result of these alleged errors, Zepponi's analysis conducted in the storm water report was "wrong." Succinctly stated:

So, what my point is on this, this whole existing analysis is that it's nonsense. There is no -- all of the numbers, all of the calculations, everything is complete, utter nonsense and it doesn't tell you or me or the applicant or anyone anything about how much water is leaving the site and entering onto Northgate's property. He simply doesn't know.

 

All the analysis he did was done incorrectly and it wasn't even the right analysis.

 

According to Thonet, the drainage system was not permitted by the DEP. He stated that the drywell systems were located in hydrologic class C soil, which was not permitted by the DEP, as opposed to class A or B soils, which are permitted. He concluded that the proposed system was prohibited by the DEP, and the soil would be unable to continue soaking up excess water. Thonet, however, admitted that he never examined Northgate to examine the soil or current water runoff situation.

Zepponi responded. He first stated that the prior application was approved by the DEP, and he was confident that the current application, which used the same methodology for calculating the current stormwater management plan, would be similarly approved. He also noted that Thonet depicted the drainage area in a different location than what was planned in the storm water report. This modification changed the drainage area, which, in turn, changed the runoff and the time concentrations. Zepponi also noted that Thonet disregarded a swale designed system, which ultimately leads stormwater to a wetlands stream.

With regard to Thonet's criticism of Zepponi s flow data, Zepponi responded that "sheet flow is defined as the flow in a relatively thin sheet of generally uniformed thickness." In a flat parking lot, for example, 150 feet may be appropriate. After observing the wooded area, which Thonet did not do, Zepponi determined that, because the land was "not manicured, [and there are] natural woods, natural rivulets, lots, tree stumps, brush, old tree stumps that are semi decayed and falling over[,]" that fifty feet was "absolutely reasonable."

Zepponi also noted, regarding Thonet's criticism of the storm water report, that Caliber's engineer assessed the hydraulic impact on the ground water table and designed the site to avoid adverse hydraulic impacts. Furthermore, the storm water report intentionally included more conservative estimations and made the detention larger.

Responding to Thonet's claim that the infiltrators would be impermissibly placed in C soil, Zepponi noted that he performed six test pits throughout the property, including in the vicinity of a proposed detention/infiltration system, and soil samples from those test sites were sent to an independent laboratory for analysis. Those tests confirmed that the soil was "generally consistent as K-3 or better soil[,] which relates to a B-type soil."

The board heard testimony from Christopher Statile, the board engineer since 1986. Statile determined, based on his review of the respective reports and testimonies of Zepponi and Thonet, that Zepponi's research "has been reasonable fair and correct[,] and I don't necessarily disagree with his analysis. . . . I believe everything he has done is what I would consider feasible." Zepponi's design would also "capture[] 100 percent of the water during a hundred year storm[,]" and Statile did not "see any calculations to back . . . up" Thonet's critique of Zepponi's plan. Ultimately, Zepponi's plan was "adequate."

After considering the evidence presented at the hearings, the board approved Caliber's application for preliminary site plan approval and adopted a resolution on January 29, 2008. The board determined that Caliber "satisfied all the requirements of the conditional use requirements of the Hillsdale Senior Housing Ordinance and therefore has satisfied the conditional use requirements." The board also determined that Caliber "met the requirements under the Hillsdale Land Use Ordinance for preliminary site plan approval[.]" Among the conditions of the approval, the board determined that "[a] finding by the Planning Board of any substantial Preliminary Site Plan approval shall require [Caliber] to reapply for Amended Preliminary Site Plan approval to the Planning Board." In addition, approval was granted upon the condition that there be "[n]o buildings or improvements in Washington . . . ."

As to the competing experts, the board noted that Zepponi "responded to every question with answers that were rational and reasonable[,]" and that the "drainage plan is feasible and adequate." The board determined, in contrast, that Thonet "lack[ed] credibility." Thonet "acknowledged some mistakes in his original report to the [b]oard and corrected those mistakes . . . ." He also "showed no desire to consider or take into account" the other expert's testimony. "He remained steadfast in his opinions on issues such as the scope of DEP review, the compliance with stormwater management and other regulatory standards . . . , even when the facts warranted additional consideration." The board also noted Thonet's credibility was questioned because of his body language, "which showed an abject lack of openness to any opinions but his own[,] and his demeanor in response to questions of the Applicant's attorney and the [b]oard." The board determined that these intangible factors supported the conclusion that Thonet "was not an objective expert and had no room for other opinions in stormwater management planning or engineering issues."

