BUILDERS LEAGUE OF SOUTH JERSEY VS. BOROUGH OF HADDONFIELD (L-4632-17, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5588-18

BUILDERS LEAGUE OF
SOUTH JERSEY,

Plaintiff-Respondent,

v.

BOROUGH OF
HADDONFIELD,

Defendant-Appellant.
_______________________

Argued February 1, 2021 – Decided March 3, 2021

Before Judges Rothstadt and Mayer.

On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-4632-17.

Mario A. Iavicoli argued the cause for appellant.

Richard J. Hoff Jr., argued the cause for respondent
(Bisgaier Hoff, LLC, attorneys; Richard J. Hoff Jr. and
Danielle Novak Kinback, on the brief).

Michael G. Sinkevich argued the cause for amici curiae
New Jersey Future, Association of New Jersey
Environmental Commissions, The Watershed Institute,
 and Sustainable Jersey (Lieberman Blecher &
Sinkevich, PC, attorneys; Michael G. Sinkevich, of
counsel and on the brief; C. Michael Gan, on the brief).

PER CURIAM

Defendant Borough of Haddonfield (Haddonfield) appeals from the

following orders: a May 2, 2018 order denying Haddonfield's first motion for

summary judgment or transferring the matter to the New Jersey Department of

Environmental Protection (DEP) in the alternative; a February 8, 2019 order

denying Haddonfield's second motion for summary judgment or transferring the

matter to the DEP; a July 10, 2019 order granting the summary judgment to

plaintiff Builders League of South Jersey (BLSJ) 1 and denying Haddonfield's

cross-motion for reconsideration; and an August 2, 2019 denying Haddonfield's

request for a stay. 2

This appeal involves the BLSJ's challenge to Haddonfield's adoption of

Ordinance § 135-92 (Ordinance), governing stormwater management in the

1
The BLSJ is a trade organization whose members are involved in the
construction of single-family and two- family homes in South Jersey.
2
Haddonfield's notice of appeal listed all four orders. However, its merits brief
addressed only the February 8, 2019 and July 10, 2019 summary judgment
orders. Haddonfield failed to brief issues related to denial of its motions for
reconsideration and a stay. Thus, we deem these issues waived. See Midland
Funding LLC v. Thiel, 446 N.J. Super. 537, 542 n.1 (App. Div. 2016).
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municipality. The BLSJ claimed the Ordinance was invalid because it subjected

new home construction, including single-family and two-family homes, to a

review process contrary to State statutory and regulatory authority. The New

Jersey Future, Association of New Jersey Environmental Commissions, the

Watershed Institute, and Sustainable New Jersey, participating as amici curiae

on appeal, join in Haddonfield's arguments supporting the validity of the

Ordinance. We affirm the February 8, 2019 and July 10, 2019 orders for the

reasons expressed by Judge Deborah Silverman Katz.

The parties are familiar with the fact-findings in Judge Silverman Katz's

written and oral decisions, specifically her forty-three-page, comprehensive

written opinion dated February 8, 2019. We provide some brief background on

various statutory and regulatory provisions governing stormwater management

within the State.

The New Jersey Constitution authorizes the Legislature to regulate land

use. N.J. Const. Art. IV, § 6, ¶ 2. The Legislature delegated its authority to

regulate land use to municipalities under the Municipal Land Use Law (MLUL),

N.J.S.A. 40:55D-1 to -136. Municipalities are required to strictly conform to

the MLUL. See N.J. Shore Builders Ass'n v. Twp. of Jackson, 199 N.J. 449,

452 (2009).

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 The MLUL authorized the DEP to adopt regulations governing municipal

stormwater management plans. N.J.S.A. 40:55D-93 and -99. Each municipality

must adopt a stormwater ordinance in compliance with the DEP's regulations.

N.J.A.C. 7:8-4.1 to -4.6.3

The DEP's stormwater regulations applied to "major developments,"

which were defined as follows:

[A]ny "development" that provides for ultimately
disturbing one or more acres of land or increasing
impervious surface by one-quarter acre or more.
Disturbance for the purpose of this rule is the placement
of impervious surface or exposure and/or movement of
soil or bedrock clearing, cutting, or removing
vegetation. Projects undertaken by any government
agency which otherwise meet the definition of "major
development" but which do not require approval under
the Municipal Land Use Law, N.J.S.A. 40:55D-1 et
seq., are also considered "major development."

[N.J.A.C. 7:8-1.2 (2020).]

A "development" is defined as:

[T]he division of a parcel of land into two or more
parcels, the construction, reconstruction, conversion,
structural alteration, relocation or enlargement of any
building or structure, any mining excavation or landfill,
and any use or change in the use of any building or other

3
The DEP promulgated a Model Municipal Stormwater Control Ordinance
(Model Ordinance) to guide municipalities in enacting local stormwater
management ordinances.

