NOT FOR PUBLICATION WITHOUT THE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 and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1218-15T2
A-3014-15T2
MARK and KATHERINE SMITH,
Plaintiffs-Appellants,
v.
SOUTH BRUNSWICK TOWNSHIP,
PUBLIC SERVICE ELECTRIC &
GAS COMPANY, and TRUSTEES
OF PRINCETON UNIVERSITY,
Defendants-Respondents.
____________________________________
MARK and KATHERINE SMITH,
Plaintiffs-Respondents/
Cross-Appellants,
v.
SOUTH BRUNSWICK PLANNING BOARD,
Defendant,
and
PUBLIC SERVICE ELECTRIC &
GAS COMPANY,
Defendant-Appellant/
Cross-Respondent.
______________________________________
Argued May 8, 2017 – Decided May 18, 2017
Before Judges Sabatino, Haas and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket Nos.
L-906-15 and L-907-15.
Bruce I. Afran argued the cause for Mark and
Katherine Smith, appellants in A-1218-15 and
respondents/cross-appellants in A-3014-15.
David L. Cook argued the cause for Public
Service Electric and Gas Company, respondent
in A-1218-15 and appellant/cross-respondent
in A-3014-15 (Sills Cummis & Gross, attorneys;
Mr. Cook and Steven Siegel, on the briefs).
Richard S. Goldman argued the cause for
Trustees of Princeton University, respondent
in A-1218-15 (Drinker Biddle & Reath, LLP,
attorneys; Mr. Goldman, Karen A. Denys and
Nicole S. Bayman, on the brief).
Donald J. Sears argued the cause for South
Brunswick Township, respondent in A-1218-15
and joins in the brief of respondent Trustees
of Princeton University.
PER CURIAM
These back-to-back appeals, which we now consolidate for
purposes of this opinion, arise from defendant South Brunswick
Township's ("Township's") adoption of two land use ordinances in
2003, and defendant Public Service Electric & Gas Company's
("PSE&G's") application in 2014 for planning board approval to
construct an electrical substation in the Township on land that
2 A-1218-15T2
PSE&G purchased from defendant Trustees of Princeton University
("the University") in the zone covered by the ordinances.
In Docket No. A-1218-15, plaintiffs Mark and Katherine Smith
appeal from the Law Division's October 13, 2015 order granting the
University's motion for summary judgment and the Township's motion
to dismiss plaintiffs' complaint challenging the ordinances.1 The
trial court found that plaintiffs' complaint was untimely because
they had waited almost twelve years after the adoption of the
ordinances to file it and, in any event, the arguments plaintiffs
raised lacked merit.
In Docket No. A-3014-15, PSE&G appeals from the Law Division's
February 10, 2016 order reversing the South Brunswick Planning
Board's ("Planning Board's") approval of its application for a
variance permitting the substation project to extend into a 200-
foot residential buffer between the substation and a property
owned by a resident who did not object to PSE&G's application.
PSE&G also challenges the court's decision to decline to consider
the Planning Board's approval of the minor subdivision involved
in the project. In its cross-appeal from the February 10, 2016
order, plaintiffs challenge the court's rejection of all of the
1
PSE&G joined in these motions.
3 A-1218-15T2
other arguments they raised against the Planning Board's approval
of the project.
Having reviewed the parties' respective claims in light of
the record and applicable law, we affirm the October 13, 2015
order dismissing plaintiffs' challenge to the two ordinances. We
reverse the portion of the trial court's February 10, 2016 order
that overturned the Planning Board's decision to grant PSE&G a
variance concerning the 200-foot residential buffer, and we
reinstate the Planning Board's approval of that variance. In
addition, we reverse the trial court's denial of PSE&G's minor
subdivision application and remand that matter to the trial court
with the direction that it consider PSE&G's application for that
part of its project. Finally, we affirm the trial court's
rejection of all of plaintiffs' remaining arguments.
I.
In 2003, the University sought general development plan
("GDP") approval from the Planning Board to develop 1,800,000
square feet of property it owned, known as the Princeton Nurseries
site. The path to approval occurred in stages, beginning with the
rezoning of Princeton Nurseries, as detailed in a developer's
agreement between the University and the Township. As part of the
agreement, the Township amended and supplemented its municipal
code by adopting two ordinances that are now at issue in this
4 A-1218-15T2
matter: Ordinance 15-03 and Ordinance 17-03.
Ordinance 15-03, introduced and passed on first reading by
the Township Council ("Council") on March 4, 2003, created a new
zoning category known as the Office/Corporate (OC) Zone District.
On March 13, 2003, a published notice advised that Ordinance 15-
03 would be considered at a public meeting on April 1, 2003. The
notice further advised that free copies of the ordinance could be
obtained from the municipal clerk. On April 1, 2003, the Council
adopted Ordinance 15-03, and notice of the adoption was published
on April 10, 2003.
Ordinance 15-03 states that the purpose and intent of the OC
Zone District
is to permit the development of executive and
corporate offices, high-technology research
facilities and full service hotel and
conference activities in comprehensively
planned facilities, with accessory activities
provided through a plan which shall be
consistent with any historic land use and
character of the surrounding area.
Among the other land uses permitted in the OC zone under Ordinance
15-03 are "government and public utility facilities," a term that
is not specifically defined in the ordinance. The ordinance also
contains regulations pertaining to building sizes, lot sizes, and
buffer areas required between the OC Zone District and privately-
owned residential property in the area.
5 A-1218-15T2
Ordinance 17-03, which rezoned Princeton Nurseries from an
OR Office/Research/Conference District, R-1 Single-Family/Cluster
District and R-4 Village Residential District to an OC Zone
District, was also introduced by the Council on March 4, 2003. On
March 12, 2003, the Planning Board reviewed it and recommended its
approval.
On March 13, 2003, a published notice advised that Ordinance
17-03 would be considered at a public meeting on April 1, 2003.
Personal notices and copies of Ordinance 17-03 were mailed to
those individuals and firms that owned property within 200 feet
of the Princeton Nurseries site, including plaintiffs. Plaintiff
Mark Smith received and signed for this written notice on March
19, 2003.
Following the public meeting on April 1, 2003, the Council
announced that Ordinance 17-03 would be tabled and considered on
April 15, 2003. On April 10, 2003, another notice was published
advising the public of the upcoming April 15, 2003 meeting. On
April 15, 2003, the Council adopted Ordinance 17-03 as presented,
and notice of its adoption was published on April 24, 2003.
With the two ordinances in place, the University filed its
GDP application on August 1, 2003. The University's GDP
application contained a general land use plan, which provided:
6 A-1218-15T2
6.1 General Land Use Plan. The General Land
Use Plan indicates the tract areas and the
limits of the land uses within the tract. The
land uses are
Office/Corporate District Uses
Open Space Preserve.
Among the uses permitted within the OC
District, as described in the South Brunswick
Land Use Ordinance are: executive and
corporate offices; scientific or high
technology laboratories devoted to research,
design, experimentation or production;
assembly of high technology and electronic
equipment; health maintenance organization;
and full service hotels/conference center.
Section 7.1.5 of the GDP references the 200-foot residential
buffer zone requirement at issue here:
Finally, the General Land Use Plan shows the
required buffer area between any OC District
and the boundary line of any privately owned
residential property of two hundred (200)
feet, in accordance with Section 175-
93B(4)(f).
On October 24, 2003, a published notice advised that a public
hearing would be held on November 3, 2003, to consider the GDP.