Plaintiff filed its action in lieu of prerogative writs, challenging the board's approval on several grounds and alleging that defendants failed to provide adequate notice2. In an expansive written opinion, Judge Toskos rejected plaintiff s claims and dismissed the complaint. This appeal followed.

On appeal, plaintiff raised similar issues to those raised in the Law Division. It claimed that the notice was defective and the Board lacked jurisdiction; the trial judge erred by finding that a D-3 conditional variance was not required; the judge erred in affirming the Board s rejection of the testimony plaintiff s expert; and the Board s acceptance of the feasibility of Caliper s drainage management plan was feasible was arbitrary, capricious and unreasonable.

II.

We first address the issue of notice. Relying on N.J.S.A. 40:55D-11, plaintiff alleges that the public notices provided by Caliber were "critically deficient" because they "did not accurately describe the location and lots upon which the development was proposed and failed to identify one of the lots in the development." Plaintiff asserts that "[a] reasonable person receiving the notice in this case would have absolutely no idea where the lots designated are located because none of them actually exist."

We conclude that the notice was sufficient but also that plaintiff waived its right to appeal the notice requirement in N.J.S.A. 40:55D-11. Plaintiff appeared and was represented before the board, made no objection to content of the notice, "w[as] apprised of all of the particulars of the application and had full opportunity to contest it on the merits[.]" Izenberg v. Bd. of Adjustment, 35 N.J. Super. 583, 588 (App. Div. 1955). The board held eight public hearings, from July to December 2007, on Caliber's application, and at no time did plaintiff object to the substance of the notice provided. Moreover, plaintiff did not present a single neighbor, objector or member of Northgate who would have appeared before the board if not for the defective notice. Plaintiff is now barred from objecting from the validity of the notice. See Bd. of Comm'rs v. Ernst, 123 N.J.L. 373, 375 (E. & A. 1939).

N.J.S.A. 40:55D-11 provides that the notice shall state the date, time and place of the hearing, the nature of the matters to be considered and "an identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the municipal tax assessor's office . . . ." The notice requirement is jurisdictional, Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 237 (App. Div. 1996), and failure to comport with the requirements renders the board's actions to be a "nullity." Brower Dev. Corp. v. Planning Bd. of Twp. of Clinton, 255 N.J. Super. 262, 270 (App. Div. 1992). The purpose of the notice requirement is to

notify[] the public of the "nature of the matters to be considered" . . . to ensure that members of the general public who may be affected by the nature and character of the proposed development are fairly apprised thereof so that they may make an informed determination as to whether they should participate in the hearing or, at the least, look more closely at the plans and other documents on file.

 

[Perlmart of Lacey, supra, 295 N.J. Super. at 237-38.]

 

Here, Caliber's notice states, in pertinent part:

[T]he Planning Board of the Borough of Hillsdale will hold public hearings concerning the application of Caliber Builders, Inc., commonly known as Golden Orchards (south of Ell Road), for approvals . . . to construct a development of Single Family Detached Age Restricted Housing as a conditional use in the Zone. . . . The property is known as Lot 3Q, Block 2101, Township of Washington and Lots 1.01 and 1.02, Block 506, Borough of Hillsdale . . . on the current Tax Assessment Maps.

 

It is undisputed that the notice misidentified the tax map description of property identified in Caliber's application. This conclusion, however, does not end the analysis.

Despite its several errors, the notice was sufficient to satisfy N.J.S.A. 40:55D-11. In Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment, 397 N.J. Super. 335, 349 (App. Div. 2008), we concluded that despite a clerical error, the developer's "notice reasonably complied with th[e] requirement for 'an identification of the property.'" There, the notice, which was published in the newspaper as well as in letters sent to nearby owners, "referr[ed] to the subject property being in Section (or Block) '2713' rather than Section '2173.'" Id. at 347. However, the developer's "application on file in the Township reflected the correct '2173' Section number[,]" and "the Board's . . . agenda also listed the correct Section number for the property." Ibid. We noted that the "inclusion of the block and lot designations are not even mandatory in all instances, as the statute permits the applicant to include simply a street address." Id. at 349 (citing N.J.S.A. 40:55D-11).

