Opinion
DOCKET NO. A-3583-13T3 DOCKET NO. A-0184-14T2 DOCKET NO. A-0519-14T2
08-08-2016
THE GALAXY TOWERS CONDOMINIUM ASSOCIATION, INC., Plaintiff-Appellant, v. TOWNSHIP OF NORTH BERGEN PLANNING BOARD and APPLEVIEW, LLC, Defendants-Respondents. THE GALAXY TOWERS CONDOMINIUM ASSOCIATION, INC., Plaintiff, v. TOWNSHIP OF NORTH BERGEN PLANNING BOARD, APPLEVIEW, LLC, and TOWNSHIP OF NORTH BERGEN, Defendants-Respondents. PORT IMPERIAL CONDOMINIUM ASSOCIATION, INC., Appellant. THE GALAXY TOWERS CONDOMINIUM ASSOCIATION, INC., Plaintiff-Appellant, v. TOWNSHIP OF NORTH BERGEN PLANNING BOARD, APPLEVIEW, LLC, and TOWNSHIP OF NORTH BERGEN, Defendants-Respondents.
Ira E. Weiner argued the cause for appellant The Galaxy Towers Condominium Association, Inc. in A-3583-13 and A-0519-14 (Beattie Padovano, LLC, attorneys; Mr. Weiner and John J. Lamb, of counsel and on the briefs; Daniel L. Steinhagen, on the briefs in A-3583-13; Mr. Weiner and Mr. Lamb, of counsel; Mr. Steinhagen and Mariya Gonor, on the briefs in A-0519-14). Brian M. Chewcaskie argued the cause for respondent Township of North Bergen Planning Board in A-3853-13 and A-0519-14, and respondent Township of North Bergen in A-0519-14 (Gittleman Muhlstock & Chewcaskie, L.L.P., attorneys; Steven D. Muhlstock, on the brief in A-3583-13; Mr. Muhlstock and Nylema Nabbie, of counsel and on the brief in A-0519-14). Carmine R. Alampi argued the cause for respondent Appleview, LLC in A-3583-13 and A-0519-84 (Alampi & De Marrais, attorneys; Santo T. Alampi, on the briefs in A-3583-13, A-0519-14 and A-0184-14). Gittleman Muhlstock & Chewcaskie, L.L.P., attorneys for respondents Township of North Bergen Planning Board and Township of North Bergen in A-0184-14 (Steven D. Muhlstock, on the brief). Becker and Poliakoff, LLP, attorneys for appellant Port Imperial Condominium Association, Inc. in A-0184-14 (Peter W. Smith and Martin Cabalar, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Argued (A-3583-13 and A-0519-14) and Submitted (A-0184-14) May 3, 2016 - Decided August 8, 2016 Before Judges Hoffman, Leone and Whipple. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket Nos. L-4017-11 and L-2952-13. Ira E. Weiner argued the cause for appellant The Galaxy Towers Condominium Association, Inc. in A-3583-13 and A-0519-14 (Beattie Padovano, LLC, attorneys; Mr. Weiner and John J. Lamb, of counsel and on the briefs; Daniel L. Steinhagen, on the briefs in A-3583-13; Mr. Weiner and Mr. Lamb, of counsel; Mr. Steinhagen and Mariya Gonor, on the briefs in A-0519-14). Brian M. Chewcaskie argued the cause for respondent Township of North Bergen Planning Board in A-3853-13 and A-0519-14, and respondent Township of North Bergen in A-0519-14 (Gittleman Muhlstock & Chewcaskie, L.L.P., attorneys; Steven D. Muhlstock, on the brief in A-3583-13; Mr. Muhlstock and Nylema Nabbie, of counsel and on the brief in A-0519-14). Carmine R. Alampi argued the cause for respondent Appleview, LLC in A-3583-13 and A-0519-84 (Alampi & De Marrais, attorneys; Santo T. Alampi, on the briefs in A-3583-13, A-0519-14 and A-0184-14). Gittleman Muhlstock & Chewcaskie, L.L.P., attorneys for respondents Township of North Bergen Planning Board and Township of North Bergen in A-0184-14 (Steven D. Muhlstock, on the brief). Becker and Poliakoff, LLP, attorneys for appellant Port Imperial Condominium Association, Inc. in A-0184-14 (Peter W. Smith and Martin Cabalar, on the brief). PER CURIAM
Appellant Port Imperial Condominium Association, Inc. is appealing the denial of its motion to intervene.