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 structure, or land or extension of use of land, for which
permission is required under the Municipal Land Use
Law, N.J.S.A.-1 et seq.

[Ibid.]
In 1993, the Legislature amended the MLUL by enacting the Site

Improvement Standards Act (Act), N.J.S.A. 40:55D-40.1 to -40.7, to "replace

the 'multiplicity of standards for . . . site improvements' that existed throughout

the State with 'a uniform set of technical site improvement standards for land

development.'" Northgate Condo. Ass'n, Inc. v. Borough of Hillsdale Planning

Bd., 214 N.J. 120, 143 (2013) (citing N.J.S.A. 40:55D-40.2). The Act and

subsequently adopted standards were intended to "reduce housing costs by

facilitating the approval process for new residential developments" and establish

"a uniform set of technical site improvement standards for streets, roads, parking

facilities, sidewalks, drainage structures, and utilities." N.J. State League of

Muns. v. Dep't of Cmty. Affs., 158 N.J. 211, 217-18 (1999).

In accordance with the Act, the New Jersey Department of Community

Affairs implemented regulations, known as the Residential Site Improvement

Standards (RSIS). See N.J.A.C. 5:21-1.1 to -8.1. The RSIS applied to "site

improvements carried out or intended to be carried out or required to be carried

out in connection with any application for residential subdivision, site plan

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approval, or variance before any planning board or zoning board of adjustment

. . . ." N.J.A.C. 5:21-1.5. The standards pertaining to stormwater management

are set forth at N.J.A.C. 5:21-7.1 to -7.9. Like the MLUL and the DEP

regulations, the RSIS only applies to "major developments."

Significantly, "[t]he RSIS governs all residential site improvements in the

State, superseding any contrary requirements that might be found in municipal

ordinances." Northgate Condominium Ass'n, Inc., 214 N.J. at 143-44 (citing

N.J.A.C. 5:21-1.5(a)-(b)). The MLUL expressly provides the RSIS "shall

supersede any site improvement standards incorporated within the development

ordinances of any municipality . . . ." N.J.S.A. 40:55D-40.5.

The DEP's Model Ordinance offers guidance to municipalities adopting

stormwater management ordinances. The Model Ordinance states:

(1) This ordinance shall be applicable to all site plans
and subdivision for the following major developments
that require preliminary or final site plan or subdivision
review:

(a) Non-residential major developments; and

(b) Aspects of residential major developments
that are not pre-empted by the Residential Site
Improvement Standards at N.J.A.C. 5:21.

(2) This ordinance shall also be applicable to all major
developments undertaken by [insert name of
municipality].

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 [(emphasis added).]

In contrast, Haddonfield's Ordinance reads:

(a) This section shall be applicable to all site plans or
subdivisions that require site plan review and the
following:

[1] Nonresidential developments; and

[2] Aspects of residential developments that are
not preempted by the Residential Site
Improvement Standards at N.J.A.C. 5:21.

(b) This section shall also be applicable to all projects
undertaken by the Borough of Haddonfield.

(c) All new homes and commercial buildings requiring
a building permit issued by the Borough of
Haddonfield.

Unlike the Model Ordinance, Haddonfield's Ordinance applied to "all new

homes and commercial buildings" and was not limited to "major developments."

The BLSJ asserted that the Ordinance, contrary to the MLUL and the

RSIS, required stormwater plans be reviewed by a municipal official who "shall

consult the engineer retained by the Borough, the Planning Board and/or Zoning

Board (as appropriate) to determine if all of the checklist requirements have

been satisfied and to determine if the project meets the standards set forth in this

section." Haddonfield's requirements for stormwater review were extensive and

A-5588-18
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included the following information to be reviewed by a "municipal official"

prior to all new home construction: a topographic base map; environmental site

analysis; project description and site plan(s); land use planning and source

control plan; stormwater management facilities map; calculations; and

maintenance and repair plan.

Because the MLUL provides "detached one or two dwelling-unit buildings

shall be exempt from . . . site plan review and approval," N.J.S.A. 40:55D-37(a),

Haddonfield avoided use of the word "site plan review and approval" in the

Ordinance. Absent the Ordinance, a permit to construct a single-family or two-

family home would issue if, after review by the municipal construction official,

the permit applicant complied with the municipal zoning provisions and

applicable construction codes, including a proper drainage plan and elevation to

minimize flooding. See N.J.S.A. 52:27D-130 and -131(a); N.J.A.C. 5:23-

2.15A(b)3.iv. Under the Ordinance, an individual seeking to build a single-

family or two-family home in Haddonfield had to undergo a review by a

municipal engineer, in addition to the construction official, and post a bond for

engineering professional review fees.

The BLSJ argued the Ordinance required submission and examination of

items traditionally associated with site plan review and approval. Therefore, the

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BLSJ asserted the Ordinance was ultra vires Haddonfield's authority and

contrary to the MLUL, the RSIS, and the Model Ordinance.

In December 2017, the BLSJ filed an action in lieu of prerogative writs,

challenging the Ordinance. Shortly after filing its answer, Haddonfield moved

for summary judgment or, in the alternative, a transfer of the matter to the DEP.

The BLSJ opposed the motion. Because the case was in the early stage of the

litigation, Judge Silverman Katz denied Haddonfield's motion without

prejudice, finding "there was a material dispute of fact as to the authority of

[Haddonfield] to enact the Ordinance in its present form." In the event

Haddonfield renewed its motion for summary judgment at the conclusion of

discovery, the judge invited Haddonfield to provide specific legal authority for

transferring the matter to the DEP.

After discovery, Haddonfield renewed its motion for summary judgment.

The BLSJ again filed opposition. After hearing oral argument, Judge Silverman

Katz denied summary judgment in a February 8, 2019 order. The judge set forth

detailed findings of fact and comprehensive conclusions of law in a written

decision attached to the order denying Haddonfield's motion.

Judge Silverman Katz concluded the Ordinance was invalid. She found

the Ordinance, essentially, imposed site plan review for the construction of

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single-family and two-family homes contrary to N.J.S.A. 40:55D-37(a). While

the term "site plan review" was not contained in the Ordinance, the judge held

the "distinction between the type of site plan review prohibited by the MLUL

and the site plan review mandated by the Ordinance" was "a distinction without

a difference." Judge Silverman Katz found "[t]he plain reading [of the

Ordinance] indicates that the site plan review . . . is performed by the Planning

Board, the Zoning Board, or their designees, the very review from which the

MLUL expressly exempts one- and two-unit dwellings." Because the Ordinance

contravened the MLUL exemption for site plan review and approval of single-

family and two-family homes, the judge concluded the Ordinance was

"unreasonable and therefore invalid."

Judge Silverman Katz also rejected Haddonfield's argument it had the

authority to adopt an ordinance imposing stricter requirements than the Model

Ordinance. The judge found the Ordinance invalid because "a municipal

ordinance is nevertheless limited by the enabling legislation, in this case, the

MLUL." She concluded "[t]he MLUL is violated if the RSIS is violated," citing

N.J.A.C. 5:21-1.9(a)4 and Northgate Condominium Association, Inc. v. Borough

4
N.J.A.C. 5:21-1.9(a) of the RSIS provides:

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of Hillsdale Planning Board. The judge explained the RSIS imposes stormwater

management limited to "major developments," N.J.A.C. 5:21-7.1(a), but the

Ordinance compelled all residential developments, including single-family and

two-family homes, to comply with its stormwater management requirements.

Additionally, Judge Silverman Katz rebuffed Haddonfield's contention

that stormwater management within the municipality had to be accomplished

through adoption of an ordinance rather than another mechanism. She found

stormwater discharge could be accomplished by amending Haddonfield's

existing zoning laws. In addition, the judge noted several neighboring

municipalities "adopted stormwater ordinances that comply with the RSIS and

the DEP Model Ordinance." Judge Silverman Katz further concluded "the

common law theories of trespass and nuisance provide[d] yet another alternative

by which [Haddonfield] may regulate stormwater discharge."

Based on the judge's rejection of Haddonfield's motion for summary

judgment, on May 10, 2019, the BLSJ moved for summary judgment.

Where any site improvement is required to meet any
part of these rules pursuant to the requirements of any
ordinance adopted pursuant to N.J.S.A. 40:55D-37, . . .
then any failure of any person to construct such site
improvements in accordance with the requirements of
these rules shall constitute a violation of the Municipal
Land Use Law . . . .
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Haddonfield cross-moved for reconsideration of its motion for summary

judgment. The motions were argued on June 7, 2019. Judge Silverman Katz

granted the BLSJ's motion for summary judgment, denied Haddonfield's cross-

motion for reconsideration, and issued a July 10, 2019 order memorializing her

decisions.

Haddonfield moved to stay the trial court's order pending appeal. In an

August 2, 2019 order and accompanying written decision, Judge Silverman Katz

denied the stay request.

On appeal, Haddonfield argues the judge erred in finding the Ordinance

invalid as contrary to, and inconsistent with, statutory and regulatory laws of

this State. It also contends the judge erred in adjudicating the BLSJ's challenge

to the Ordinance as an action in lieu of prerogative writs in the Superior Court

of New Jersey instead of transferring the matter to the DEP. We disagree with

Haddonfield's arguments for the comprehensive reasons expressed by Judge

Silverman Katz in her February 8, 2019 written decision and June 7, 2019 oral

decision. We add only the following comments.

Our standard of review from a trial court's determination regarding the

validity of a municipal ordinance is well-settled. "[W]hen reviewing the

decision of a trial court that has reviewed municipal action, we are bound by the

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same standards as the trial court." Fallone Props., L.L.C. v. Bethlehem Twp.

Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). While ordinances are

presumed valid and reasonable, "[t]he presumption may be overcome . . . by a

clear showing that the local ordinance is arbitrary and unreasonable." Quick

Chek Food Stores v. Springfield Twp., 83 N.J. 438, 447 (1980) (quoting Hudson

Circle Servicenter, Inc. v. Kearny, 70 N.J. 289, 298-99 (1976)). An ordinance

may also be declared "invalid if in enacting the ordinance the municipality has

not complied with the requirements of [a] statute." Riggs v. Long Beach Twp.,

109 N.J. 601, 611 (1988) (citing Taxpayer Ass'n of Weymouth Twp. v.

Weymouth Twp., 80 N.J. 6, 21 (1976)).

Our Supreme Court has "recognized that one of the purposes for the

enactment of the MLUL was the Legislature's intention to create 'statewide

uniformity of process and practices in the areas of zoning and land use.'"

Northgate Condominium Ass'n, Inc., 214 N.J. at 137 (quoting Rumson Estates,

Inc. v. Mayor & Council of Fair Haven, 177 N.J. 338, 356 (2003)). "[T]o

effectuate the legislative intent to create statewide uniformity . . . the

requirements established in the MLUL are to be applied strictly." Ibid. (citing

Manalapan Holding Co. v. Manalapan Planning Bd., 92 N.J. 466, 482 (1983)).

"The presumption of the validity of local legislative action is constrained by the

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obvious understanding that '[a] statute has supremacy over an ordinance,' and 'a

local municipality is but a creature of the State, capable of exercising only those

powers granted by the Legislature.'" Fraternal Order of Police, Newark Lodge

No. 12 v. City of Newark, 459 N.J. Super. 458, 489 (App. Div. 2019) (internal

citations omitted). Thus, "[a] municipality's power to effectuate planning

schemes . . . must be exercised in strict conformity with the delegating

enactments—the MLUL." New Jersey Shore Builders Ass'n, 401 N.J. Super. at

161 (quoting Toll Bros., Inc. v. Bd. of Chosen Freeholders, Cnty. of Burlington,

194 N.J. 223, 243 (2008)).

We agree with Judge Silverman Katz that Haddonfield's Ordinance

conflicted with the pronouncements in the MLUL and the RSIS by applying

stormwater review to single-family and two-family homes. Nothing in the

DEP's stormwater management regulations allowed Haddonfield to violate the

MLUL or the RSIS by adopting an ordinance imposing stricter requirements

than the requirements under the enabling legislation. In fact, during the

comment period prior to the DEP's adoption of stormwater management

regulations, the agency explained "[a] single-family dwelling on a single-family

lot would not be subject to the requirements of [the regulations] unless it falls

under the definition of 'major development.'" Because the Ordinance exceeded

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Haddonfield's authority under the MLUL, Judge Silverman Katz properly

concluded the Ordinance was invalid.

We next consider Haddonfield's contention the judge erred in declining to

transfer the action to the DEP for adjudication based on the agency's special

expertise. We again agree with Judge Silverman Katz that Haddonfield's

argument is flawed. Although the DEP issued a municipal storm sewer system

permit, triggering Haddonfield's requirement to adopt a stormwater management

ordinance, the DEP did not prepare or adopt the Ordinance. The DEP was

established to "adopt regulations to protect the public safety with respect to

storm water detention facilities," not to determine the validity of municipal

ordinances. N.J.S.A. 40:55D-95.1. The BLSJ's challenge was not directed to

the validity of a regulation or any act by the DEP. Rather, the BLSJ argued the

Ordinance was inconsistent with State law. See Alexander's Dept. Stores of

New Jersey, Inc. v. Borough of Paramus, 125 N.J. 100, 103 (1991) (holding a

party could not be barred "from bringing suit in the Law Division challenging

municipal actions not directly related to [agency] proceedings themselves"). A

challenge to the validity of the Ordinance by way of an action in lieu of

prerogative writs is squarely within the purview of the Law Division of the

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Superior Court. Thus, no transfer to the DEP was required to adjudicate that

issue.

Affirmed.

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