We further observed, with regard to the description of the proposed use of a property, that "'notice should fairly be given the meaning it would reflect upon the mind of the ordinary layman, and not as it would be construed by one familiar with the technicalities solely applicable to the laws and rules of the zoning commission.'" Perlmart of Lacey, supra, 295 N.J. Super. at 238 (quoting Holly Dev., Inc. v. Bd. of County Comm'rs, 140 Colo. 95, 101 (1959) (citations omitted)). For example,

[p]eople turn out at a zoning hearing to oppose "a gasoline station," or a given sign or structure. Few laymen have any idea of the difference between a variance and a special exception, and certainly no lawyer would advise his client to "stay away" on the basis of that distinction . . . .

 

[Perlmart of Lacey, supra, 295 N.J. Super. at 239 (citing In re Appeal of Booz, 111 Pa. Commw. 330, 337 (Pa. Commw. Ct. 1987) (other citations omitted)).]

Therefore, "[t]he notice requirements should be read as requiring a reasonably accurate description of the activity or structure which the application wishes to institute or erect; e.g., 'gasoline station,' or an 'accessory building located within the required rear yard.'" Ibid. Only "[w]here the notice fails to give a reasonably accurate description of this, adjacent landowners may well be misled." Ibid.

The emphasis should be placed on "accurately identifying the type of use or activity proposed by the applicant in laymen's terms, rather than the technical zoning term for that use[.]" Ibid. This "laymen's notice" "serves the dual purpose of adequately apprising the public of the general subject of the zoning hearing while at the same time avoiding unnecessary delays which could result from the need to readvertise the hearing in those cases where the applicant mischaracterizes the technical zoning relief which is sought." Ibid.

This principle applies with equal force regarding the description of the lot to be developed; the critical determination is whether the notice provides a reasonably adequate description of the land subject to the application, such that concerned neighbors or members of the general public who may be affected by the proposed development may properly protest the proposed use or structure.

Here, Caliber's notice accurately described the proposed development of age restricted homes in Hillsdale and Washington, and identified the property as being "commonly known as Golden Orchards," which was "south of Ell Road." This description was reasonably adequate to notify members of the public, particularly those living within two hundred feet of the property as well as members of Northgate, the property to be developed, especially understanding that there had been prior proposed developments at that property. The board correctly argues that "the property identified south of Ell Road and for 37 houses would certainly apprise someone since this is the only major area of development in that location. Golden Orchards, as well, was an orchard that had been there for many years and known to people throughout the area." Moreover, plaintiff was present at the hearings, undoubtedly because the notice was reasonably adequate as we noted, and plaintiff has not identified a single member of the public who would have attended the hearings, if not for the technical deficiencies in the notice.

We deem it insignificant that Lot 7, in Washington, was omitted in the description of the land to be developed, as the board's approval was granted upon the condition that there be "[n]o buildings or improvements in Washington . . . ." In sum, we agree that the notice was adequate and find plaintiff s arguments without merit.

III.

Plaintiff next argues that the trial judge erred in finding that a conditional use variance was not required, and "a reversal is required since no required variance or waiver was obtained." Specifically, plaintiff alleges that the application does not comply with the Residential Site Improvement Standards (RSIS) requirement of providing a seven foot parking lane, as well as providing sidewalks on both sides of the street, rather than one.3

In reviewing the board's approval, we are bound by the same standard as the court below. Grubbs v. Slothower, 389 N.J. Super. 377, 382 (App. Div. 2007). Review of Caliber's compliance with the RSIS is a mixed issue of fact and law. We will defer to the board's findings of fact so long as those findings are not "arbitrary, capricious, [n]or unreasonable." Berkeley Square Ass'n, Inc. v. Zoning Bd. of Adjustment, 410 N.J. Super. 255, 263 (App. Div. 2009) (quoting Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, W. Windsor Twp., 172 N.J. 75, 81-82 (2002)) (internal quotations omitted). While "[t]he Board's conclusions of law are subject to de novo review[,] . . . we recognize the board's knowledge of local circumstances and accord deference to its interpretation." Grubbs, supra, 389 N.J. Super. at 383 (citations omitted).