The notice provided a detailed synopsis of the GDP and the
University's requests for relief. Personal notices were mailed
to owners of property within 200 feet of the site, including
plaintiffs. On December 10, 2003, the Planning Board approved the
GDP. The University and the Planning Board executed a GDP
Developers' Agreement, which provided that approximately 150 acres
7 A-1218-15T2
of Princeton Nurseries "is now zoned the OC District" and the
majority of the remaining acreage would be preserved as open space.
The Developers' Agreement also stated that "no additional
. . . environmental . . . studies" would be required for future
development of the property.
After securing the necessary approvals, the University
expended approximately $4 million in developing the site in the
ten-year period between 2004 and 2014. According to two
uncontradicted certifications submitted by Curt Emmich,2 the vice-
president of the real estate consulting company retained by the
University to develop the Princeton Forrestal Campus, the
University undertook "significant development and incurred
significant costs" between 2004 and 2015, "all in reliance on the
2003 OC Zoning Ordinance" and GDP approval, including, among other
things, donating property it owned for open space purposes,
installing water and sewer lines, and ensuring the historic
preservation of nearby residences.
Notice of this activity was provided to residents, including
plaintiffs. For example, in 2004, the University obtained the
Planning Board's approval for a retention basin on the site, and
2
Emmich certified that both of his certifications were based upon
his personal knowledge after reviewing "the relevant development
files, permits, agreements, maps, site plans and documents related
to the property at issue in this case."
8 A-1218-15T2
notice of those proceedings was published. In 2008, the University
obtained the Planning Board's approval to construct a roadway and
detention basins on the site.
In 2014, PSE&G sought approval for a subdivision of a portion
of Princeton Nurseries, zoned as OC and consisting of a 7.369 acre
lot, for construction of a 6019 square foot electrical substation.
When it submitted this application, PSE&G was the contract
purchaser of the proposed subdivision, and it later completed the
purchase and acquired title to the property on May 29, 2015.
PSE&G's substation would be located on the north-central portion
of the subdivision, along with a 1150 square-foot control building
erected on the southeast portion of the site.
Although PSE&G requested several variances, of particular
relevance to this appeal is the "(c)(2)" dimensional variance it
sought under N.J.S.A. 40:55D-70(c)(2) to permit the project to
extend into the 200-foot residential buffer zone located between
the subdivision and Block 99, Lot 11.04, a residential property
located north-east of the project.3 The owner of Lot 11.04 did
not file any objection to PSE&G's variance application. The
buildings on Lot 11.04 were located in the northern most portion
of the lot and were well beyond the 200-foot buffer.
3
PSE&G also requested a variance from the requirement that its
subdivision contain at least 300 feet of street frontage.
9 A-1218-15T2
Plaintiffs own Block 99, Lot 8.031, a parcel of land in the
R-1 zone that is well to the west of PSE&G's subdivision, and well
outside the 200-foot buffer. Indeed, the parties agreed at oral
argument on appeal that there was at least 500 feet of buffer
between the PSE&G project and plaintiffs' property line.
Therefore, PSE&G's application for a variance of the 200-foot
buffer requirement did not involve an encroachment upon
plaintiffs' property.
The Planning Board held a four-day public hearing at which
ten experts testified, as well as several members of the public.
Joseph Barton, a PSE&G consultant, explained that PSE&G's
application was necessitated by a finding made by Pennsylvania-
Jersey-Maryland Interconnection, LLC ("PJM"), a regional
independent power transmission organization that operates under
the Federal Energy Regulatory Control Commission ("FERC"). 4
According to Barton, PJM conducted a study that concluded that "if
a [substation] project was not executed, there would be voltage
violations in the region." If proper voltage was not sustained,
then "rolling brownouts" could result, which would involve
"tak[ing] customers out of service." Additionally, PSE&G would
4
PJM oversees and coordinates power transmission in thirteen
states, operates transmission assets owned by its member
companies, including PSE&G, and performs reliability studies.
10 A-1218-15T2
face "fines and penalties" from FERC if it did not build a new
substation to service the area and its customers.
To address PJM's concerns, PSE&G proposed a two-phase
project. Barton explained that during the first phase,
construction of the new substation would link together two existing
New Jersey substations. Through that linkage, voltage reliability
in the area would improve for 62,000 current customers. In the
second phase of the project, additional transformers and switch
gears would be installed to distribute power to 25,000 new
customers.
According to Barton, the substation would be gated and fenced,
with "an elaborate landscape plan around the property" designed
to hide it from view. While the substation would typically be
unmanned, a PSE&G certified traveling operator would inspect it
once per week. Electricity would travel out of the substation
underground, rather than through overhead wires held by poles.
M.D. Sakib, PSE&G's principal system planning engineer,
testified that based upon PJM's simulations and studies, as
corroborated by PSE&G, the anticipated voltage violation was
expected to occur in 2015. According to Sakib, there was "a very
high possibility" of future brownouts occurring if the proposed
substation was not built. Sakib further explained that while
phase one of the project would support voltage in the area by
11 A-1218-15T2
increasing power availability and creating "another hub" for the
South Brunswick area, phase two would add more power capacity to
accommodate new homes and businesses. Because Penns Neck, an
existing substation serving the Township, had minimal capacity for
growth and enlargement, Sakib testified that the better solution
was construction of a new substation as proposed by PSE&G.
Christopher Light, PSE&G's senior project manager, testified
that although other sites were considered, the proposed location
for the substation was "the perfect site" to tie all of the lines
together, as required by PJM. Light explained that the site's
location would enable two substations, located to the north and
south, to be linked as required by PJM.
Light testified that if the station was moved west on the
property, then it would not encroach upon the 200-foot residential
buffer of Lot 11.04. However, that orientation would "move[] the
station more into the view shed of some of the residents on Ridge
Road" and "extend[] the length of [the] underground feeds that go
into the station increasing exposure of those circuits a little
bit." Moving the project to the west would also bring it closer
to plaintiffs' property line.
Light testified that it was possible that PSE&G "could install
a new technology that is called GIS" (gas-insulated switch gear)
that might partially reduce the substation's footprint in one
12 A-1218-15T2
specific area of the project. However, Light explained that
implementing this technology would not "help . . . in reducing the
overall size of the station." In addition, using GIS technology
would cost ratepayers an additional $8 million, or approximately
an extra 25% of the total project cost, and Light explained that
PSE&G prefers air, rather than gas, insulated equipment.
Art Bernard, a professional planner, testified on behalf of
PSE&G that the project would promote the Township's general master
plan goals, including economic development, and would benefit the
public through the provision of "more reliable power." Bernard
further stated that the project advanced the purpose of the
Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-1 to -112, by
encouraging appropriate use of the land for projects designed to
serve and protect the public.
Bernard found "no substantial negative impact" related to the
residential buffer variance, as the substation's placement would
"have a minimal impact on adjacent properties." He explained that
the sole affected property, Lot 11.04, was "a very long residential
lot, and [the resident's] home is something like 1,000 feet from
that corner" of the site that would encroach upon the buffer zone.5
Bernard further testified that PSE&G "provided a very generous
5
As previously noted, plaintiffs' property has at least a 500-
foot buffer from PSE&G's project.
13 A-1218-15T2
landscaping plan . . . that will screen the facility and the basin
from the homes." Finally, Bernard testified that all the lines
feeding into the substation will be underground, and "the ambient
sounds along Ridge Road would be such that people will not hear
the facility in their homes."
