Opinion
DOCKET NO. A-6255-12T1
08-18-2015
MICHAEL J. KING, PRO SE COORDINATOR OF REALSMART, THE LEAGUE OF REAL SMART GROWTH, Plaintiff-Appellant, v. HARMONY TOWNSHIP LAND USE BOARD and NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendants, and ROBERT BENGIVENGA, Defendant-Respondent.
Daniel E. Somers argued the cause for appellant (Somers & Malay, attorneys; Mr. Somers, of counsel and on the brief). Robert R. Levinson argued the cause for respondent (Mr. Levinson, attorney; Mr. Levinson and Robert J. Jones, on the brief).
FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa, St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. L-0260-08. Daniel E. Somers argued the cause for appellant (Somers & Malay, attorneys; Mr. Somers, of counsel and on the brief). Robert R. Levinson argued the cause for respondent (Mr. Levinson, attorney; Mr. Levinson and Robert J. Jones, on the brief). PER CURIAM
Plaintiff Michael J. King appeals the dismissal of his complaint in lieu of prerogative writs against defendant Robert Bengivenga, following a trial de novo in the Law Division. Plaintiff argues defendant Harmony Township Land Use Board (Board) acted arbitrarily and capriciously in approving Bengivenga's subdivision application by relying on defendant Department of Environmental Protection's (DEP) determination that Bengivenga's property did not trigger the DEP's special water resource protection area (SWRPA) regulation, N.J.A.C. 7:8-5.5(h), and concluding the proposed development comported with all relevant state and local requirements. Having reviewed the arguments advanced in light of the record and governing law, we affirm.
The Board defaulted in the trial court proceedings and is therefore not a party on appeal. The DEP filed a letter of non-participation in this matter, stating the Clerk's Office mistakenly identified it as a respondent in this case. The DEP attached a stipulation of dismissal entered into on November 9, 2009, by the DEP and plaintiff regarding Docket No. L-0259-08.
On appeal, plaintiff also argues the Board acted arbitrarily and capriciously in granting Bengivenga certain variances. The trial court refused to consider this argument because plaintiff did not raise it until January 2013 — following over four years of discovery and multiple dismissals without prejudice for plaintiff's noncompliance with discovery and scheduling orders — in a "supplemental brief" filed without leave of the court or Bengivenga's consent. Since the argument was not properly raised before the trial court, we do not address it here. See US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 483 (2012).
I.
We discern the following facts and procedural history from the record. Pleasant Valley Developers, Inc., Bengivenga's business, owns property in Harmony Township. In June 2003, Bengivenga applied to the Board for minor subdivision approval with multiple bulk variances. He proposed subdividing his 7.884-acre lot in two, resulting in a 2.5-acre lot (Lot 1.06) and a 5.384-acre flag lot (Lot 1). Bengivenga subsequently revised his plans, and by October 25, 2005, needed only two variances for Lot 1.06: minimum lot area and minimum lot width. On July 5, 2006, the Board declared the application complete.
Along with his application, Bengivenga submitted a stormwater management report from his engineer, Robert Templin. Templin noted that the proposed development would increase potential runoff from a 100-year storm by 5301 cubic feet and, pursuant to DEP regulations requiring developers to account for an additional ten percent of run-off in their plans, proposed installing two 3000-cubic-foot drywells on the property to accommodate any increased runoff as a result of development.
The Board's engineer, Douglas M. Mace, conducted his preliminary review of Bengivenga's application. Based on the Warren County Soil Conservation District's soil survey maps, Mace believed there was a stream on the property, which would require the development to comply with the additional strictures of the DEP's SWRPA regulation for stream-encroachment. The regulation, part of the DEP's Stormwater Management Rules, N.J.A.C. 7:8-1.1 to -6.3, requires a 300-foot buffer around certain bodies of water. See N.J.A.C. 7:8-5.5(h)(1)(i).
In response, Templin informed Mace that he was unable to locate any stream on the property and, therefore, disagreed about N.J.A.C. 7:8-5.5(h)'s application. At Templin's request, the DEP conducted a Stream Encroachment Jurisdictional Determination under the Flood Hazard Area Control Act Rules, N.J.A.C. 7:13-1.1 to -19.2, and, based upon photographs of the site, determined the SWRPA regulation was not applicable because there was no stream on the property. Following requests from nearby residents, the DEP subsequently conducted another photographic review and an on-site inspection, but remained steadfast in its determination there was no stream and, therefore, no need for compliance with N.J.A.C. 7:8-5.5(h). The DEP summarized its position in a March 27, 2007 letter from Terri Pilawski, Chief of the Division of Watershed Management, stating, "photographs and aerials of the area show that the stream does not exist on the above stated site, so no SWRPA shall be applied to the above stated site."
At the first Board hearing considering Bengivenga's application on August 1, 2007, Templin testified regarding the two proposed drywells to alleviate runoff. Nevertheless, several neighbors expressed concerns about increased flooding arising from the development. In response, Bengivenga and Templin proposed amending the plans to include one large basin toward the back of the property to account for even more potential runoff.
Bengivenga presented this revised plan with the single basin at the Board's December 5, 2007 hearing. Templin testified the proposed basin went above and beyond the obligations under state law. After reviewing the proposal, Mace testified the plan met all relevant requirements and included a satisfactory stormwater plan. The Board unanimously approved Bengivenga's two requested variances and, on February 6, 2008, unanimously approved the proposed subdivision. In doing so, the Board relied upon the DEP's determination regarding the SWRPA regulation's inapplicability to the subject property. The Board published notice of its decisions approving the variances and site-plan on December 13, 2007, and April 12, 2008, respectively.