Caliber's application proposed a twenty-two foot roadway as well as off-street parking, including a two-car garage and two-car driveway for each house, and fourteen visitor parking spaces throughout the development, for a total of 162 parking spaces. Only 148 parking spaces are required under relevant regulations. Whether Caliber's application conforms with the RSIS requires analysis of the pertinent Administrative Code sections.

As noted, single-family age-restricted housing is a conditionally permitted use in the R-2 district, and condition five provides: "Roadway widths and improvements shall be in conformance with the [RSIS]." Code of the Borough of Hillsdale 310-67(I)(1)(e). N.J.A.C. 5:21-4.1(a) states that "Streets shall be classified in a hierarchy with design tailored to function." Residential streets are classified pursuant to Table 4.2, as provided in N.J.A.C. 5:21-4.1. N.J.A.C. 5:21-4.1(c). The "Residential Access" street, as stated in Table 4.2, "[p]rovides frontage for access to lots and carries traffic with destination or origin on the street itself[,]" and "[a]ll, or the maximum number of housing units, shall front on this class of street."

N.J.A.C. 5:21-4.2(a) further provides that "[c]artway width for each street classification shall be determined by parking and curbing requirements that are based on the intensity of development served by that street." Statile concluded that Caliber's proposed street is properly classified as a "residential access street[,]" and plaintiff concedes that the proposed street would be a residential access street.

Statile further stated that under the RSIS, Caliber "is required to have [a] 28 foot roadway with a 7 foot parking lane. However, we have sufficient on-site parking with the unit." Therefore, "[w]e don't need that 7 foot parking lane and require then 21 . . . feet." Because Caliber proposed a twenty-two foot roadway, it "exceeds the [RSIS] standards." This was also reflected in a November 21, 2007 memorandum to the board.

Table 4.3 delineates the cartway lengths for each street classification. See N.J.A.C. 5:21-4.2(c). Residential access streets, which would ordinarily require parallel parking, require a twenty-eight foot roadway, which includes a seven foot parking lane. However, as noted by Statile, Caliber "has eliminated the parking lane because adequate off-street parking is provided on-site for each dwelling in the driveway area in accordance with the minimum standards for residential parking."

Plaintiff argues that "the only action the board could have taken was to grant relief from the [twenty-eight foot] requirement, had it been sought." According to plaintiff, the board "did not have the authority to ignore the requirement[,]" and plaintiff argues that Caliber was required to seek a variance from this requirement.

The RSIS does not state that a residential access street must include a parking lane, even when sufficient off-street parking is provided. By way of example, Table 4.3 states that only a twenty-foot street, with no parking lane, is required for a high intensity residential access road with off-street parking. In this case, a seven-foot parking lane is not required because Caliber has proposed suitable off-street parking, providing 162 parking spaces when only 148 is required. Because a seven foot on-street parking lane is not required, Caliber's proposed twenty-one foot road satisfies the requirements of the RSIS.

Plaintiff also argues that the proposed roadway is a medium intensity residential access street, which requires two sidewalks. N.J.A.C. 5:21-4.2, Table 4.3 provides that a low intensity residential access street should provide one sidewalk, while a medium intensity residential access street should provide two sidewalks. The issue now raised by plaintiff is whether the record reflects that the proposed road is medium or low intensity.4

N.J.A.C. 5:21-4.2(b) provides that the "[i]ntensity of development shall be based on the number of dwelling units per gross acre of land served by a particular street, excluding the acreage of dedicated common open space or other areas restricted from future development[.]" A street is low intensity if it has less than or equal to four dwellings per gross acre, and a street is medium intensity if has more than 4 and less than or equal to eight dwellings per gross acre. N.J.A.C. 5:21-4.2(b).