Although the subdivision did not have any street frontage,
Bernard likewise found "no negative impact" with regard to that
requested variance, because the site was "not going to generate
any traffic to speak of" and would be accessible to employees and
emergency personnel through an access road. Bernard further
testified that the public would benefit from the site's lack of
street frontage, because it made the facility more secure.
Edward Clark, an acoustical consultant and licensed
professional engineer, completed a sound study for the project.
He described the two kinds of noise produced by substation
transformers: a "hum" and a "broadband noise associated with
cooling fans." He testified that none of the sound frequencies
generated by the transformer would exceed any of the maximum levels
set in the Township's code. Moreover, Clark concluded that it
would be "difficult to hear the substation at points offsite"
given other ambient noise in the area, such as vehicle traffic on
Route One.
In support of their opposition to the project, plaintiffs
14 A-1218-15T2
presented the testimony of Russell Smith, a professional engineer.
Smith testified that the project did not comply with the
residential buffer on the east side near Lot 11.04 and would extend
into the 200-foot wide buffer for that property by as much as 160
feet. Smith further testified that the proposed access road would
not provide adequate access for emergency vehicles, particularly
since it was located in an area which floods "periodically during
storms." Smith opined that the proposed width of the access road,
twenty feet, was "substandard" and would "make it difficult for
two vehicles to pass" through, thereby hampering emergency vehicle
access.
Carlos Rodriguez, a professional engineer and planner,
testified that "there is nothing unique about this site . . . that
would mandate the proposed subdivision and site layout as
specifically proposed." He opined that the (c)(2) variance "cannot
be granted without detriment to the public good or integrity to
the neighborhood" as the facility would "dramatically undermine
the character of the neighborhood" and decrease property value.
He further testified that since the 200-foot residential buffer
zone is clearly noted in the GDP, any intrusion "represents a
violation of the GDP and can only be sanctioned by way of an
amendment to that same document."
As a better alternative, Smith and Rodriguez proposed moving
15 A-1218-15T2
the site out of the residential buffer zone altogether and
eliminating the need for a variance. Rodriguez added that any
constraints or hardships asserted by PSE&G, such as the greater
expense of GIS technology, or the inability to acquire more land
from the University, were "self-imposed."
Regarding PSE&G's request to waive submission of an
environmental impact statement ("EIS"), Rodriguez testified that
the Planning Board violated the Township code because it failed
to seek advice from the Township Environmental Commission before
granting the waiver. Rodriguez also testified that to the extent
PSE&G was relying on environmental documentation submitted with
the 2003 GDP, a proper EIS was not completed at that time.
Later colloquy among Planning Board members explained that
every application is sent to the Environmental Commission for
review. On the next hearing date, one Planning Board member, who
also sat on the Environmental Commission, clarified that the
Commission reviewed and reported on the application, but never
received a request for advice from the Planning Board regarding
the waiver.
Sonya Thorpe, an acoustical consultant, reviewed Clark's
report but did not submit a report of her own. Thorpe testified
that Clark's report was deficient and incomplete because it did
not describe the "octave band numbers." However, she later
16 A-1218-15T2
conceded that Clark's report indicated that an octave band analysis
had been performed. When questioned by a Planning Board member,
Thorpe also admitted that Clark conducted a sound test of the
proposed facility that complied with the governing State
regulations.6
On December 17, 2014, the Planning Board voted to approve
PSE&G's application and grant it all necessary variance relief,
including relief from the 200-foot buffer in terms of Lot 11.04.
The Planning Board's seventeen-page resolution summarized all of
the relevant witness testimony and set forth detailed findings of
fact and conclusions of law in support of its decision.7
On February 17, 2015, plaintiffs filed two complaints in lieu
of prerogative writs challenging PSE&G's right to proceed with its
project. In one complaint,8 plaintiffs asserted that Ordinance
15-03 and Ordinance 17-03, which had been adopted almost twelve
6
Another pair of objectors, Gang Qian and Xiaodan Zhang, presented
testimony from Joseph Mazotas, a real estate appraiser. Mazotas
testified that a substation would be visible from the Qian/Zhang
property, and that it would significantly affect their home's
property value (by five or ten percent, or more) and marketability.
However, Mazotas admitted that he had not done any comparability
studies, nor was he familiar with the landscaping plan intended
to cover the project from view. These two objectors are not
parties to the present appeals.
7
We address the Planning Board's decision in greater detail in
Section III of this opinion.
8
Docket No. MID-L-00907-15.
17 A-1218-15T2
years previously, were nevertheless void due to lack of adequate
notice to them; unconstitutionally vague because it was allegedly
not clear that a "substation" was a "public utility facilit[y]"
permitted in the OC zone; and constituted illegal "spot zoning."
As noted above, defendants moved for summary judgment and a
dismissal of plaintiffs' complaint.
On October 13, 2015, the trial judge issued an order,
supported by a detailed written decision, granting defendants'
motions and dismissing plaintiffs' complaint. The judge found
that plaintiffs' complaint in lieu of prerogative writs was
untimely under Rule 4:69-6 because they waited almost twelve years
to file a challenge to the 2003 ordinances. In addition, the
judge considered plaintiffs' challenges to the ordinances and
found that they lacked merit.
In the second complaint they filed on February 17, 2015,9
plaintiffs sought to reverse the Planning Board's approval of
PSE&G's application for variance relief and minor subdivision
approval. Following a two-day hearing on the record developed
before the Planning Board and the parties' oral argument, the
trial judge10 entered a judgment and written decision. The judge
9
Docket No. MID-L-00906-15.
10
The same trial judge presided over both proceedings involved in
these appeals.
18 A-1218-15T2
reversed the Planning Board's grant of a (c)(2) residential buffer
variance to PSE&G. In so ruling, the judge found that PSE&G did
not show that "its plan is a better zoning alternative" for the
property. The judge also stated that "[t]he Board made no findings
as to the reasonableness of not being able to build a gas insulated
switch (GIS) gear facility, nor . . . relative to the
reasonableness of PSE&G's inability to acquire (or [the
University's] unwillingness to sell) additional lands" that would
eliminate the need for the 200-foot residential buffer variance.
Thus, the judge concluded that the Planning Board's grant of the
variance was "not supported by the record."
Because PSE&G would not be able to construct its project as
it was then configured without the residential buffer variance for
Lot 11.04, the trial judge also determined that the Planning
Board's grant of the minor subdivision to PSE&G could not stand.
In all other respects, the judge found that plaintiffs' objections
to the Planning Board's decision lacked merit.
These appeals and cross-appeal followed.
II.
We first address plaintiffs' contention in Docket No. A-1218-
15 that the trial judge erred in granting summary judgment to
defendants and dismissing their challenge to the validity of the
two 2003 ordinances. Plaintiffs contend that although they
19 A-1218-15T2
captioned their pleading as a complaint in lieu of prerogative
writs, their claims were actually cognizable under the Uniform
Declaratory Judgments Law, N.J.S.A. 2A:16-50 to -62, because they
sought a declaration that the ordinances were unconstitutional and
unlawful. Therefore, plaintiffs allege that even though they
waited almost twelve years after the adoption of the ordinances
to file their complaint, they are not subject to the forty-five
day filing deadline for actions in lieu of prerogative writs
established by Rule 4:69-6.
Our review of a ruling on summary judgment is de novo,
applying the same legal standard as the trial court. Nicholas v.