In July 2010, defendant Appleview, LLC (Appleview) filed a site plan development application with defendant Township of North Bergen Planning Board ("Planning Board" or "Board"), proposing to construct a fifty-nine-unit mid-rise residential building on a parcel located on the west side of River Road and at the bottom of the Palisades. Plaintiff Galaxy Towers Condominium Association, Inc. owns adjacent property to the south of the proposed construction site. Plaintiff vigorously opposed Appleview's development application before the Planning Board, as well as in two subsequent civil actions in the Law Division.
We have consolidated these back-to-back matters for purposes of this opinion. In A-3583-13, plaintiff appeals a December 22, 2011 order remanding to the Planning Board for further testimony regarding the proposed construction's effect on a nearby natural gas pipeline; in A-0519-14, plaintiff appeals a February 28, 2014 order dismissing its complaint; and in A-0184-14, Port Imperial Condo Association (PICA) appeals a July 24, 2014 order denying its motion to intervene in this case. For the reasons that follow, we affirm in all three appeals.
I.
The proposed construction site is comprised of four lots in Block 316 of North Bergen, and currently contains dilapidated tennis and basketball courts. To the east of the site is River Road, and beyond that the Hudson River. To the north is a large treatment plant owned by the North Bergen Municipal Utilities Authority (NBMUA). To the south of the site is plaintiff's property, which contains a 1075-unit condominium building. Notably, the southern border of the site shared with plaintiff is essentially coextensive with the municipal border between North Bergen and Guttenberg; Appleview's property is situated in North Bergen, while plaintiff's property is located in Guttenberg.
To the west lies a greenery that is considered part of the Palisades, a series of ridges and cliffs that run parallel to the Hudson River. The site is located in North Bergen's P-2 Edgecliff Zoning District, the purpose of which is to
allow maximum potential development against the Palisades while preserving the view of and from the cliff from within as well as outside the waterfront area through height and lot coverage restrictions; to allow flexibility in site design by acknowledging the topographical limitations inherent in potential sites.
Additionally, a natural gas pipeline, owned and operated by Transco, runs underground along the site's northern border and cuts across the western portion of the site. Transco employees perform regular inspections on the pipeline, which has run through North Bergen since 1959. Appleview granted Transco a permanent easement for purposes of inspecting and maintaining the pipeline.
Appleview filed its site plan development application with the Planning Board on April 29, 2010. In its application, Appleview proposed to consolidate the four lots in Block 316 and build a structure with surface parking and four levels of residential units. In order to complete the project as proposed, Appleview needed to obtain bulk variances to allow less rear-yard setback, greater building coverage, and a smaller lot area than required by the North Bergen zoning ordinance.
The Planning Board conducted a series of hearings on the development application. At these hearings, Appleview produced witnesses to testify regarding the legality and practicability of the proposed construction. Appleview's planner testified that the building's proposed coverage was 6.6% greater than the 25% zoning maximum, but only because Appleview sought to "spread out" the building's surface area in an attempt to keep the building's height to a minimum and preserve the view of the cliff ridge line of the Palisades. The planner also testified that the Planning Board could grant the necessary variances for the project without any detriment to the surrounding neighborhood. Considering the current dilapidated state of the property, the planner testified that the benefit of improving the area's aesthetics and visual environment would outweigh any potential detriments of the project. Appleview also retained a civil engineer, who testified that the proposed impervious coverage was within the 65% permitted by ordinance.
Additionally, Appleview proffered testimony from a geotechnical engineer and traffic consultant. The geotechnical engineer testified that a setback variance was warranted due to the unique topographical conditions presented by the property and nearby Palisades. The traffic consultant testified that the project would only have a minimal impact on the traffic on River Road, which is a four-lane roadway.
Plaintiff actively opposed Appleview's site plan at the hearings. Its primary position was that Appleview could not complete its proposed project without substantial variance relief, and thus should be forced to sell the property to plaintiff, who could more readily utilize the property in a manner that does not require variance relief. To support this position, plaintiff proffered several experts of its own.