Statile opined, in the November 21, 2007 memorandum to the board, that "the roadway should be classified as a 'Low Intensity Residential Access' because less than 4 units/gross acre are proposed (i.e. less than 38 units)." Plaintiff challenges this calculation, noting that "the roadway serves 34 units and the gross acreage dedicated to those units (after elimination of the environmentally constrained areas) is 7.79 acres, or 4.36 units per acre." According to plaintiff, "the RSIS classifies the development as a 'medium intensity' development." Caliber responded to this calculation, arguing that plaintiff's calculations "ignores customary and common sense rounding of fractional calculations." Plaintiff correctly notes that of the thirty-seven proposed homes, thirty-four are on the proposed new roadway. According to Thonet's submitted reports, however, these thirty-four homes are built over 9.79 acres in Hillsdale. Although plaintiff asserts that two of the 9.79 acres are "environmentally constrained", and not calculated as part of the gross acreage, plaintiff does not cite to anything in the record to support this assertion. The record reflects that Caliber's application was spread out over 9.79 acres, which results in approximately 3.47 units per gross acreage. The proposed residential access road is low intensity. N.J.A.C. 5:21-4.2, Table 4.3.

Moreover, even if plaintiff's calculations were correct, resulting in 4.36 units per acre, the RSIS does not prohibit a township from employing customary rounding techniques in calculations of gross acreage. Here, for example, the township might have decided that 4.36 acres is closer to four units per gross acre and therefore still classified as low intensity.

Only one sidewalk is required, and the board's conclusion, that Caliber's application conforms to the RSIS, is well supported by the record.

IV.

Plaintiff next challenges the board s factual finding regarding the testimony of plaintiff s engineer. Plaintiff argues that the "board's decision regarding the credibility of [p]laintiff's stormwater expert, Thonet, was not a good faith analysis of the substance of what he presented." Rather, plaintiff asserts that the board's reasons for rejecting Thonet's testimony were "unreasonable," and that the record reflects that Thonet answered the board's questions without complaint or criticism. Plaintiff also questions the board's decision that Thonet's body language indicated a lack of openness.

The finding as to Thonet's testimony is equally relevant as it relates to the stormwater drainage plan. We first address that issue. Plaintiff argues that the board erred in finding that Caliber's stormwater drainage plan is feasible. Plaintiff claims that the board "failed to substantively analyze the expert opinions being given on the various technical issues being raised, opting for the much easier task of adopting the engineer's testimony that supported their intended vote." Specifically, plaintiff identifies two claimed errors in the storm water report that were allegedly overlooked by the board in reaching its decision. First, plaintiff claims that the board never analyzed whether the use of dry wells for infiltration and recharge of stormwater runoff from the roofs of the planned homes met the regulatory guidelines. Plaintiff claims that the presence of Hydrologic Soil Group C, which is insufficiently permeable to permit dry wells for rook infiltration, was present, and Thonet testified as to this fact.

As to the second alleged error, plaintiff claims that "the failure to assess the hydraulic impact on the downgradient detention basins located on Northgate's property violates the Hillsdale [SMO]." Plaintiff claimed that "Caliber refused to undertake the assessment of the potential impact groundwater table on Northgate's property."

As to these two issues, our standard of review of the board s factual findings as well as its role in accessing credibility in not only relevant but, here, dispositive. We must defer to factual findings developed in the record below, so long as those findings are not "arbitrary, capricious, [n]or unreasonable." Berkeley Square, supra, 410 N.J. Super. at 263 (quoting Cell S. of N.J., supra, 172 N.J. at 81-82). Due to its "peculiar knowledge of local conditions," Grubbs, supra, 389 N.J. Super. at 382 (citing Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990) (other citations omitted)), as well as its "'thorough[] familiar[ity] with their communities' characteristics and interests[,]'" Fallone Properties, L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004) (quoting Pullen v. Twp. of S. Plainfield, 291 N.J. Super. 1, 6 (App. Div. 1996)), the board's factual findings are entitled to "substantial deference and are presumed to be valid." Grubbs, supra, 389 N.J. Super. at 382 (citations omitted). Critical to the testimony of the competing experts here, the board "has the choice of accepting or rejecting the testimony of witnesses. Where reasonably made, such choice is conclusive on appeal." Shim v. Washington Twp. Planning Bd., 298 N.J. Super. 395, 412 (App. Div. 1997) (quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 288 (1965)). The board has had the "opportunity to make first-hand credibility judgments about the witnesses who appear . . . ; it has a feel of the case that can never be realized by a review of the cold record." New Jersey Div. of Youth and Family Servs. v. M.C., 201 N.J. 328, 342-43 (2010) (quotations omitted).