Mynster, 213 N.J. 463, 477-78 (2013). Summary judgment is
appropriate where "the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to
a judgment or order as a matter of law." R. 4:46-2(c).
Applying these principles, we discern no basis for disturbing
the trial judge's decision to dismiss plaintiffs' complaint,
although we reach this conclusion for a slightly different reason
20 A-1218-15T2
than that expressed by the judge.11 Whether plaintiffs' complaint
was an action in lieu of prerogative writs subject to the time
limitations of Rule 4:69-6 or a declaratory judgment action not
subject to a specific statute of limitations, (see Bell v. Township
of Stafford, 110 N.J. 384, 390 (1988)), is not the critical issue
here because, no matter what nomenclature is used to identify
their action, plaintiffs' complaint was properly dismissed under
the doctrines of laches and equitable estoppel.
The doctrine of laches is an equitable defense which may be
interposed even in the absence of a specific statute of
limitations. Lavin v. Bd. of Ed., 90 N.J. 145, 151 (1982). Laches
"precludes relief when there is an 'unexplainable and inexcusable
delay' in exercising a right, which results in prejudice to another
party." Fox v. Millman, 210 N.J. 401, 417 (2012). "The time
constraints of laches, unlike the periods prescribed by the statute
of limitations, are not fixed but are characteristically
flexible." Lavin, supra, 90 N.J. at 151.
The doctrine of laches has been described as:
[N]ot an arbitrary or technical doctrine.
Where it would be practically unjust to give
a remedy, either because the party has, by his
[or her] conduct, done that which might fairly
11
See State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011)
(stating an appellate court is "free to affirm the trial court's
decision on grounds different from those relied upon by the trial
court").
21 A-1218-15T2
be regarded as equivalent to a waiver of it,
or where by his [or her] conduct and neglect
he [or she] has, though perhaps not waiving
that remedy, yet put the other party in a
situation in which it would not be reasonable
to place him [or her] if the remedy were
afterwards to be asserted, in either of these
cases, lapse of time and delay are most
material.
[Id. at 152 (quoting Hall v. Otterson, 52 N.J.
Eq. 522, 535 (Ch. 1894)).]
The length of and reasons for the delay, and changing conditions
of either party, are the most important factors. Ibid. (citing
Pavlicka v. Pavlicka, 84 N.J. Super. 357, 368-69 (App. Div. 1964)).
"The length of the delay alone or in conjunction with the other
elements may result in laches." Ibid. (citing Obert v. Obert, 12
N.J. Eq. 423, 428-30 (E. & A. 1858)).
Equitable estoppel is a similar doctrine.
Equitable estoppel is the effect of the
voluntary conduct of a party whereby he [or
she] is absolutely precluded, both at law and
in equity, from asserting rights which might
perhaps have otherwise existed, either of
property, of contract, or of remedy, as
against another person, who has in good faith
relied upon such conduct, and has been led
thereby to change his [or her] position for
the worse, and who on his [or her] part
acquires some corresponding right, either of
property, of contract, or of remedy.
[Highway Trailer Co. v. Donna Motor Lines,
Inc., 46 N.J. 442, 449 (1966) (citing Pomeroy
Equity Jurisprudence, § 804 (5th Ed. 1941)).]
22 A-1218-15T2
Here, plaintiffs' complaint was clearly barred by the
doctrines of laches and equitable estoppel. As detailed above,
the Township Clerk provided published notice on March 13, 2003 of
its proposed adoption of Ordinance 15-03 and, on that same date,
sent personal notice to plaintiffs of the proposed adoption of
Ordinance 17-03, together with a copy of the ordinance itself.
Plaintiffs received that personal notice on March 19, 2003. The
Township adopted both ordinances in April 2003.
Between April 2003 and February 2015 when plaintiffs filed
their complaint challenging the ordinances, the University made
significant investments in, and improvements on, the property in
reliance on the ordinances and the lack of a timely challenge to
their validity. Among other things, the University expended nearly
$1 million in applying for and complying with the 2003 GDP
approval; spent $150,000 developing and implementing an Open Space
Initiative/Donation Agreement to Green Acres; donated land by
creating the Mapleton Preserve in the Township; contributed
$300,000 to the rehabilitation of historic structures in the
Mapleton Preserve; subjected residences owned by the University
to deed restrictions for historic preservation; spent $200,000 on
environmental studies; and expended $100,000 on the installation
of a twelve-inch waterline along Ridge Road and an additional
$150,000 for storm water basin piping adjacent to Greenwood Avenue.
23 A-1218-15T2
These are funds which can obviously not be recouped and, just as
significantly, the disposition of the University's property for
other purposes cannot be undone.12
We reject plaintiffs' contention that the trial court was
obligated to allow them to pursue discovery to attempt to contest
these facts, a process that would have only prolonged this
extremely belated litigation and which could have imposed
significant additional burdens on the parties. We also reject
plaintiff's argument that such discovery was necessary to
determine which expenditures related to property on the South
Brunswick side of the project and which was related to the
Plainsboro Township side, a breakdown that would be of no or scant
relevance.
Plaintiffs' failure to challenge the adoption of the
ordinances for almost twelve years is inexcusable under any
reasonable assessment of the idiosyncratic circumstances of this
case, especially in light of the University's obvious detrimental
reliance upon their non-action. On this record, plaintiffs are
barred by the doctrines of laches and equitable estoppel from
prosecuting an action challenging the 2003 ordinances at this late
12
For its part, PSE&G undertook years of planning and also expended
substantial sums in preparing its electrical substation project
on land it ultimately purchased from the University.
24 A-1218-15T2
date. Therefore, the trial judge properly dismissed plaintiffs'
complaint as untimely.
However, even if plaintiffs' complaint were not barred by
these doctrines, we are satisfied that the trial judge also
properly dismissed plaintiffs' allegations concerning the
propriety of the ordinances on their merits.
Plaintiffs argued that Ordinance 17-03 constituted illegal
"spot zoning" in that it "violate[d] equal protection by conveying
privileges to [the University] next door while failing to convey
similar privileges to others," including themselves. In rejecting
this contention, the trial judge found that plaintiffs failed to
provide sufficient proof "that Ordinance 17-03 [wa]s inconsistent
with the Township's Master plan" or "that the rezoning was not
pursuant to a comprehensive plan." We agree with the judge's
cogent analysis.
"Spot zoning is the antithesis of . . . planned zoning."
Palisades Props., Inc. v. Brunetti, 44 N.J. 117, 134 (1965). Our
Supreme Court has defined "spot zoning" as "the use of the zoning
power to benefit particular private interests rather than the
collective interests of the community." Taxpayers Ass'n of
Weymouth Twp. v. Weymouth Township, 80 N.J. 6, 18 (1976), cert.
denied, 430 U.S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977).
Spot zoning transpires "when a municipality seeks to relieve a
25 A-1218-15T2
particular property of the burden imposed by its zoning
classification so as to benefit the lot owner or permit an
incompatible use." Jennings v. Borough of Highlands, 418 N.J.
Super. 405, 425-26 (App. Div. 2011). "[T]he test for spot zoning
is whether the particular provision of the zoning ordinance is
made with the purpose or effect of furthering a comprehensive
scheme or whether it is designed merely to relieve a lot or lots
from the burden of a general regulation." Id. at 426 (alteration
in original) (quoting Palisades, supra, 44 N.J. at 134).