Plaintiff's professional planner testified that Appleview's proposed building would be seventy-two feet closer to the Palisades than permitted by ordinance, and would obstruct adjoining properties' view of the Palisades. According to the planner, Appleview's project would violate one of the main purposes of the zoning district, which is to "preserv[e] the view of and from the cliff from within as well as outside the waterfront area."
Plaintiff also retained a chemical engineer and a geologist to testify regarding the proposed construction's impact on the natural gas pipeline. The chemical engineer testified that the construction would increase the area's risk of landslides, and could potentially cause the pipeline to rupture. Furthermore, the geologist testified that the pipeline passed through hard rock and soft soil, and that subsurface vibrations could impact the pipeline.
Notably, the testimony proffered by plaintiff regarding pipeline safety was not rebutted at these hearings. Appleview did not proffer any expert testimony regarding pipeline safety, nor did it produce any Transco representatives to testify regarding the project's potential impact on the pipeline.
After surveying the site and undertaking an engineering review, Transco sent a letter to the Board indicating that it had no objections to the proposed project.
In addition to pipeline safety, plaintiff's geologist testified about the proposed construction's compliance with local ordinances. He testified that the proposed building would need to be at least forty feet closer to River Road in order to satisfy rear-yard setback requirements without the need for variance relief.
In total, the Planning Board held ten hearings on the site plan application. On June 9, 2011, the Board adopted a resolution approving the application and granting all the necessary variances for the project. The Board specifically rejected the argument that Appleview should be forced to sell the property to plaintiff:
An issue was raised by [plaintiff], a property owner located in another municipality, Guttenberg, as to an offer of sale for the property in North Bergen. The Board finds that it is charged with
determining the merits of the application based upon conditions within the Township of North Bergen and finds that the lot area is an existing condition, which cannot be enlarged by virtue of the adjoining uses.As for the pipeline safety issues, the Planning Board concluded:
[T]here is not a planning or zoning basis to deny the application or the requested variance relief as a result of the location of this gas pipeline. In fact, none of the variances requested would have an impact on this gas pipeline. In addition, the applicant has testified and has produced evidence from Transco that any construction that occurs on the site will be in accordance with the approved methodology of Transco. Further, the Board will condition this approval on obtaining all necessary approvals with respect to the construction . . . as it relates to the adjoining gas pipeline.
Shortly after the Planning Board's decision, in July 2011, plaintiff filed an action in lieu of prerogative writs (the 2011 action) against Appleview and the Planning Board, challenging the resolution. Three counts of the 2011 action are relevant to this appeal. Count one was titled "A Risk Analysis Should [b]e Prepared Which Identifies the Major Risks and a Mitigation Plan to Address Same." Count twelve asserted a cause of action against Appleview for "Failure to Offer Vacant Property for Sale to Adjacent Properties to Avoid Undersized Lot Variance." Finally, count twenty was titled "Decision to Approve the Application was Arbitrary, Capricious and Unreasonable."
In late 2011, the parties filed cross-motions for summary judgment. On December 22, 2011, the trial court issued an order granting summary judgment for plaintiff in part and defendants in part. The court granted summary judgment for defendant on count twelve, explaining that:
an offer to purchase . . . [does not] de facto defeat the variance but is only a factor to be considered by the Board. The Court finds that under the facts particular to this piece of the Board's decision in granting the variance was not unreasonable, arbitrary or capricious with regard to Appleview's failure to offer the property for sale to [plaintiff].However, the court granted summary judgment for plaintiff on counts one and twenty:
The Court finds, however, because of the lack of evidence in the record regarding the detriments, or lack thereof vis a vis the natural gas pipeline[,] the Board had insufficient evidence to support a finding that the development's benefits outweigh the detriments. The Board was premature in voting on the variances and final site plan without the opportunity to review the easement/license and agreements between Appleview and Transco during and following construction. The Board has in essence given the developer carte blanche in determining the safety measures to be in place and adhered to during constructions. The Board has delegated the safety issue which is the Board's responsibility pursuant to New Jersey's Municipal Land Use Law to the developer whose interests include cost effectiveness and expedited construction, which interests may conflict with the Board's mandate to consider safety both
during and after construction with regard to access and maintenance of the pipeline. This is arbitrary, capricious and unreasonable.Thus, while retaining jurisdiction, the trial court invalidated the resolution and remanded the case to the Planning Board for additional testimony regarding the project's potential effect on the Transco pipeline.