Ultimately, we must "determine whether or not the board acted within the statutory guidelines and properly exercised its discretion[,]" rather than "substitute [our] judgment for that of the board's." Fallone Properties, supra, 369 N.J. Super. at 561 (citations omitted). Our review is therefore limited "'to determine whether the board could reasonably have reached its decision.'" Ibid. (citing Davis Enters. v. Karpf, 105 N.J. 476, 485 (1987)).

The Hillsdale SMO, Section 310-107(7)(A)(1) provides that the "[g]uidelines for stormwater management practices are contained in the New Jersey Stormwater Best Management Practices Manual [(NJ BMP)]." Code of the Borough of Hillsdale 310-107(7)(A)(1). The NJ BMP provides that "a dry well is a specialized infiltration facility intended only for roof runoff." New Jersey Stormwater Best Management Practices Manual, 9.5-1 (2004). Furthermore:

The use of dry wells for stormwater quality or quantity control is feasible only where the soils are sufficiently permeable to allow a reasonable rate of infiltration. Therefore, dry wells designed for storms greater than the groundwater recharge storm can be constructed only in area with Hydrologic Soil Group [(HSG)] A and B soils.

 

[New Jersey Stormwater Best Management Practices Manual, 9.3-3 (2004).]

 

We have noted that "[b]ecause drainage and sewage may have a pervasive impact on the public health and welfare, . . . the feasibility of specific proposals or solutions must be resolved before preliminary approval is given." W.L. Goodfellows and Co. of Turnersville, Inc. v. Washington Twp. Planning Bd., 345 N.J. Super. 109, 116-117 (App. Div. 2001) (emphasis added); accord Field v. Franklin, 190 N.J. Super. 326, 332-333 (App. Div.), certif. denied, 95 N.J. 183 (1983). The applicant need only provide "sufficient information on the fundamental elements of his plan[.]" Field, supra, 190 N.J. Super. at 333.

Thonet contended that "the site's soils are all HSG 'C' soils and hence, the NJ BMP Manual's design criteria specifically prohibit the use of these facilities for capturing and infiltrating the 2-year, 10-year, and 100-year storms[.]" However, Thonet's conclusions were not based on independent studies of the actual soils on the property, but rather regional publications. These same publications state that "on-site investigation is needed to plan for intensive uses in small areas."

In contrast to Thonet, Zepponi conducted six analyses of the soil, sent the soil to a lab, where the results were "signed and sealed by an engineer and the results are generally consistent as K-3 or better soil[,] which relates to a B-type soil." The B soil was "overlaid" by C soil, "and [the] particular infiltrators are in the B-soil section."

Plaintiff challenges the bona fides and technical deficiencies in Zepponi s testing; however, our review need not involve the retesting of soil on the property or recharacterizing the results of soil tests to counterweight the board's findings of fact; rather, we need only determine whether the board's decision regarding the soil was supported by sufficient, credible evidence. Here, the soil permeability reports indicate that the soil in this particular test site is borderline K2 / K3. Plaintiff's claim that the data was inputted incorrectly and resulted in an inaccurate soil reading should have been explored before the board, not for the first time on appeal. The record developed before the board reflects that the soil permeation testing was appropriate and the board made an appropriate finding based on the credible evidence presented.

The Hillsdale SMO requires, regarding assessing hydraulic impacts:

The design engineer shall assess the hydraulic impact on the groundwater table and design the site so as to avoid adverse hydraulic impacts. Potential adverse hydraulic impacts include, but are not limited to, exacerbating a naturally or seasonally high water table so as to cause surficial ponding, flooding of basements, or interference with the proper operation of subsurface sewage disposal systems and other subsurface structures in the vicinity or downgradient of the groundwater recharge area.