Here, plaintiffs failed to allege that the effect of the
ordinance was inconsistent or incompatible with the Township's
comprehensive zoning plan, as required by Jennings, supra, 418
N.J. Super. at 426. Moreover, the fact that the University was
initially the only landowner in the OC Zone District is simply not
prima facie proof of spot zoning. Palisades, supra, 44 N.J. at
135. Indeed, it is well established that an otherwise valid
ordinance is "unobjectionable even if . . . initially proposed by
private parties [who] are . . . its ultimate beneficiaries."
Taxpayers Ass'n, supra, 80 N.J. at 18. Because nothing in the
record supports a finding that Ordinance 17-03 was inconsistent
with the Township's comprehensive zoning plan, the trial judge
correctly determined that plaintiffs' spot zoning claim lacked
merit.
26 A-1218-15T2
Plaintiffs next argued that the published notices for
Ordinance 15-03 and Ordinance 17-03 were defective because they
did not contain a "brief summary of the main objectives or
provisions of the ordinance." They also asserted that the
personal, mailed notice they admittedly received for Ordinance 17-
03 did not contain "the nature of the matter to be considered" or
"street names, common names or other identifiable landmarks" to
identify the affected zoning district.
The trial judge rejected these contentions. The judge found
that the Township's published notice for Ordinance 15-03 complied
with N.J.S.A. 40:49-2.1(a), which requires "citing such proposed
ordinance by title, giving a brief summary of the main objectives
or provisions" plus a statement that copies are on file for public
examination, and notice of the time and place for further
consideration of the proposal. The judge also found that N.J.S.A.
40:55D-62.1 did not require the Township to send personal notice
of Ordinance 15-03 to plaintiffs because that ordinance "created
a classification that did not previously exist" and "was neither
a change in classification within a district, nor a boundary change
to a district." At the time of its adoption, the newly created
zone "had no impact upon any property owner." As to Ordinance 17-
03, the judge found that the Township's published notice comported
with N.J.S.A. 40:49-2.1(a), and that the personal notice satisfied
27 A-1218-15T2
N.J.S.A. 40:55D-62.1. For the reasons that follow, we agree with
the judge that the notices met the requirements of N.J.S.A. 40:49-
2.1(a) and N.J.S.A. 40:55D-62.1.
At a minimum, municipalities must substantially comply with
statutory published notice requirements. Wolf v. Shrewsbury, 182
N.J. Super. 289, 295 (App. Div. 1981), certif. denied, 89 N.J. 440
(1982). "Failure to substantially comply with the requirements
of a statute requiring publication renders the ordinance invalid."
Ibid. "A notice of a proposed change in the zoning laws must be
reasonably sufficient and adequate to inform the public of the
essence and scope of the proposed changes." Id. at 296.
In support of their contentions, plaintiffs primarily rely
upon our decision in Rockaway Shoprite Assocs. v. City of Linden,
424 N.J. Super. 337 (App. Div. 2011), certif. denied, 209 N.J. 233
(2012), which stressed the importance of N.J.S.A. 40:49-2.1(a)'s
"brief summary" requirement. There, we found that a published
notice regarding rezoning of the former GM Linden Assembly Plant
site was non-compliant with N.J.S.A. 40:49-2.1(a) because it
provided no indication of what new zones were being created, or
what new uses would be permitted on the site. Id. at 343. We
reasoned:
While the published notice at most alerted the
public that some type of zoning amendment was
being considered regarding the GM site,
28 A-1218-15T2
nothing therein informed interested persons of
the nature or extent of the change or whether
it was consequential enough to warrant their
attendance at, and participation in, the
ensuing public hearing.
[Id. at 349-50.]
Thus, we held that "New Jersey requires at a minimum that published
notice of a zoning ordinance creating new zones and uses applicable
to an area identify and briefly describe those new zones and uses."
Id. at 346.
The published notice for Ordinance 15-03 contains a one-
sentence "brief summary" which states: "This ordinance amends and
supplements Chapter 175 of the South Brunswick Code by the addition
of Section 175-93, Office/Corporate District." The notice further
provides the ordinance's full title, gives the time and place of
the upcoming public meeting, and explains that copies of the
ordinance can be obtained without charge.
While the summary is brief, and does not list any of the
permitted uses within the newly-created OC Zone District, it
nevertheless adequately conveys the ordinance's main objective as
required by N.J.S.A. 40:49-2.1(a), i.e., the "addition of an
Office/Corporate District." Unlike in Rockaway, where the
ordinance rezoned a large, existing property, Ordinance 15-03
created a new zoning district not yet applicable to any area.
Under these unique circumstances, we are satisfied that the 2003
29 A-1218-15T2
published notice was "reasonably sufficient," as it bore no effect
upon plaintiffs' property, or any other property. Wolf, supra,
182 N.J. Super. at 296.
In addition, copies of the ordinance were available for
review, and interested parties could have attended the public
meeting to learn more. Finally, personal notice was not required
in connection with Ordinance 15-03 because N.J.S.A. 40:55D-62.1
applies only "to two events—classification changes and boundary
changes." Mahwah Realty Assocs. v. Township of Mahwah, 430 N.J.
Super. 247, 257 (App Div. 2013). Ordinance 15-03 effectuated
neither a classification change nor a boundary change.
Turning to the required notice for Ordinance 17-03, both
N.J.S.A. 40:49-2.1(a) and N.J.S.A. 40:55D-62.1 are applicable.
The published notice's "brief summary" for this ordinance
provided: "This ordinance amends the zoning map of the Township
of South Brunswick by re-zoning certain property along southbound
Route 1 from OR, R-1 and R-4 to OC." It also stated the ordinance's
title, the time and location for the upcoming public meeting, and
advised that copies of the ordinance were available free of charge.
Thus, the Township's published notice substantially complied
with the requirements of N.J.S.A. 40:49-2.1(a). It was clear from
the notice that the ordinance's main objective was the rezoning
of property to an OC classification. Therefore, the published
30 A-1218-15T2
notice was "sufficient to alert a reasonably intelligent reader
as to the nature and import of the . . . changes in the zone plan."
Wolf, supra, 182 N.J. Super. at 296.
The Township also duly provided personal notice of the
ordinance to plaintiffs, and this notice included a copy of the
ordinance and the proposed zoning map identifying the exact
location of the property to be re-zoned. Thus, the personal notice
substantially complied with N.J.S.A. 40:55D-62.1 by providing the
nature of the matter to be considered, street names, and
identifiable landmarks in order to identify the affected zoning
district. Therefore, the trial judge committed no error when he
held that the Township substantially complied with the statutory
notice requirements for both ordinances.
Finally, like the trial judge, we also reject plaintiffs'
contention that the term "public utility facilities" in Ordinance
15-03 was unconstitutionally vague and, therefore, they and other
members of the public would not have been able to determine that
an electrical substation might be built in the OC zone.
"The established rules of statutory construction govern the
interpretation of a municipal ordinance." Township of Pennsauken
v. Schad, 160 N.J. 156, 170 (1999). On appeal, we review a trial
judge's statutory interpretation de novo." Commerce Bancorp, Inc.
v. InterArch, Inc., 417 N.J. Super. 329, 334 (App. Div. 2010)
31 A-1218-15T2
(citing State v. Gandhi, 201 N.J. 161, 176 (2010)), certif. denied,
205 N.J. 519 (2011).
"Our analysis of a statute begins with its plain language,
giving the words their ordinary meaning and significance." In re
Estate of Fisher, 443 N.J. Super. 180, 190 (App. Div. 2015) (citing
State v. Olivero, 221 N.J. 632, 639 (2015)), certif. denied, 224
N.J. 528 (2016). "It is a basic rule of statutory construction
to ascribe to plain language its ordinary meaning. When that
language 'clearly reveals the meaning of the statute, the court's
sole function is to enforce the statute in accordance with those
terms.'" Ibid. (citations omitted).
