NOT FOR PUBLICATION WITHOUT THE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-2487-16T2
LOUIS BADUINI and
JOEL SCHNETZER,
Plaintiffs-Appellants,
v.
LAND USE BOARD OF INDEPENDENCE
TOWNSHIP, ROE'S ISLAND, LLC and
AMY S. GREENE ENVIRONMENTAL
CONSULTANTS, INC.,
Defendants-Respondents.
____________________________________
Argued May 15, 2018 – Decided July 31, 2018
Before Judges Fasciale, Sumners and Natali.
On appeal from Superior Court of New Jersey,
Law Division, Warren County, Docket No.
L-0334-15.
Lawrence P. Cohen argued the cause for
appellants (Lavery, Selvaggi, Abromitis &
Cohen, PC, attorneys; Lawrence P. Cohen, of
counsel and on the briefs; William H. Pandos,
on the briefs).
Thomas J. Trautner, Jr., argued the cause for
respondents Roe's Island, LLC and Amy S.
Greene Environmental Consultants, Inc.
(Chiesa, Shahinian & Giantomasi, PC,
attorneys; Thomas J. Trautner, Jr. and Lauren
R. Tardanico, on the brief).
Eric M. Bernstein argued the cause for
respondent Land Use Board of Independence
Township (Eric M. Bernstein & Associates, LLC,
attorneys, joins in the brief of respondents
Roe's Island, LLC and Amy S. Green
Environmental Consultants, Inc.).
PER CURIAM
Plaintiffs Louis Baduini and Joel Schnetzer appeal from a Law
Division order dismissing their action in lieu of prerogative
writs to invalidate the decision by Independence Township Land Use
Board (Board) that the wetlands mitigation project (the project)
proposed by defendants Roes Island, LLC, and Amy S. Greene
Environmental Consultants, Inc. (Amy S. Greene) (collectively
defendants) is permitted in an agricultural residential zone (AR
zone). We affirm.
Roes Island is the owner of an eighteen-acre tract of land
(the property) located in Independence Township that is part of a
larger parcel of approximately fifty-one acres, of which parts are
located in Liberty Township. Amy S. Greene, a member and affiliate
of Roes Island, is an environmental consulting firm with an
expertise in wetlands restoration and enhancement.
Public Service Electric & Gas Company (PSE&G), seeking to
fulfill to its state-mandated obligations to undergo wetlands
mitigation to create or enhance existing wetlands as compensation
2 A-2487-16T2
for its disturbance of wetlands in the other areas of the state,
entered into an agreement with Roes Island to perform wetlands
mitigation responsibilities on behalf of PSE&G at the property.
At one time, the property may have been considered wetlands, but
it had been drained and converted for agricultural use some time
ago. Under the project, wetlands would be restored by plowing;
planting trees in close proximity to existing streams and ditches;
allowing a return to its natural state of forested wetlands with
permanent stabilization of the area with native grasses,
wildflowers, trees and shrubs; installation of a temporary deer
exclusion fence to protect plants; the maintenance of bee hives
for the commercial sale of honey; and the filling of secondary
ditches on the property. A portion of the property is permanently
conserved through a deed restriction, and there will be no
permanent structures built thereon.
Based upon the advice of the Independence Township Land Use
Officer, Amy S. Greene submitted an application on behalf of Roes
Island to the Board seeking an interpretation of the township's
land use ordinance Section 255-98 (the ordinance): to determine
if the project was within ordinance's definition of "customary
agricultural and horticultural uses" in an AR zone. The ordinance
prescribes the following principle uses in an AR zone:
(1) One-family dwellings.
3 A-2487-16T2
(2) Customary agricultural and horticultural
uses, including farms, greenhouses and
nurseries, and including such shelter as may
be required for seasonal farm labor.
Customary agricultural and horticultural uses
shall include the raising, hauling or sale of
feed or bedding customarily used in a farming
operation and the retail sale of farm
products.
(3) Soil processing and soil removal, provided
that the provisions of the Earth Removal
Ordinance of the Township of Independence[] are
complied with.
[Independence Twp., N.J., Land Dev. Ordinance
§255-98(A) (1979).]
In the alternative, the application sought a use variance for the
project.
During the course of four diverse hearing dates over a five-
month period, defendants provided detailed testimony – regarding
the scope and benefits of the project – by Amy S. Greene's
principal, a wetlands scientist; a professional planner; an expert
in the field of wetlands science, wetland hydrology, botany, and
forestry; a licensed civil engineer; and a wildlife biology expert.
At the Board's request, the Warren County Mosquito Commission
Superintendent testified regarding the commission's thoughts
concerning the best methods for the way the project can reduce
mosquitoes. In addition, Schnetzer, a self-proclaimed potential
4 A-2487-16T2
landowner in Independence Township, appeared before the Board.1
He objected to the application; commenting on his belief that
farmland would be lost due to a deed restriction on the property,
and questioning defendants' witnesses about how the project was
akin to agriculture and how the project would be monitored.
After all witnesses testified, the Board went into executive
session upon the advice of its attorney, to discuss potential
litigation and attorney-client privilege under the Open Public
Meetings Act (OPMA), N.J.S.A. 10:4-12(b). Upon return to public
session, the Board determined that the project constituted an
agricultural use as set forth in the ordinance. The Board Chairman
further noted that wetland mitigation or wetland enhancement would
not in and of itself be considered "agriculture" in order to
support a favorable interpretation for the project but as an
element of other agricultural uses proposed as part of the overall
use of the property; therefore, the enhancement of wetlands and
any associated mitigation is permitted. Other "use" and "accessory
use" are defined in Section 255-3 as:
USE: The specific purpose for which a parcel
of land or a building or a portion of a
building is designed, arranged, intended,
occupied or maintained.
1
No parties addressed his standing to file suit, so we do not as
well.
5 A-2487-16T2
USE, ACCESSORY: A use which is customarily
associated with and subordinate to the
principal use of a lot or building and which
is located on the same lot therewith.
The Board approved a resolution, which memorialized its
interpretation of the ordinance approving the project.
Plaintiffs filed an action in lieu of prerogative writs to
rescind the Board's action. The Law Division judge disagreed and
entered an order dismissing the action with prejudice. In his
eighteen-page statement of reasons in which he detailed the
project's scope, the witnesses' testimony, the applicable law, and
the Board's decision, the judge determined that - even though it
may not fit in the narrow categories of "traditional" agricultural
use - defendants' project was permitted in the AR zone because its
uses were agricultural in nature and consistent with the intent
of the ordinance. The judge held that the "enumerated agricultural
activities in the ordinance are not meant to represent an
exhaustive list, but are meant to illustrate as evidence of the
phrase 'included but not limited to.'" The judge reasoned that
"wetlands are a condition of the property and not an independent
use of land for which a property owner would need approvals."
Thus, he found that the project's plan, which includes soil
conservation, forest management and beekeeping, is agricultural
in nature.
6 A-2487-16T2
In their appeal brief, plaintiffs argue:
POINT I
THE TRIAL COURT ERRED BY FAILING TO CONSIDER
WHETHER THE INDEPENDENCE TOWNSHIP LAND USE
BOARD'S DECISION WAS NULL AND VOID BEFORE
CONSIDERING THE SUBSTANTIVE BASIS OF THE
BOARD'S DECISION.
POINT II
THE TRIAL COURT ERRED BY FAILING TO CONSIDER
WHETHER THE LAND USE BOARD VIOLATED THE OPEN
PUBLIC MEETINGS ACT.
POINT III
THE TRIAL COURT LACKED SUBJECT-MATTER
JURISDICTION TO CONSIDER THE SUBSTANTIVE BASIS
OF THE INDEPENDENCE TOWNSHIP LAND USE BOARD'S
DECISION BECAUSE THE BOARD ACTED IN VIOLATION
OF THE OPEN PUBLIC MEETINGS ACT.
POINT IV
THE TRIAL COURT ERRED BY FAILING TO CONSIDER
AN AMENDED INDEPENDENCE TOWNSHIP ZONING
ORDINANCE WHICH EXPLICITLY EXCLUDES "WETLANDS
REMEDIATION AND/OR MITIGATION" AS A PERMITTED
USE.
POINT V
THE TRIAL COURT ERRED IN DETERMINING THAT
DEFENDANTS' PROPOSED ACTIVITIES ARE PERMITTED
IN THE INDEPENDENCE TOWNSHIP AGRICULTURAL-
RESIDENTIAL ZONE.
In their reply brief, plaintiffs argue:
POINT I
THE PROPOSED USES AS INTERPRETED BY THE LAND
USE BOARD AND THE TRIAL COURT BELOW AS BEING
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CONSISTENT WITH THE PERMITTED USES IN THE ZONE
AS "CUSTOMARY AGRICULTURAL AND HORTICULTURAL
USES" IS INCORRECT.
POINT II
THE ISSUE AS TO WHETHER OR NOT THE PROPOSED
USES BY DEFENDANT [ROES] ISLAND ARE PERMITTED
IN THE INDEPENDENCE TOWNSHIP AR-ZONE IS NOT
MOOTED BY THE DOCTRINE OF PREEMPTION.
POINT III
THE LAND USE BOARD'S VIOLATION OF THE OPEN
PUBLIC MEETINGS ACT WAS NOT CURED BY
"DELIBERATIONS" IN OPEN SESSION.
We first address plaintiffs' argument in Point IV that the
judge erred by failing to consider Independence Township
ordinance, Section 255-3 – amended on December 1, 2015, after
defendants' application was filed on October 31, 2014 – that
explicitly excludes "[w]etlands remediation and/or mitigation"
from the definition of agriculture. Since the project involves
wetlands remediation, plaintiffs contend the amendment requires a
finding that the project was not an agriculture use permitted in
the AR zone and that the Board's decision should be rescinded.
We pass on the merits of this argument because plaintiffs
failed to raise this argument before Judge Pursel entered his
order,2 as we decline to consider arguments raised for the first
2
January 3, 2017.
8 A-2487-16T2
time on appeal that do not "go to the jurisdiction of the trial
court or concern matters of great public interest." Zaman v.
Felton, 219 N.J. 199, 226-27 (2014) (quoting State v. Robinson,
200 N.J. 1, 20 (2009)). Moreover, under N.J.S.A. 40:55D-10.5,3
the "time-of-application" rule, the court must consider the law
in effect when an application to the Board was made. Since Section
255-3 was amended after defendants' interpretation application,
its current iteration should not be considered to determine whether
the project is permissible under the ordinance.
In addition, we find no merit to plaintiffs' argument that
defendants' application for an interpretation does not meet the
statutory definition of an "application for development" under
N.J.S.A. 40:55D-3. Although plaintiffs' application sought an
interpretation of the ordinance, it also requested a use variance
to implement the project in the event the Board determined the
project did not involve uses consistent with the ordinance.
Consequently, the post-application amendments to Section 255-3 do
not invalidate the Board's decision.
3
N.J.S.A. 40:55D-10.5 provides, "[n]otwithstanding any provision
of law to the contrary, those development regulations which are
in effect on the date of submission of an application for
development shall govern the review of that application for
development and any decision made with regard to that application
for development."
9 A-2487-16T2
Next, we next address plaintiffs' arguments in Point II of
their initial brief and Point III of their reply brief that the
Board erred by going into executive session and preventing the
public the right "to be present at all meetings of public bodies,
and to witness in full detail all phases of the deliberation,
policy formulation, and decision making of public bodies,"
N.J.S.A. 10:4-7, and that the court erred in not considering
whether the Board's executive session violated the OPMA. Although
the court did not address plaintiffs' OPMA claim, we will address
the claim under Rule 2:10-5, which provides that "[t]he appellate
court may exercise such original jurisdiction as is necessary to
the complete determination of any matter on review."
We see no merit to the claim. The record reveals that the
Board entered into an executive session upon its attorney correctly
citing N.J.S.A. 10:4-12(b)(7), which provides that a public body
can meet in an executive session to discuss "matters falling within
the attorney-client privilege" and "pending or anticipated
litigation." When the Board came out of its executive session,
it deliberated publicly so the general public was not deprived of
the opportunity to witness the process.
Plaintiffs' remaining arguments essentially challenge the
merits of the court's findings that the project was permissible
under the ordinance. They contend the court failed to explain how
10 A-2487-16T2
defendants' project qualifies as "agricultural activity" since
defendants do not propose to sell, lease or personally use any
plants or other products that may come from the site. Plaintiffs
maintain that defendants' activities, consisting of forest
management, wood cuttings, soil conservation, and beekeeping, do
not constitute as agricultural use. They contend the forest
management plan does not involve the production of any timber or
wood products. They likewise argue that a soil conservation plan
does not qualify as agricultural use unless there are payments,
for instance under a governmental program for soil conservation.
They also contend the wood cuttings were not going to produce any
revenue, but were intended to be used at some time in the future
to establish more forested wetlands. Additionally, they assert
beekeeping is such a minor part of the project that it should not
be considered to justify as a use under the project.
As a threshold matter, when reviewing a trial court's
determination of the validity of an action taken by a land use
board, we are bound by the same standard as the trial court. N.Y.
SMSA, L.P. v. Bd. of Adjustment of Twp. of Weehawken, 370 N.J.
Super. 319, 331 (App. Div. 2004). Thus, we give substantial
deference to findings of fact, Pomerantz Paper Corp. v. New Cmty.
Corp., 207 N.J. 344, 362 (2011), but review de novo those
"interpretation[s] of the law and the legal consequences that flow
11 A-2487-16T2
from established facts," Manalapan Realty, L.P. v. Twp. Comm.,
140 N.J. 366, 378 (1995). A trial court's decision that is based
on its interpretation of the municipality's ordinances, the
interpretation is primarily a legal issue, Wyzykowski v. Rizas,
132 N.J. 509, 518 (1993), which "is not entitled to any special
deference," Mountain Hill, L.L.C. v. Zoning Bd. of Adjustment of
Twp. of Middletown, 403 N.J. Super. 210, 234-35 (App. Div. 2008)
(citation omitted). We have long recognized that "because of
their peculiar knowledge of local conditions," municipal land use
boards "must be allowed wide latitude in their delegated
discretion." Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597
(2005); accord Booth v. Bd. of Adjustment of Rockaway Twp., 50
N.J. 302, 306 (1967).
Mindful of these principles, we see no reason to disturb the
judge's finding that the project is consistent with agricultural
uses and accessory uses, which are allowed in an AR zone under the
ordinance. Thus, we reject plaintiffs' arguments and affirm
substantially for the reasons stated by the judge in his written
statement of reasons issued with his order.
Affirmed.
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