On remand, the Planning Board conducted an additional eleven hearings on the issue of pipeline safety. The most relevant new testimony came from Transco's Senior Division Manager, who offered his opinion that the project did not pose a danger to the pipeline. Specifically, he testified that he was not concerned by the twenty-five-foot proximity of the proposed building to the pipeline, considering that he was aware of other structures in similar situations that were as close as ten feet to the pipeline. Moreover, the manager testified that Transco planned to hire a consultant to closely monitor the construction and any foundational vibrations that occur during excavation.
Additionally, North Bergen's Township Engineer testified that he saw no reason why the construction could not be performed in a safe manner. After reviewing the Transco pipeline stress analysis, he determined that the maximum potential pipe stresses were within the acceptable range. He also noted, in a subsequent letter to the Planning Board, that
the Federal requirements appear to be sufficient to protect the public. This developer is not proposing to perform construction in the immediate area of the pipeline. All of the heavy construction will be kept outside the limits of the [twenty-foot-wide] access easement [to Transco and the NBMUA]. No construction is proposed on the slope in the vicinity of the pipeline.
Appleview produced testimony from various other experts with experience in pipeline operations and the geological impact of major construction projects. Appleview's engineer testified that the pipeline had been stabilized by a six-inch-deep "geo-web" that was anchored with steel rods in the ground. Notably, Transco's Senior Division Manager revealed that Appleview's engineer based his testimony on information received from the Pipeline Hazardous and Materials Safety Administration (PHMSA), who had received the information from Transco's pipeline safety group.
After hearing this additional testimony, the Planning Board once again approved Appleview's application and issued a new resolution on May 7, 2013, incorporating the old resolution by reference and imposing new conditions on Appleview for the purpose of ensuring safe construction near the pipeline. On August 1, 2013, plaintiff filed a second action in lieu of prerogative writs (the 2013 action) against Appleview and the Planning Board. Plaintiff subsequently amended this action to include the Township of North Bergen as a defendant.
On August 27, 2013, plaintiff filed a motion to consolidate the 2011 action and the 2013 action. The trial court denied this motion, and subsequently entered an order dismissing the 2011 action. Plaintiff appeals the 2011 action under docket number A-3583-13.
Appleview moved before this court for dismissal of plaintiff's appeal as untimely and barred by the doctrines of waiver, laches, and estoppel. We reserved decision on this motion. In the same order, we granted a separate motion by Appleview to strike new evidence presented in plaintiff's appellate submissions and direct plaintiff to file a revised brief based on evidence already in the record.
Plaintiff moved in the trial court for a stay of the 2013 action, pending plaintiff's appeal under A-3583-13. The trial court denied this motion in an order dated May 23, 2014. Plaintiff then requested leave to file an emergent application for a stay of the 2013 action. We denied this application, and also denied plaintiff's subsequent motion for leave to appeal the May 23, 2014 order.
A bench trial on the 2013 action was conducted before Judge Joseph A. Turula. At the conclusion of trial, Judge Turula issued an order and corresponding thirty-eight-page opinion, upholding the May 7, 2013 Board resolution granting Appleview's development application. Plaintiff appeals this order, dated August 14, 2014, under docket number A-0519-14.
Because North Bergen lacked an off-site improvement contribution ordinance, the court did invalidate one provision of the new resolution, which required Transco to "make a [$25,000] contribution for off-site municipal improvements."
PICA represents residents of a condominium development located in West New York and Guttenberg near the proposed construction site. In July 2014, four days before trial began, PICA filed a motion for intervention as of right, or for permissive intervention. The trial court denied PICA's motion on July 24, 2014. With regard to intervention as of right, the court held that the motion was untimely, and that PICA's interests were adequately represented by plaintiff. As for permissive intervention, the court held that leave to intervene would result in undue delay. PICA appeals the denial of its motion to intervene under docket number A-0184-14.
We address the appeals under A-3583-13, A-0519-14, and A-0184-14 in turn.
II.