As noted above, Ordinance 15-03 specifically states that
"public utility facilities" are one of the uses permitted in the
OC zone. In N.J.S.A. 40:55D-6, the MLUL defines a "public utility"
as "any public utility regulated by the" Board of Public Utilities
("BPU"). Here, the proposed substation facility will be owned and
maintained by PSE&G, which is the State's largest regulated public
utility and, as such, is subject to the BPU's jurisdiction and
regulation. See In re Pub. Serv. Elec. & Gas Co.'s Rate
Unbundling, 167 N.J. 377, 382 (2001) (noting that PSE&G is one of
the State's "existing four [electric utility monopolies]"
regulated by the BPU).
Thus, the "public utility" in the term "public utility
32 A-1218-15T2
facilities" referenced in Ordinance 15-03 obviously includes
PSE&G. Just as obviously, the remaining word in that term,
"facilities" would include an electrical substation operated by
the public utility. In this regard, the ordinary definition of a
"facility" is "something (such as a building or large piece of
equipment) that is built for a specific purpose." Merriam-Webster
Online Dictionary, http://www.merriam-webster.com (last visited
May 12, 2017) (emphasis added). A "substation" is generally
defined as "a place where the strength of electricity is changed
as the electricity passes through on its way from the power plant
to homes and businesses." Ibid. The fact that PSE&G's substation
includes both a building and equipment clearly brings it within
the common definition of "facility" as used in Ordinance 15-03.
We need not address hypothetical scenarios not present in this
case testing the breadth of the term.
Moreover, Joseph Barton, who served as PSE&G's expert
consultant, testified that a substation is a critical component
of a public utility's electrical transmission system. Without it,
the other components of an electrical system, such as conduits,
cables, wires, towers, and poles, referenced in other statutes
33 A-1218-15T2
describing public utility facilities,13 would be useless. Thus,
contrary to plaintiffs' contention, the plain language of
Ordinance 15-03 creating the OC Office/Corporate District provided
clear and explicit notice that "public utility facilities" were
permitted in the newly created OC zone.
In sum, we affirm the trial judge's October 13, 2015 order
granting defendants' motion for summary judgment and dismissing
plaintiffs' complaint challenging the Township's adoption of
Ordinance 15-03 and Ordinance 17-03.
III.
We now turn to PSE&G's contentions in its appeal in Docket
No. A-3014-15. PSE&G argues that the Planning Board's decision
to grant the residential buffer variance was not arbitrary,
capricious, or unreasonable, and that the trial judge mistakenly
failed to defer to the Planning Board's findings of fact and
conclusions of law, which were supported by substantial credible
13
See, e.g., N.J.S.A. 40:11A-7.1 (defining "public utility
facility" to include "any tracks, pipes, mains, conduits, cables,
wires, towers, poles and other equipment and appliances . . . of
any public utility"). That definition is repeated within other
chapters of Title 40, and in other Titles. See N.J.S.A. 40:14A-
20, N.J.S.A. 40:37D-7, N.J.S.A. 40:68A-54 (utilizing same
definition). See also N.J.S.A. 58:22-14, N.J.S.A. 52:27I-36,
N.J.S.A. 52:9Q-22, N.J.S.A. 40A:12A-10, N.J.S.A. 40A:26A-8,
N.J.S.A. 40A:31-8, N.J.S.A. 34:1B-8, N.J.S.A. 27:23-6, N.J.S.A.
58:1B-8, N.J.S.A. 12:11A-7, and N.J.S.A. 5:10-8 (also utilizing
same definition).
34 A-1218-15T2
evidence in the record. We agree.
"[W]hen reviewing the decision of a trial court that has
reviewed municipal action, we are bound by the same standards as
was the trial court." Fallone Props., L.L.C. v. Bethlehem Twp.
Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). Thus, our
review of the Board's action is limited. See Bressman v. Gash,
131 N.J. 517, 529 (1993) (holding that appellate courts are bound
by the same scope of review as the Law Division and should defer
to the local land-use agency's broad discretion).
In reviewing a municipal zoning board's decision, courts must
be mindful that the Legislature vested these boards with the
discretion to make decisions that reflect the character and level
of development within their municipality. Booth v. Bd. of
Adjustment of Rockaway, 50 N.J. 302, 306 (1967). A planning
board's discretionary decisions carry a rebuttable presumption of
validity. Harvard Enters., Inc. v. Bd. of Adjustment of Madison,
56 N.J. 362, 368 (1970).
It is well-established that "a decision of a zoning board may
be set aside only when it is 'arbitrary, capricious or
unreasonable.'" Cell South of N.J., Inc. v. Zoning Bd. of
Adjustment of W. Windsor, 172 N.J. 75, 81 (2002) (quoting Medici
v. BPR Co., 107 N.J. 1, 15 (1987)). "[P]ublic bodies, because of
their peculiar knowledge of local conditions, must be allowed wide
35 A-1218-15T2
latitude in their delegated discretion." Jock v. Zoning Bd. of
Adjustment of Wall, 184 N.J. 562, 597 (2005). Therefore, "[t]he
proper scope of judicial review is not to suggest a decision that
may be better than the one made by the board, but to determine
whether the board could reasonably have reached its decision on
the record." Ibid.
The burden is on the challenging party to overcome this
highly deferential standard of review. Smart SMR of N.Y., Inc.
v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327
(1998). A court must not substitute its own judgment for that of
the local board unless there is a clear abuse of discretion. See
Cell South, supra, 172 N.J. at 82. As we stated in CBS Outdoor,
Inc. v. Borough of Lebanon Planning Bd., 414 N.J. Super. 563, 577
(App. Div. 2010), "[e]ven were we to harbor reservations as to the
good judgment of a local land use agency's decision, 'there can
be no judicial declaration of invalidity in the absence of clear
abuse of discretion by the public agencies involved.'" (quoting
Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296-97 (1965).
N.J.S.A. 40:55D-70 authorizes local zoning and planning
boards to grant variances from zoning ordinances. N.J.S.A. 40:55D-
70(c) defines two categories of variances: N.J.S.A. 40:55D-
70(c)(1), known as the "hardship variance," and N.J.S.A. 40:55D-
70(c)(2), known as the "flexible or bulk variance." PSE&G sought
36 A-1218-15T2
a (c)(2) variance from the 200-foot residential buffer
requirement.
The Supreme Court succinctly described the test for granting
a (c)(2) variance as follows:
N.J.S.A. 40:55D-70(c)(2) permits a
variance for specific property, if the
deviation from bulk or dimensional provisions
of a zoning ordinance would advance the
purposes of the zoning plan and if the benefit
derived from the deviation would substantially
outweigh any detriment. The applicant bears
the burden of proving both the positive and
negative criteria.
[Ten Stary Dom P'ship v. Mauro, 216 N.J. 16,
30 (2013).]
Satisfaction of the positive criteria requires "proof that
the characteristics of the property present an opportunity to put
[it] more in conformity with the development plans and advance the
purposes of zoning." Ibid. The purposes of zoning include
promoting "public health and safety" and a "desirable visual
environment"; providing "adequate light, air and open space";
securing "safety from fire, flood, [and] panic"; and providing
"sufficient space in appropriate locations for a variety of
. . . uses . . . in order to meet the needs of all New Jersey
citizens." N.J.S.A. 40:55D-2. As to the negative criteria, the
applicant must prove "that the variance would not result in
substantial detriment to the public good or substantially impair
37 A-1218-15T2
the purpose of the zone plan." Ten Stary Dom, supra, 216 N.J. at
30.
Significantly, under this "more flexible test," an applicant
for a (c)(2) variance need not demonstrate hardship. Price v.
Himeji, LLC, 214 N.J. 263, 297 (2013) (citing Lang v. Zoning Bd.
of Adjustment, 160 N.J. 41, 57 (1999)); Jacoby v. Zoning Bd. of
Adjustment, 442 N.J. Super. 450, 470 (App. Div. 2015). In
addition, "the magnitude of the deviation from the
. . . dimensional requirements of the zoning ordinance and the
impact on the zoning plan are often a matter of degree" and, as
such, "a board's consideration of a variance should recognize that
fact." Ten Stary Dom, supra, 216 N.J. at 32.
As our Supreme Court explained almost twenty-nine years ago:
By definition . . . no (c)(2) variance
should be granted when merely the purposes of
the owner will be advanced. The grant of
approval must actually benefit the community
in that it represents a better zoning
alternative for the property. The focus of a
(c)(2) case, then, will not be on the
characteristics of the land that, in light of
current zoning requirements, create a
"hardship" on the owner warranting a
relaxation of standards, but on the
characteristics of the land that present an
opportunity for improved zoning and planning
that will benefit the community.
[Kaufmann v. Planning Bd. for Twp. of Warren,
110 N.J. 551, 563 (1988) (emphasis added).]
In short, the granting of a "(c)(2) variance will stand if,
38 A-1218-15T2
after adequate proofs are presented, the Board concludes that the
'harms, if any, are substantially outweighed by the benefits.'"
Jacoby, supra, 442 N.J. Super. at 471 (quoting Kaufmann, supra,
110 N.J. at 565).
Applying these standards, we are constrained to conclude that
the trial judge mistakenly overrode the Planning Board's decision
to grant a variance of the 200-foot residential buffer to PSE&G
so that it could construct an electrical substation on its
property. The evidence adduced during the Planning Board's four-
day hearing overwhelmingly supported its decision to permit a
variance that affected only one property, Lot 11.04, whose owner
raised no objection to the application. The record also plainly
demonstrated that the grant of this decidedly minor variation in
the overall zoning scheme would enable PSE&G to comply with PJM
and FERC requirements and ensure that thousands of property owners
in the area, including plaintiffs, were supplied with safe and
efficient electrical power in the face of growing energy demands
in the region. Under these circumstances, the Planning Board's
decision clearly represented a "better zoning alternative for the
property" and, therefore, the Planning Board's decision should
have been affirmed.
The trial judge's conclusion that the planning board did not
provide an adequate explanation of its decision is not supported
39 A-1218-15T2
by our review of that decision. The Planning Board specifically
found that "the proposed use [of the land] [wa]s a permitted use"
that "promotes the safe and efficient flow of electricity to the
community-at-large" by increasing power reliability and adding new
capacity for up to 25,000 future customers. It further found that
"the existing network structure . . . is close to capacity" and
"if the proposed substation is not built within a short period of
time, it is reasonably foreseeable that brown outs are at greater
risk to occur in the area." As detailed in Section I of this
opinion, these findings are firmly grounded in the record.
As to the location chosen for PSE&G's project, the Planning
Board found that the undeveloped property, located in an OC zone,
was "an excellent location for the substation" in order "to link
. . . two . . . other substations located to the north and south
of the site" and was "adjacent to existing PSE&G property that
[would] facilitate the construction of the underground outlets
required."
The Planning Board found that Lot 11.04 was the only one
affected by the (c)(2) variance. While acknowledging the
"significant amount of testimony presented by objectors . . . that
the site was not suitable for the use because it require[d] a
[residential buffer] variance," the Planning Board found that Lot
11.04, whose owner has not objected to a variance that affects
40 A-1218-15T2
only his property, was "a long and narrow lot" and that its
"structures . . . [were] in the northern most portion of the lot,
furthest away from the site and well beyond the [200-foot] buffer."
Regarding the potential negative impact on surrounding
residential properties, the Planning Board found that "Lot 11.14,
a Township-owned dedicated open space lot, runs between [PSE&G's]
property and Lot 11.04" and "buffers the negative impact the
substation will have" upon that lot. The Planning Board also
concluded that any negative visual impact from the substation
would be minimized because much of the equipment would be
underground, and "significant landscaping" provided by PSE&G would
further "buffer and practically shield the [thirteen-foot control]
building from the adjacent residential properties."
The Planning Board carefully balanced concerns that the
substation might affect residential property values with the
project's potential to advance the zoning plan. The Planning
Board stated:
As to [Mazotas's] valuation testimony, the
proposed use is a permitted use so the
testimony was arguably not relevant.
Furthermore, the testimony provided was not
well researched and was not based on any
meaningful data. The Board provides little
weight to this testimony especially in light
of the fact that the GDP for this area allows
for a significant amount of commercial
development. The Board finds that the expert
testimony on valuation failed to distinguish
41 A-1218-15T2
the impact the substation would have on the
value of the residential properties in the
area as compared to the impact of more than
. . . 1,800,000 square feet of commercial
space would have on the value of the nearby
residential properties. Thus, the Board finds
credible the testimony of [PSE&G's] planner
that the detrimental impact the substation
will have on the public good and the intent
and purpose of the Master Plan and Zone Plan
will be minimal.
Concerning noise levels, the Planning Board determined that
noise on the site "will not exceed state or local noise standards."
It accepted Clark's testimony as credible, and found Thorpe's
testimony less credible because she "failed to state that the
manner and methods used by [Clark] deviated from acceptable
standards in the industry." Clark testified that he performed
various simulation tests and concluded that it would be "difficult
to hear the substation at points offsite" given the ambient noise
level in the area. Although Thorpe criticized Clark's methodology
and conclusions, she did not complete a study of her own and
admitted that Clark's study complied with applicable testing
requirements.
The record also does not support the trial judge's finding
that the Planning Board did not adequately address Light's
testimony concerning the possibility that PSE&G could use GIS
technology to reduce the overall size of the project and thereby
lessen or eliminate the need for it to deviate from the 200-foot
42 A-1218-15T2
buffer for Lot 11.04. In making this finding, the judge only
focused on Light's testimony that implementing GIS technology at
a cost of an additional $8 million to ratepayers might reduce the
size of one component of the project. However, the judge did not
consider Light's clarifying testimony that in terms of reducing
"the overall size of the station[,]" GIS technology "doesn't really
help you[.]"
Finally, the judge found that the Planning Board did not make
any findings as to the reasonableness of PSE&G's asserted inability
to acquire additional lands from the University that would have
enabled PSEG to construct the substation while preserving the 200-
foot buffer. Thus, the judge concluded that any "hardship"
suffered by PSE&G was "a self-created one."
We disagree with the trial judge's assessment. First, because
this was an application for a (c)(2) variance, PSE&G was not
required to establish a hardship in order to justify its need for
the residential buffer variance. Price, supra, 214 N.J. at 297.
As we recently noted in Jacoby, "[a] (c)(2) variance contemplates
that even absent proof of a hardship, a bulk or dimensional
variance that advances the purposes of the MLUL may be granted if
the benefits of the deviation outweigh the detriment." Supra, 442
N.J. Super. at 470. As discussed above, that is clearly the case
here.
43 A-1218-15T2
Contrary to the trial judge's finding, any hardship upon
PSE&G as the result of the University's refusal to sell it
additional land was obviously not a "self-imposed" one. The
University and PSE&G are clearly separate entities and the
University was under no obligation to sell PSE&G any more property
than it chose to convey. Finally on this point, PSE&G's
acquisition of additional land from the University in the manner
suggested by plaintiffs as a means of keeping the project within
the buffer in terms of Lot 11.04 would appear to move the
substation closer to plaintiffs' property.
In sum, the Planning Board properly concluded on the record
before it that "the benefits in granting the variance
. . . substantially outweigh[ed] the detriments" and that the
variance could "be granted without causing substantial detriment
to the public good." Because the Planning Board's determination
to grant the residential buffer variance was well-supported by
substantial credible evidence in the record and was neither
arbitrary, capricious, or unreasonable, the trial judge erred by
substituting his judgment for that of the Planning Board.
Therefore, we reverse the judge's determination and reinstate the
Planning Board's approval of PSE&G's application for a residential
buffer variance.
44 A-1218-15T2
IV.
The trial judge also reversed the Planning Board's decision
granting PSE&G's request for minor subdivision approval. In
explaining this aspect of his decision, the judge stated:
Because the geometry of the proposed
subdivision is at the core of the variance
request, it is incumbent upon this court to
also reverse the decision of the Board
granting PSE&G's application for subdivision.
To allow the subdivision grant to stand
without an approved site plan upon which it
is based is contradictory to common sense.
As a result, the judge declined to decide whether the Planning
Board's grant of the subdivision variance for lack of street
frontage was reasonable and, solely on that basis, he reversed the
Planning Board's decision.
In light of our decision that the Planning Board's approval
of the residential buffer variance was appropriate and must be
reinstated, the trial judge may now address plaintiffs' challenge
to the minor subdivision approval. Therefore, we reverse the
judge's denial of the Planning Board's approval of PSE&G's
subdivision application and remand so that the judge may promptly
consider the matter. We further direct that the remand proceedings
be completed within ninety days. Any party or parties aggrieved
by the court's ruling on the issue may file a timely new appeal
with this court under a new docket number.
45 A-1218-15T2
V.
Finally, we briefly address the arguments raised by
plaintiffs in their cross-appeal in Docket No. A-3014-15.
Plaintiffs contend that: (1) an electrical substation is not a
permitted use under the University's GDP; (2) the Planning Board
"illegally waived" the required EIS; (3) the Planning Board
"approved the site plan without the acoustic testing required by
local and state law"; and (4) the Planning Board's findings "were
not substantiated" or "adequately supported by the record or are
contrary to the record."14
We have reviewed plaintiffs' contentions on these points in
light of the record and the applicable law and conclude that they
are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). Nevertheless, we provide the
following comments.
Contrary to plaintiffs' assertion, the installation of an
electrical substation was clearly consistent with the University's
GDP. As the Planning Board noted in its decision approving PSE&G's
variance application, the resolution approving the GDP plainly
"states that the approval is for '1,800,000 [square feet] of office
14
Plaintiffs also contend that the term "public utility
facilities" does not apply to electrical substations. As discussed
in Section II above, this contention lacks merit and, therefore,
we need not address it further here.
46 A-1218-15T2
corporate space and other uses permitted in the OC zone.'" As
noted above, "public utility facilities," like the substation at
issue here, are expressly permitted in the OC zone under Ordinance
15-03. Therefore, we reject plaintiffs' contention on this point.
Plaintiffs' argument that the Planning Board "illegally
waived" the requirement that an EIS be submitted ignores several
key facts. First, the GDP between the University and the Township,
which was approved by the Planning Board, "stated that an [EIS]
would not have to be submitted for development of any portion of
the property contained within the GDP." Thus, the Planning Board
properly determined that it was not necessary for PSE&G to submit
an EIS.
In addition, the Planning Board found, based upon the colloquy
between its members on this issue, that the Township's
"Environmental Commission reviewed the application and did not
request that the applicant submit an" EIS. Moreover, to the extent
that an EIS might be required, the Planning Board granted PSE&G's
request for a waiver of this requirement as it was permitted to
do under the governing ordinance. Under these circumstances, we
discern no basis for disturbing the trial judge's determination
that plaintiffs' argument on this issue lacked merit.
Plaintiffs next argue that the trial judge incorrectly
rejected their contention that the acoustic testing performed by
47 A-1218-15T2
Clark, who was PSE&G's expert, was flawed. We disagree.
The Planning Board made the following findings with regard
to Clark's testimony and the testimony of plaintiffs' expert,
Thorpe:
The applicant presented expert testimony
regarding the noise that will be generated
from the facility. The testimony presented
[from Clark] was that based on the studies
performed, the site will not exceed state or
local noise standards . . . . As to the issue
of acoustics/noise, expert testimony [from
Thorpe] was provided in opposition to the
application. [Thorpe] testified that she
would have performed the noise study in a
different manner . . . . In her opinion, her
suggested method would have been more thorough
than the method used by [Clark]. However,
[Thorpe] failed to state that the manner and
methods used by [Clark] deviated from
acceptable standards in the industry as to how
acoustical/noise studies are to be performed.
Thus [Thorpe] testified to a preference as to
how the applicant's noise study could have
been performed rather than raising genuine
irregularities or deviations from accepted
standards in how the study was performed.
The Planning Board considered the potential negative impact
on "the quality of life mainly due to noise generated from the
substation," but concluded that "[t]he detrimental impacts are
limited to those property owners immediately adjacent to the
project site and are mitigated through many factors" including
"the significant landscape buffer." Moreover, as a condition of
its approval, the Planning Board required PSE&G, "within six months
48 A-1218-15T2
of the substation operating . . . [to] perform [an]
acoustical/noise test to insure the substation generates noise
that does not exceed State or local standards."
The trial judge affirmed the Planning Board's determination,
noting that while Thorpe criticized certain aspects of Clark's
report, she conceded that Clark's study complied with State and
local regulations, and that she did not perform her own study.
The judge's decision on this point is well supported by the record
and, therefore, there is no basis for overturning it.
Finally, plaintiffs argue generally that the Planning Board's
decision was not adequately supported by the record. However, as
discussed in detail in Section III of this opinion, this is clearly
not the case.15
VI.
In sum, we affirm the October 13, 2015 order dismissing
plaintiffs' challenge to Ordinance 15-03 and Ordinance 17-03. We
reverse the portion of the February 10, 2016 order that overturned
the Planning Board's approval of PSE&G's residential buffer
variance, and we reinstate the Planning Board's approval of that
15
For completeness purposes, we note that any issues raised by
plaintiffs in their appeal in Docket No. A-1218-15 and their cross-
appeal in Docket No. A-3014-15 that are not specifically addressed
in this opinion lack sufficient merit to warrant discussion. R.
2:11-3(e)(1)(E).
49 A-1218-15T2
application. We also reverse the trial court's denial of the
minor subdivision approval PSE&G received from the Planning Board,
and remand to the trial court for consideration of that issue
consistent with this opinion. These remand proceedings must be
completed within ninety days. In all other respects, the February
10, 2016 order is affirmed.
Affirmed in part; reversed in part; and remanded. We do not
retain jurisdiction.
50 A-1218-15T2