 

[Code of the Borough of Hillsdale 310-107(F)(1)(b)(4).]

 

"The size of the drainage area shall include onsite and offsite lands contributing to the design point." N.J.A.C. 5:21-7.2(c)(6).

Zepponi conducted a hydraulic assessment of the property, but not Northgate's property. He explained that an analysis of Northgate's property was not warranted pursuant to N.J.A.C. 5:21-7.2(c)(6):

. . . my testimony previously was that there was a point of interest in the design point. If I were designing a culvert at the down stream point of our property on to the neighbor's property, I not only have to take into account which is, this is what the code is referring to, the water generated by my site but, the water generated by everybody upstream. So, to make sure the culvert is not inundated, we're not designing a culvert at the lower end of the property, we're looking at a point of interest which is different than a design point.

 

. . . .

 

We re analyzing this to see what we had to reduce the on-site discharges were to meet the DEP criteria.

 

Zepponi also addressed the peak rates of storm water runoff into existing streams on the property and concluded that they will be reduced to rates required by DEP regulations and the Hillsdale SMO; the detention measures introduced by Caliber's plan will contribute to avoidance of adverse impacts. Zepponi stated that, based on his hydrograph report, "because of the infiltration we've put in the ground in the B-Soils from the roofs, we have actually reduced the runoff volume to each one of their detention systems by putting it in the ground." His report also concluded that "the peaks will be less and the peaks will be half of what it is not for the 10 years; it would be 25 percent or less for the hundred year; it would be 20 percent less peaks and in each one of those." Zepponi also "checked the hundred year for volume. In the worst case, the volume of, discharge over land through their site would be reduced, each one of the streams, all three of them."

Zepponi also testified that the infiltrators will be located below the surface, in B soil, not at the surface where the C soils are located and the water is "perched." In all the six locations tested, some of which were nineteen feet deep, no groundwater nor mottling of the soil was encountered.

Plaintiff asserts that Caliber was required to conduct soil boring with groundwater wells analysis, allegedly advocated by Thonet at the hearings. At the hearings, however, Thonet testified that a mounding analysis is a "standard practice on every project that I'm aware of." Statile testified, regarding Thonet's opinion, that he did not "believe that those types of studies are standard operating procedures. . . . In 32 years of practice . . . I don't think I have really seen even one applicant make that type of effort because it's very involved and it's subject to a great deal of judgment also."

Based on the record, there was sufficient evidence for the board to conclude that Caliber satisfied the Hillsdale SMO, and Caliber "assess[ed] the hydraulic impact on the groundwater table and design the site so as to avoid adverse hydraulic impacts." Code of the Borough of Hillsdale 310-107(F)(1)(b)(4).

Finally, plaintiff asserts that the board's rejection of Thonet's testimony was unreasonable, because "the board here never rejected or expressed any concern for the believability of Thonet's testimony during the hearing."

As noted, when presented with "'diametrically opposed testimony,'" the board is free to accept or reject the testimony of witnesses; so long as this choice is "'reasonably made, such choice is conclusive on appeal.'" Shim, supra, 298 N.J. Super. at 412 (quoting Kramer, supra, 45 N.J. at 288). Moreover, the board has had the opportunity to see the witnesses testify and examine their respective demeanors to develop a "feel of the case that can never be realized by a review of the cold record." M.C., supra, 201 N.J. at 342-43.

The board's decision to accept Zepponi's testimony is well-supported by the record. Zepponi submitted a two-volume storm water report and also conducted independent studies, soil samples, laboratory testing and DEP approved calculations. Zepponi also addressed objections raised by Thonet and stated why Thonet's opinions were invalid. Statile similarly reviewed Thonet's objections and reports and gave a detailed opinion to the board on the storm water management issues. At that time, Statile stated that the "Storm water management plan complies with our ordinance as well as the State."