In A-3583-13, plaintiff challenges the trial court's December 22, 2011 order to the extent it entered summary judgment against plaintiff on count twelve of the 2011 action and remanded counts one and twenty to the Planning Board for additional testimony.
At the onset, we note that Appleview renews a motion it filed in 2014 to dismiss this appeal as untimely. The crux of Appleview's argument is that plaintiff should have challenged the December 22, 2011 order immediately after it was issued, rather than wait until after the Board proceedings on remand. We previously reserved decision on this motion, and now deny it on its merits. The December 22, 2011 order was not a final judgment or order, as it did not resolve all claims regarding all parties. The issue of pipeline safety had yet to be resolved. Absent a final order, plaintiff was under no obligation to file its appeal before the second series of Board hearings. See R. 2:2-3.
Turning to the merits of this appeal, plaintiff argues that the court's decision to remand the case "merely served to improperly give Appleview a second chance to supply proofs it was required to provide but failed to adduce." Appleview counters by arguing that such remands are not uncommon, and that trial courts have broad discretion to compel them.
In Betts v. Bd. of Adj. of Linden, 72 N.J. Super. 213, 219 (App. Div. 1962), we noted that remands in zoning cases "serve[] the purpose of enlarging the record where clarification of proofs is requisite to the intelligent determination of the issues presented." The proceedings on remand "should be limited to a clarification of the proofs" regarding specific issues that were not fully developed during the initial proceedings. 459 Cent. Ave. Corp. v. Zoning Bd. of Adj., 90 N.J. Super. 303, 305 (App. Div.), certif. denied, 47 N.J. 89 (1966). Remands are not appropriate, however, for the purpose of re-litigating issues that have been fairly and fully adjudicated. Betts, supra, 72 N.J. Super. at 219.
We are satisfied that the trial court properly remanded this case to the Planning Board for additional proceedings. On remand, the parties did not re-litigate the same issues that were argued during the first series of Planning Board hearings; rather, the hearings on remand focused on one specific issue that had not yet been fully developed: pipeline safety. Prior to the remand, there had been no testimony by any Transco representative, and no expert testimony from Appleview regarding the project's potential effect on the pipeline. Although plaintiff contends that this lack of evidence demonstrates Appleview's inability to meet its burden of proof, we find it indicative of an inadequate factual record in the first set of hearings. The trial court did not abuse its discretion by remanding the case back to the Planning Board for the purpose of developing the record regarding a critical issue in the case.
We further conclude that the trial court did not err by dismissing count twelve of the 2011 action, which asserted that Appleview should be denied variance relief because plaintiff was willing to purchase the property and use it in a manner that did not require variance relief. After arguing against the remand with regard to counts one and twenty, plaintiff argues that the trial court, at the very least, should have remanded on count twelve, so that plaintiff could introduce new evidence that it offered to purchase the subject property from Appleview for fair market value. This argument is unpersuasive.
In its written opinion, the trial court observed that the record was lacking sufficient evidence regarding plaintiff's offer to purchase the property. However, the trial court dismissed count twelve on the grounds that "an offer to purchase . . . [does not] de facto defeat the variance but is only a factor to be considered by the Board." The court essentially assumed the truth of the factual premise of plaintiff's argument, but rejected the argument as legally insufficient to vitiate the issuance of variance relief in this case. In other words, the trial court concluded that, even if plaintiff had made an offer to purchase the lot for fair market value, such an offer did not necessarily render the Planning Board's decision unreasonable, arbitrary, or capricious.
Since the trial court considered plaintiff's factual position — that it offered to purchase the Appleview lot at fair market value — when making its deliberations, a remand would not have changed the outcome. Although a purchase offer is relevant to the decision to afford variance relief, it is not dispositive. See Gougeon v. Bd. of Adj., 54 N.J. 138, 149 (1969) ("[I]t was not intended that existence of such an offer [to purchase], of itself, would warrant denial of [variance] relief." (citation omitted)). The court gave plaintiff's purchase offer due weight, but concluded that, based on the facts of this case, the offer was not a sufficient ground for overturning the Planning Board resolution and denying variance relief. No remand was necessary on count twelve; therefore, we will not disturb the trial court's conclusion.
