LARS STERNAS v. DMH2, LLC,
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0036-19T3
LARS STERNAS,
Plaintiff-Appellant,
v.
DMH2, LLC, a New Jersey
Limited Liability Company, and
THE PLANNING BOARD OF
THE TOWNSHIP OF VERONA,
Defendants-Respondents.
_____________________________
Argued March 11, 2020 - Decided April 2, 2020
Before Judges Koblitz, Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-7289-15.
Angelo J. Cifelli argued the cause for appellant (Piro
Zinna Cifelli Paris & Genitempo, LLC, attorneys;
Angelo J. Cifelli, on the briefs).
Derek W. Orth argued the cause for respondent DMH2,
LLC (Inglesino Webster Wyciskala & Taylor LLC,
attorneys; John Philip Inglesino, of counsel; Derek W.
Orth, on the brief).
Mark J. Semeraro argued the cause for respondent
Planning Board of the Township of Verona (Kaufman
Semeraro & Liebman LLP, attorneys; Mark J.
Semeraro, of counsel and on the brief).
PER CURIAM
Plaintiff Lars Sternas appeals from a July 22, 2019 order following a
plenary hearing in this prerogative writs matter. We affirm.
The hearing was the result of our reversal and remand of a December 8,
2016 judgment upholding a 2015 resolution defendant Verona Township
Planning Board (Board) passed, approving defendant DMH2, LLC's application
to construct a three-story mixed-use building.
The Board conducted an eleven-day public hearing on the application over
the course of eight months in 2014 and 2015. It reviewed several exhibits and
heard from many witnesses including those on behalf of DMH2, objectors, and
Board personnel. Plaintiff objected and argued DMH2 required variances
because its site plan application was non-conforming and lacked a natural
wooded buffer. The application proposed to merge two adjoining lots, resulting
in an irregular "s" shape for the property.
In 2015, the Board adopted a fifty-page resolution approving the
application. The Board determined the lot did not conform with any of the lot
layouts set forth in the township's ordinance, including corner lots. The Board's
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2
planner determined the property should not be classified as a corner lot and the
setbacks in the application therefore conformed with the ordinances. The Board
adopted the planner's recommendation to treat portions of the lot as the rear yard
and others as the standard side yard, requiring thirty-foot and twenty-foot
setbacks, respectively, which existed on the property.
Citing a 2014 resolution rejecting DMH2's application for different
reasons, the Board concluded the ordinance requiring a property's wooded buffer
be kept in its natural condition did not define what constituted wooded. Indeed,
in the 2014 resolution the Board considered
whether [DMH2] could create a buffer as part of the
ordinance requirements . . . or whether the Code
required [DMH2] to leave part of the property in its
natural state. . . . The Board decided in favor of
[DMH2's] position that [it] could create a buffer as part
of the development, that there did not exist a buffer, and
that [township ordinances] did not require [DMH2] to
maintain the [p]roperty in its existing condition or
prohibit [DMH2] from removing trees on the
[p]roperty.
The Board voted to accept its 2014 determination regarding the buffer, and
approved DMH2's proposal to remove some of the trees in the buffer zone and
create a buffer using "certain types of [recommended plantings]" without a
variance.
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Plaintiff also questioned the municipal engineer's communications with
DMH2 during the pendency of the application. The engineer sat as a voting
member of the planning board. He admitted having conversations with a
representative of DMH2. The Board denied plaintiff's request to recuse the
engineer. The first trial judge affirmed the Board's determinations.
Plaintiff appealed from the trial judge's decision. We summarized the
parties' dispute and stated:
Here, the engineer is claiming the discussions
between him and DMH2's representative or its engineer
were limited to advising what forms needed to be filled
out and what maps had to be presented for either the
Board of Adjustment or the Planning Board. We also
understand plaintiff is not alleging the engineer
purposely engaged in any untoward conduct.
Notwithstanding, the engineer admits there were
several conversations with DMH2 or its representative.
Dispensing more than merely ministerial information
may have occurred if there were several contacts.
Moreover, any ex parte contact the engineer had with
the applicant is not insulated from disclosure and must
be examined. In our view, further fact-finding about
what was discussed between the engineer and DMH2 or
its representative during those several conversations is
in order.
[Sternas v. DMH2, LLC, No. A-2051-16, slip op. at 10-
11 (App. Div. Feb. 4, 2019).]
We concluded:
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Recusal of [the engineer] is required if there is evidence
such member and an applicant discussed the merits of a
particular application ex parte. . . . Ex parte
communications touching on the merits of the
application risk the . . . member forming an impression
of the merits before witnesses have testified and before
any objector or member of the public has placed any
objection on the record. . . .
Accordingly, we remand this matter to the trial
court so it may schedule a plenary hearing to adjudicate
plaintiff's claim the engineer was precluded from
hearing DMH2's application because of a conflict of
interest. A fully developed record where, . . . key
witnesses testify is vital so that the trial court can
adequately assess the merits of plaintiff's claim.
[Id. at 11-12.]
Following the remand, plaintiff filed a motion before a second trial judge
for an order permitting him to engage in discovery and to set a date for a case
management conference to establish discovery deadlines. The motion was
denied and a plenary hearing scheduled.
At the plenary hearing, plaintiff renewed his request for discovery.
However, the trial judge concluded the remand was to address the conflict of
interest issue by considering testimony from the engineer concerning his
conversations with DMH2 on the record already presented. At the two-day
plenary hearing, both the engineer and the DMH2 representative with whom he
conversed ex parte testified.
A-0036-19T3
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The trial judge found both the engineer and the representative credible.
Based on their testimony, the judge concluded there was no evidence of a
conflict of interest because the conversation related to township ordinances and
"did not go to the merits; it did not go to the application; it did not go to how
[the engineer] would vote."
"'[F]actual determinations of . . . planning board[s] are presumed to be
valid and the exercise of . . . discretionary authority based on such
determinations will not be overturned unless arbitrary, capricious or
unreasonable.'" Klug v. Bridgewater Twp. Planning Bd., 407 N.J. Super. 1, 12
(App. Div. 2009) (quoting Fallone Props., LLC v. Bethlehem Twp. Planning
Bd., 369 N.J. Super. 552, 560 (App. Div. 2004)). "[T]he law presumes that
boards of adjustment and municipal governing bodies will act fairly and with
proper motives and for valid reasons." Id. at 12-13 (alteration in original)
(quoting Fallone, 369 N.J. Super. at 560-61). The reviewing court's
responsibility is "to determine if the planning board properly exercised its
discretion." Id. at 13 (citing Fallone, 369 N.J. Super. at 561). While "[t]he
reviewing court should not substitute its judgment for that of the board[,] . . . it
is 'essential that the board's actions be grounded in evidence in the record.'" Ibid.
(internal citations omitted).
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Our review of a trial judge's findings is limited. Fagliarone v. Twp. of N.
Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963). Reversal is proper only when
"we are convinced the trial judge's factual findings and legal conclusions 'are so
manifestly unsupported by or inconsistent with the competent, relevant and
reasonably credible evidence as to offend the interests of justice.'" Klug, 407 N.J. Super. at 9 (quoting Fagliarone, 78 N.J. Super. at 155). We review a trial
judge's interpretations of law de novo. Ibid. (citing Mt. Hill v. Twp. Comm. of
Middletown, 403 N.J. Super. 146, 193 (App. Div. 2008)).
Plaintiff argues the trial judge did not comply with our instructions on
remand because the failure to permit discovery produced a limited fact-finding
and prevented a fully developed record for review. Plaintiff also argues the
Board misinterpreted its own ordinances related to the setback and buffer
requirements. He asserts these are questions of law, which the judge should
have reviewed de novo, rather than deferring to the Board's mistaken
interpretations.
We are satisfied the trial judge accomplished the goal of the remand,
which was to elicit testimony regarding the details of the conversations between
the engineer and the DMH2 representative. The testimony revealed the engineer
answered questions related to township ordinances and nothing more. If the
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testimony was unclear or revealed a need to delve further into the nature of the
communications, the judge could exercise his discretion to permit discovery.
However, neither the record, nor plaintiff on this appeal provide any support to
the supposition that discovery was mandated or required under the
circumstances.
We discern no error in the Board's decision to grant DMH2's application
without variances. "The established rules of statutory construction govern the
interpretation of a municipal ordinance." Twp. of Pennsauken v. Schad, 160 N.J. 156, 170 (1999) (citing AMN, Inc. v. Twp. of S. Brunswick Rent Leveling
Bd., 93 N.J. 518, 524-25 (1983)). An ordinance should be interpreted to
"effectuate the legislative intent in light of the language used and the objects
sought to be achieved." Merin v. Maflaki, 126 N.J. 430, 435 (1992). We first
look to an ordinance's plain language. Schad, 160 N.J. at 170 (citing Bergen
Commercial Bank v. Sisler, 157 N.J. 188, 202 (1999)). "The meaning derived
from that language controls if it is clear and unambiguous." Ibid. (citation
omitted). "Zoning ordinances generally are liberally construed in favor of the
municipality." Id. at 171 (citing Place v. Bd. of Adjustment of Saddle River, 42 N.J. 324, 328 (1964)).
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Here, the township's ordinance 150-5.3(E) requires corner lots to have a
thirty-foot side yard setback. The ordinance classifies a corner lot as having
"frontage upon two improved streets . . . [and] ha[s] two front yards, one side
yard, and one rear yard." The plain language of the ordinance contemplates
corner lots as four-sided lots.
Recognizing that DMH2's combined lot did not have four sides, but
instead was shaped in a "s" pattern, the Board considered the evidence presented,
including the recommendation of its planner, who concluded the property should
not be classified as a corner lot and found the setbacks in DMH2's application
conformed with the ordinance. The Board treated portions of the yard as the
rear yard and others as the standard side yard, requiring thirty-foot and twenty-
foot setbacks, respectively, on these portions of the property. The Board's
decision on the setbacks was grounded in the evidence and was not erroneous.
Regarding the buffer, plaintiff argues the Board improperly inserted
adjectives such as "densely wooded" into the plain language of the ordinance to
justify its decision permitting DMH2 to alter the buffer without a variance .
Township ordinance 150-11.1(D) states a property's buffer shall be kept in its
natural condition where wooded. The ordinance does not define what
constitutes wooded.
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The Board determined the buffer did not contain enough tree coverage to
be considered wooded for purposes of the ordinance. Neither DMH2's
application, nor the resolution dispensed with the requirement for maintaining a
buffer. The Board's reasoning respecting the buffer did not constitute error.
Affirmed.
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