Following Statile's testimony, Mayor Deutsch, also a member of the board, noted that he "found that the applicant's testimony, through his engineer, was certainly . . . more persuasive, that this is going to be an adequate system. This was supported and corroborated in our own engineer in whom I have a tremendous amount of faith, having worked with him for nine years." The board's resolution itemizes the evidence produced by Zepponi and summarized his testimony, as well as his rebuttal to Thonet's criticisms. Zepponi provided detailed examples of mistakes made by Thonet regarding the classification of the soil at the property; mistakes in delineation of drainage areas; errors in testimony concerning Caliber's compliance with water quality standards; that Thonet's testimony regarding the impact on Northgate's property was based on faulty assumptions; and that Thonet incorrectly defined the drainage areas by missing the existence of a swale and drainage area. Zepponi explained why Thonet's error resulted in a faulty opinion that Caliber's drainage area was incorrectly defined, and Zepponi stated that his explanation of a drainage area was correct given the existence of the swale that Thonet missed. At another point, when Thonet was asked whether he had "any data on the functionability of the gutters, . . . studied [g]utters and storm events[] or . . . planning practices of home owners or the size of the prospective gutters[,]" Thonet replied, "I'm a 70 year old home owner and nobody knows more about cleaning gutters than I do." When confronted with Zepponi's testimony that he misidentified the topography, Thonet replied, "I went back to the site and looked at it. And, I'm just here to report that my opinion has not changed."

The board's decision to reject Thonet's testimony and accept Zepponi's and Statile's was well-supported by the record. Zepponi's conclusions were supported by the record and accepted by the board engineer, and Zepponi noted several errors in Thonet's analysis. Moreover, the board determined that Thonet lacked credibility because of his body language, "which showed an abject lack of openness to any opinions but his own[.]" We defer to the board's findings with regard to the demeanor of witnesses, especially those which cannot be realized by a reading of a cold record. M.C., supra, 201 N.J. at 342-43. The board's findings were neither arbitrary nor unreasonable.

A

ffirmed.

1 Caliper had previously sought approvals from the planning board regarding this property. While certain approvals were granted, the project never materialized.

2 Plaintiff also filed a separate complaint, alleging, among other things, breach of contract and seeking specific performance of the settlement agreement. The judge dismissed all counts of that complaint by an August 20, 2009 order granting partial summary judgment, and the remaining count of that complaint, alleging fraud, was "reluctantly" permitted to proceed to discovery.

3 Plaintiff also suggests, in a related point, that a "d" variance, rather than a "c" variance, was required because the condition that roadway widths and improvements shall be in conformance with the RSIS applies was not generally applicable in the zone.

 

"The planning board . . . has the authority to permit variances from any requirement generally applicable in the zone which are ancillary to its review of a site plan or conditional use application; such variances are commonly referred to as 'c' variances." Lincoln Heights Ass'n v. Twp. of Cranford Planning Bd., 314 N.J. Super. 366, 374-375 (Law Div. 1998) (citing N.J.S.A. 40:55D-60; N.J.S.A. 40:55D-70(c)), aff d, 321 N.J. Super. 355, certif. denied, 162 N.J. 131 (1999). See also, William M. Cox, New Jersey Zoning and Land Use Admin., Sec. 17-3 (2010). However, the board "has no authority to waive or alter a [specific] conditional use standard[,]" relief from which "may be sought only though the" zoning board by way of a "d" variance. Ibid.

Here, the RSIS requirements are generally applicable on a State-wide basis, N.J.A.C. 5:21-1.5(a), (b), as well as in the general provisions of the Code of the Borough of Hillsdale 310-98(D). Therefore, conformance with the RSIS is not a condition solely applicable to the conditional use, and any variance therefrom would be categorized as a "c" variance.

4 Plaintiff failed to raise this issue before the trial judge. Plaintiff argued that Caliber failed to comply with the RSIS regarding roadway widths under the RSIS, but did not claim that Caliber was required to build two sidewalks, as opposed to one. Plaintiff argued that a variance was required pursuant to N.J.S.A. 40:55F-70(d)(3), but did not specifically claim that a second sidewalk was necessary.

We "'will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available' unless the matter involves the trial court's jurisdiction or is of public importance." Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Accord Sch. Alliance Ins. Fund v. Fama Const. Co., Inc., 353 N.J. Super. 1, 3 (App. Div. 2002). Neither exception applies here. However, as the matter is fully developed before the board and in the expert reports, and for the sake of completeness, we address plaintiff's claims.