Accordingly, we affirm the trial court's December 22, 2011 order.
III.
In A-0519-14, plaintiff challenges the trial court's order of August 15, 2014, upholding the Planning Board's May 7, 2013 resolution.
When reviewing zoning board decisions, we adhere to the same standard of review as the trial court. Bressman v. Gash, 131 N.J. 517, 529 (1993). Such decisions are presumed valid in light of zoning boards' "peculiar knowledge of local conditions." Kramer v. Bd. of Adj., 45 N.J. 268, 296 (1965). The party challenging a board's decision bears the burden of overcoming its presumption of validity. Cell South of N.J., Inc. v. Zoning Bd. of Adj., W. Windsor Twp., 172 N.J. 75, 81 (2002).
"[C]ourts ordinarily should not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. Borough of N. Caldwell Bd. of Adj., 160 N.J. 41, 58-59 (1999). We will not substitute our own judgment for that of a board, and will only set aside a board's determination when it is arbitrary, capricious or unreasonable. Wilson v. Brick Twp. Zon. Bd., 405 N.J. Super. 189, 196 (App. Div. 2009). We will not declare a board's action invalid absent a clear abuse of discretion. Kramer, supra, 45 N.J. at 296-97.
In this case, the Planning Board granted all three variances necessary for Appleview to complete the project pursuant to N.J.S.A. 40:55D-70(c)(2). This provision of the Municipal Land Use Law (MLUL) authorizes zoning boards to grant bulk variances when the benefits of a variance "substantially outweigh" the detriments. The grant of a (c)(2) variance must be rooted in the purposes of zoning and planning itself and must advance the purposes of the MLUL. Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 562 (1988). In Kaufmann, our Supreme Court elaborated on the standard to be applied when assessing whether to grant a (c)(2) variance:
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 be not 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.
[Id. at 563 (emphasis omitted).]
With regard to the negative criteria, a variance applicant must establish: (1) that the variance can be granted without substantial detriment to the public good; and (2) that the variance will not substantially impair the intent and the purpose of the zone plan and zoning ordinance. N.J.S.A. 40:55D-70. A variance will be upheld if it is supported by adequate evidence in the record and the Board, without arbitrariness, finds that "the harms, if any, are substantially outweighed by the benefits." Kaufmann, supra, 110 N.J. at 565.
On appeal, plaintiff challenges the Planning Board's decision to grant (c)(2) variances to Appleview for lot area, building coverage, and rear-yard setback. Plaintiff argues that the Board's decisions are not supported by substantial credible evidence, and that the Board improperly analyzed the pipeline safety issues on remand. We disagree.
The Board's decision to grant the three bulk variances is supported by substantial credible evidence in the record. First, with regard to lot area, the Board found that Appleview "minimized any impact of the residential project on a smaller site by reducing the density and height from what would be permitted by ordinance." Stated differently, the Board held that the detriments of granting a lot-area variance were minimal, and further mitigated by Appleview's efforts to preserve the view of the Palisades and Hudson River for the surrounding community. The Board heard a significant amount of testimony regarding Appleview's lot-area limitations over the course of ten hearings, the most persuasive of which came from Appleview's planner. After reviewing the planner's testimony, we are satisfied that the Board's decision regarding lot area was supported by sufficient credible evidence, irrespective of whether we would have reached a different conclusion ourselves. See Wilson, supra, 405 N.J. Super. at 196.
Second, with regard to building coverage, the Board emphasized that the project's impervious coverage would be well within the parameters set forth by ordinance. Thus, notwithstanding the project's nonconforming building coverage, the project would still fall within an acceptable density and have a low impact on the surrounding community. This conclusion, which was based largely on the testimony by Appleview's civil engineer, was also based on substantial credible evidence.
Third, with regard to rear-yard setback, the Board concluded that the proposed construction would "not affect the slope or characteristics of the Palisades cliff, nor [would it] substantially obstruct the view of the Palisades." Moreover, the Board held that variance relief was consistent with one of the purposes of the P-2 zoning district, which is to acknowledge unique topographical limitations that may arise from proximity to the Palisades. The Board relied on testimony from Appleview's geotechnical engineer to determine that the benefits of variance relief outweigh the detriments. We will not disturb this decision, which was also supported by evidence.
We acknowledge that the proper standard under N.J.S.A. 40:55D-70(c)(2) requires the Board to determine that the benefits of variance relief "substantially outweigh" the detriments, and that the Planning Board did not include the word "substantially" in its conclusions. Nevertheless, we hold that the record contained substantial credible evidence that the benefits of variance relief substantially outweigh the benefits.
In the same fashion, we also conclude that the Board did not err when it determined, on remand, that there were no issues of pipeline safety which posed a substantial detriment to the public good or justified denying Appleview's development application. The Board conducted an additional eleven hearings on the issue of pipeline safety, hearing from Transco representatives and experts in the pipeline industry. There was more than sufficient evidence to support the Board's conclusion that the project could be performed safely without causing damage to the Transco pipeline.
Plaintiff also argues that the Planning Board's conclusions were unreasonable, arbitrary, and capricious to the extent that they rely on the testimony of Transco's Senior Division Manager, who was an engineer. Plaintiff argues that the engineer's testimony was an inadmissible net opinion and also hearsay, and thus should not have been relied upon by the Board. This argument lacks merit in light of the MLUL's express rejection of the rules of evidence in zoning board hearings. See N.J.S.A. 40:55D-10(e) (declaring that "[t]echnical rules of evidence shall not be applicable to the hearing" of a municipal land use agency); see also Baghdikian v. Bd. of Adj. of Borough of Ramsey, 247 N.J. Super. 45, 49 (App. Div. 1991) (stating that a zoning board "cannot be equated with courts" and procedural safeguards employed in judicial proceedings should not be "imported wholesale" into proceedings before a land use board). Consequently, the question is not whether an opinion is admissible pursuant to the net opinion rule; rather, the question is whether the opinion is sufficiently supported by data and other evidence, so that reliance on the opinion is not arbitrary or unreasonable, and the Board's ultimate decision was supported by sufficient credible evidence.
Applying this standard, we discern no error by the Board. The opinion of Transco's engineer was detailed, was adequately supported, and was appropriate evidence for the Board to consider. Moreover, there was other evidence in the record sufficient to support the Board's conclusion. Notably, the Board also heard testimony from the Township Engineer, who concluded that the project could be performed safely as long as it remained under the supervision of Transco representatives. Citing to the testimony proffered by Transco's engineer did not render the Board's decision arbitrary, capricious, or unreasonable.
Plaintiff also objects to the engineer's reliance on documents that plaintiff did not have an opportunity to review. We reject this argument. Transco's refusal to produce certain documents does not necessarily render the engineer's testimony a net opinion. Moreover, the trial court had retained jurisdiction over the matter on remand. If the documents were truly important to plaintiff, plaintiff could have sought an order from the trial court compelling their production. Plaintiff failed to do so, and thus waived this claim. See Knorr v. Smeal, 178 N.J. 169, 177 (2003). Moreover, plaintiff concedes that the data it sought concerned the integrity of the pipeline in its current state, rather than its state under the proposed construction.
In addition to challenging the content of the Board resolution, plaintiff argues that the Planning Board proceedings were tainted because the Board members were compensated for each special meeting they attended. This compensation, however, was permitted by N.J.S.A. 40:55D-8(b), and authorized by Township Ordinance 1085-06. We presume fee ordinances to be valid, Dial, Inc. v. City of Passaic, 443 N.J. Super. 492, 502-03 (App. Div. 2016), and no evidence has been presented to suggest that the ordinance at issue here is invalid. To the contrary, we find that it was a proper way to incentivize attendance by Board members at special hearings, in a matter that required nearly two dozen hearings that would not have otherwise been called.
In his opinion, Judge Turula addressed plaintiff's argument and found that the $150-per-special-meeting payments were reasonable to ensure proper deliberations on pending applications, as authorized by N.J.S.A. 40:55D-8(b). He added:
The fee schedule adopted by ordinance is presumably designed to recover expenses associated with the operation and attendance of meetings, as well as the review of applications and preparation of resolutions. The special meetings in this case were necessary to elicit additional testimony from witnesses following remand . . . . Indeed, the complexity of the instant application should not be overlooked. The stipend is necessary to encourage attendance and to hear applications that may otherwise be impracticable to consider with the regularly scheduled Board meetings alone.
Because the Association fails to overcome the presumption that this particular section in the ordinance is reasonable, this claim must be rejected.
Next, plaintiff argues that the trial court erred by concluding that the twenty-foot-long easement to Transco — created for the purpose of providing a staging and maintenance area for the pipeline and other local sewer and utility lines — did not require a use variance pursuant to N.J.S.A. 40:55D- 70(d). We reject this argument, for substantially the reasons set forth by Judge Turula:
Likewise, the access area is neither a result of a merging of a nonconforming lot nor a creation of a designated accessory use by Appleview. The Transco pipeline and the adjacent sewer structures have existed in the P-2 Zone before the adoption of the Zoning Ordinance and without the need for nonconforming use variances under N.J.S.A. 40:55D-68. This Court does not find that an application for a residential development implicates the need for one now.We only add one comment. Plaintiff's primary concern with the Appleview project highlights the safety implications of building so close to the pipeline. Considering that the easement permits Transco to inspect and maintain the natural gas pipeline on Appleview's property, we find plaintiff's objection to the easement to be at cross-purposes with its concern.
Finally, we find no merit in plaintiff's argument that the Planning Board improperly refused to permit evidence on remand pertaining to plaintiff's purchase offer for the Appleview lot. In its December 22, 2011 order, which we have already affirmed, the trial court rejected plaintiff's argument based on its purchase offer, and remanded the case for additional fact-finding on the issue of pipeline safety. The Board did not err by limiting new evidence on remand to testimony regarding this issue.
Accordingly, we affirm the trial court's order upholding the May 7, 2013 resolution issued by the Planning Board.
IV.
Finally, in A-0184-14, PICA challenges the trial court's denial of its motion to intervene. First, PICA argues that it was entitled to intervene as of right, because plaintiff did not adequately represent its interests in this matter. Then, PICA argues that the trial court should have granted permissive intervention because doing so would not have unduly delayed the proceedings or prejudiced the existing parties.
After careful consideration, we conclude that these arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm the order denying intervention substantially for the reasons set forth by Judge Turula in his oral decision, read from the bench on July 24, 2014. We add the following brief comments.
Rule 4:33-1 sets forth the four criteria a movant must satisfy in order to intervene as of right. The movant must
(1) claim "an interest relating to the property or transaction which is the subject of the transaction," (2) show [that the movant] is "so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest," (3) demonstrate that the "[movant's] interest" is not "adequately represented by existing parties," and (4) make a "timely" application to intervene.
[ACLU of N.J. v. Cty. of Hudson, 352 N.J. Super. 44, 67 (App. Div.) (quoting Meehan v. K.D. Partners, L.P., 317 N.J. Super. 563, 58 (App. Div. 1998)), certif. denied, 174 N.J. 190 (2002).]PICA has failed to satisfy the third prong.
PICA's interest in this case is based entirely on pipeline-safety concerns as they relate to its nearby residential complex. Notwithstanding PICA's arguments to the contrary, plaintiff has shared the same interest from the onset of this litigation. Pipeline safety was one of plaintiff's primary concerns when opposing the project during the first series of Planning Board hearings, and was the sole issue argued by the parties during the second series of hearings following remand. A pipeline disaster could endanger the residents of both plaintiff's complex and PICA's building.
For various reasons, PICA claims that a pipeline disaster would impact its residents significantly more than plaintiff's residents; however, this only speaks to the degree of PICA's interest, and not to the nature of the interest itself. In any event, we find that plaintiff's interest in pipeline safety was significant, and that the extent to which plaintiff consistently and vigorously advocated for its interest was sufficient to represent PICA's own interest in pipeline safety.
Furthermore, we note that PICA failed to satisfy the fourth prong regarding timeliness. --------
Moreover, the trial court did not abuse its discretion by declining to grant permissive intervention in this case. Due to its late timing, PICA's intervention motion was heard on the first day of trial. Granting the motion would have necessarily resulted in an adjournment, for a case that was already four-years old. The trial court correctly concluded that permissive intervention would have resulted in undue delay and prejudice to the parties. See R. 4:33-2 (affording the trial court with discretion when considering whether intervention will unduly delay or prejudice the original parties to the action).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION