LARS STERNAS VS. DMH2, LLC (L-7289-15, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: April 2, 2020
• Docket: A-0036-19T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case an d its use in other cases is limited. R. 1:36-3.

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

A-0036-19T3 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.

A-0036-19T3 3 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:

A-0036-19T3 4 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 5 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).

A-0036-19T3 6 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

A-0036-19T3 7 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)).

A-0036-19T3 8 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.

A-0036-19T3 9 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.

A-0036-19T3 10