Plaintiff filed the instant action in the Law Division on May 30, 2008. From the inception of the case, plaintiff repeatedly missed deadlines for filing submissions, resulting in the case initially being dismissed for failure to prosecute and later, after the trial court reinstated the complaint in 2010, dismissed again without prejudice for violating the court's case management order. After extensive motion practice and numerous adjournments, most at plaintiff's request, plaintiff filed his trial brief on November 9, 2012. He argued the Board acted arbitrarily and capriciously in relying on the DEP's determination regarding compliance with State regulations in lieu of applying Harmony Township's ordinances, particularly §§ 142-6(G) and 142-6(G)(8)(a)(1) governing SWRPAs.
After a two-day trial de novo, the trial court affirmed the Board's approval of Bengivenga's application and, on July 3, 2013, dismissed plaintiff's complaint with prejudice. The court concluded the Board did not act arbitrarily or capriciously by deferring to the DEP's findings and approving the application.
This appeal ensued.
II.
"[A] [planning board's] exercise of its discretionary authority based on its factual determinations will not be overturned unless arbitrary, capricious or unreasonable." Rocky Hill Citizens for Responsible Growth v. Planning Bd. of Rocky Hill, 406 N.J. Super. 384, 411 (App. Div. 2009) (citation and internal quotation marks omitted); see also Toll Bros., Inc. v. Bd. of Chosen Freeholders, 194 N.J. 223, 256 (2008) (noting that party challenging municipal action bears the burden of proof). Thus, whether before the trial court or upon appellate review, a planning board's actions are presumed valid. Cell S. of N.J. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002). The rationale underlying this limited review is that local officials are generally more familiar with their municipality's interests. See 388 Route 22 Readington Realty Holdings, LLC v. Twp. of Readington, 221 N.J. 318, 340 (2015). Yet, "a court is not bound by an agency's determination on a question of law and the court's construction of an ordinance under review is de novo." Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004) (citation omitted).
The Legislature amended the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, in 1981 by passing the Stormwater Management Act (SMA), N.J.S.A. 40:55D-93 to -99, which "delegates to the DEP 'the authority to regulate storm water management.'" In re Stormwater Mgmt. Rules, 384 N.J. Super. 451, 454 (App. Div.) (quoting N.J. State League of Municipalities v. Dep't of Cmty. Affairs, 310 N.J. Super. 224, 240 (App. Div. 1998), aff'd, 158 N.J. 211 (1999)), certif. denied, 188 N.J. 489 (2006). Additionally, the SMA requires municipalities to "prepare a stormwater management plan and an implementing stormwater control ordinance in accordance with" the DEP regulations. Ibid. (citation omitted).
Pursuant to this delegated authority, the DEP amended its Residential Site Improvement Standards (RSIS) guidelines, N.J.S.A. 40:55D-40.1 to -40.7; N.J.A.C. 5:21-1.1 to -8.1, by promulgating regulations for stormwater management, N.J.A.C. 7:8-1.1 to -6.3, which apply to all "major development[s]": that is, "any new or expanded development that proposes 'disturbing one or more acres of land or increasing impervious surface by one-quarter acre or more.'" In re Stormwater Mgmt. Rules, supra, 384 N.J. Super. at 456 (quoting N.J.A.C. 7:8-1.2). Of particular note is N.J.A.C. 7:8-5.5(h), which provides that SWRPAs, consisting of 300-foot buffer zones, "shall be established along all waters designated Category One at N.J.A.C. 7:9B and perennial or intermittent streams that drain into or upstream of the Category One waters as shown on the USGS Quadrangle Maps or in the County Soil Surveys."
Here, the trial court properly concluded the DEP regulations are, as pertains to Bengivenga's property, the only relevant standard for determining when an SWRPA is required to protect a waterway. The Harmony Township ordinances that plaintiff argues the Board erred in not considering, by their own terms, do not apply to the proposed development. Township of Harmony Code § 142-2, addressing the applicability of the Township's Stormwater Management regulations, provides:
A. This chapter shall be applicable to all site plans and subdivisions for the following major developments that require preliminary or final site plan or subdivision review:
Bengivenga's proposed development is residential, more than one acre and, therefore, within the ambit of the DEP's RSIS regulations. See N.J.A.C. 7:8-1.2. Consequently, the DEP's stormwater regulations preempt any municipal ordinance and serve as the only pertinent metric for whether a SWRPA is required for the property.(1) Nonresidential major developments; and
(2) Aspects of residential major developments that are not preempted by the [RSIS] at N.J.A.C. 5:21.
The ordinance's definition of "major development" mirrors that in N.J.A.C. 7:8-1.2.
Regarding the necessity of an SWRPA under N.J.A.C. 7:8-5.5(h), the DEP conducted two photographic studies of the property and even undertook an on-site inspection. The result of this inquiry was the DEP's factual determination that no Category One waterway existed on the property. The Board relied upon this determination in similarly finding no such waterway existed and concluding Bengivenga's property did not trigger section 7:8-5.5(h). Moreover, the Board relied upon the testimony of Bengivenga's engineer, as well as its engineer, that the proposed development comported with all relevant state and local regulations. In light of the fact no expert testimony contradicting these conclusions was presented to the Board, plaintiff failed to meet his burden of establishing the Board acted arbitrarily or capriciously in relying on the DEP's finding there was no Category One waterway on the property and both experts' conclusion the proposed development met all relevant regulations. See Toll Bros., supra, 194 N.J. at 256.
See US Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012) ("[W]e 'defer to an agency's interpretation of . . . [a] regulation, within the sphere of [its] authority, unless the interpretation is plainly unreasonable.'" (second, third and fourth alterations in original) (quoting In re Election Law Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)) (internal quotation marks omitted)). --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION