Opinion
DOCKET NO. A-0989-14T3
03-30-2016
ROBERT HARE, Plaintiff-Appellant, v. TOWNSHIP OF BARNEGAT PLANNING BOARD and EASTERN CONCRETE MATERIALS, INC., Defendants-Respondents.
R.S. Gasiorowski argued the cause for appellant (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, on the brief). Michael J. McKenna argued the cause for respondent Township of Barnegat Planning Board (Hiering, Gannon and McKenna, attorneys; Mr. McKenna, on the brief). Denis P. Kelly argued the cause for respondent Eastern Concrete Materials, Inc. (Gilmore & Monahan, P.A., attorneys; Mr. Kelly, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso, O'Connor and Suter. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1619-13. R.S. Gasiorowski argued the cause for appellant (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, on the brief). Michael J. McKenna argued the cause for respondent Township of Barnegat Planning Board (Hiering, Gannon and McKenna, attorneys; Mr. McKenna, on the brief). Denis P. Kelly argued the cause for respondent Eastern Concrete Materials, Inc. (Gilmore & Monahan, P.A., attorneys; Mr. Kelly, of counsel and on the brief). PER CURIAM
In this prerogative writs action, plaintiff Robert Hare appeals from a Law Division judgment affirming the Barnegat Township Planning Board's approval of defendant Eastern Concrete Materials, Inc.'s application for minor site plan approval. We affirm, substantially for the reasons expressed by Judge Wellerson in his opinion from the bench on September 8, 2014.
Eastern Concrete owns a 227-acre parcel on Route 539 in Barnegat Township in the Pine Barrens. The parcel is located entirely within the Township's Preservation Area Zone and subject to the jurisdiction of the Pinelands Commission. Approximately forty-seven percent of the tract, consisting of about 106 acres, is deed restricted to protect the habitat of the northern pine snake. Eastern Concrete mines sand and gravel on seventy-seven acres pursuant to a renewable three-year conditional use permit.
The property has been mined since at least 1981. Eastern Concrete's predecessor in title formerly operated a batch plant, a facility to combine or batch the aggregate mined on the property with the cement and other materials that make concrete, on the parcel in conjunction with its mining operations. Although Eastern Concrete never operated the plant in conjunction with its own mining operations, it attempted in 2010 to reserve its right to do so. The Planning Board, however, determined that any operation of the batch plant would have to be approved by the Board and the Pinelands Commission.
Eastern Concrete filed an application with the Planning Board for minor site plan approval, without variances or waivers, to install and operate a portable batch plant as an accessory use in 2013. Because the Township's land use ordinance makes no mention of concrete batch plants, the Planning Board's engineer recommended in his letter reviewing the application that the applicant provide testimony that the proposed batch plant would be considered an accessory use to the mining operation. The engineer advised:
If the Board determines that the concrete batch plant is not accessory to the resource extraction operations, then the Planning Board does not have jurisdiction to hear this application and the applicant must apply to the Zoning Board of Adjustment for a Use Variance.
At the hearing on the application, the Board took testimony from its engineer, Eastern Concrete's engineer and the company's senior project manager, a licensed engineer with almost thirty years' experience in the mining industry. The Board learned that Eastern Concrete intended to operate the batch plant, which was on wheels and could be moved around the property, near where its predecessor had formerly operated a stationary batch plant in conjunction with its mining operations. The predecessor had begun mining the property in 1981 and erected the batch plant shortly thereafter.
The Board's engineer noted the Pinelands Comprehensive Management Plan took effect in 1982, making it likely the plant was considered a prior non-conforming use, and suggesting the company might still be able to operate the plant without accessory use approval. Eastern Concrete's project manager, although testifying that neither the company nor its predecessor had ever abandoned the use, noted the Pinelands Commission appeared to favor the company seeking accessory use approval, leading Eastern Concrete to choose to pursue that course.
The project manager further testified the principal use of the parcel would continue to be resource extraction with the batch plant serving a subordinate and incidental use both in area and in volume. The project manager noted that concrete plants are customarily associated with mining operations and often located on the same site. He claimed that operating the batch plant on the Barnegat parcel would serve Eastern Concrete's mining operation by allowing the company to avoid the hundred-mile round trip otherwise required to process the materials mined on the site.
Members of the Board asked several questions directed at ascertaining whether the conditions required by the Pinelands Commission for conservation of threatened and endangered species on the parcel had been satisfied and that no particles or dust from the plant would enter into the wetlands buffer.
No member of the public spoke against the application. The Board voted eight to one that Eastern Concrete had established that the proposed batch plant is an accessory use to the resource extraction activities conducted on the site and approved the minor site plan application by the same vote tally. The Board thereafter approved a memorializing resolution, specifically tying the applicant's approval to operate a batch plant to its renewable three-year conditional use permit for soil removal. The approval, by its terms, automatically terminates upon the expiration of any valid soil removal permit.
In the prerogative writs action, plaintiff filed an eleven-count complaint claiming, among other things, that Eastern Concrete's notice of the application was defective, that a height variance was required and that the Board's determination that the batch plant was a permitted accessory use was arbitrary and capricious. Judge Wellerson rejected those arguments.
Specifically, the judge rejected plaintiff's argument that the notice was defective because it indicated the applicant maintained and reserved all rights to operate the concrete batch plant in its 2010 application, even though the Board had required Eastern Concrete to remove that notation from its plans in 2010 and did not disclose that the batch plant was an enlargement of the existing conditional use. The judge also rejected plaintiff's argument that the Board had not made adequate findings of fact as to why a concrete batch plant qualified as an accessory use, and he declined to find the Board erred in failing to find a height variance was required.
Judge Wellerson concluded the notice was "clear," not in the least misleading, and fairly advised any interested person the applicant was seeking to locate a batch plant on the parcel "to utilize the materials that were being mined from the site to create concrete." The court characterized the mobile batch plant as "somewhat de minimus" compared to the existing mining operation, and could not "by any stretch of the imagination" be considered "the primary use of the property." The judge found the Board properly took testimony from experts and others who explained the purpose of a batch plant and that such plants were customarily operated where sand or gravel are mined "so concrete can be readily created and distributed from the site." He further found the Board had not erred by interpreting the height limitations in the ordinance as not applying to this type of mobile structure.
Plaintiff reprises these arguments on appeal and adds that only the Zoning Board had jurisdiction over the application. We reject these arguments and affirm substantially for the reasons expressed in Judge Wellerson's opinion from the bench. We add only the following.
The law is well settled that a planning board has inherent authority to interpret a zoning ordinance in the course of considering a site plan application. See Fallone Prop., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561-62 (App. Div. 2004); Cox & Koenig, N.J. Zoning & Land Use Administration, § 26-2.3 (2015) (noting that "planning boards have always had to interpret the meaning of the zoning ordinance in connection with and incident to applications for other relief"). DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super. 161, 173 (App. Div.), certif. denied, 181 N.J. 544 (2004), on which plaintiff relies is not to the contrary, as there we affirmed the Planning Board's approval of a site plan based on the Board's interpretation of "warehouse" in the ordinance as excluding commercial storage facilities.
We see no basis to conclude the Board's determination that a batch plant is accessory to the primary use of resource extraction was arbitrary or capricious. See Booth v. Bd. of Adjustment of Rockaway Twp., 50 N.J. 302, 305 (1967) (affirming Municipal Board's decision that a blacktop plant was accessory to a mining and quarrying operation); see generally Shim v. Washington Twp. Planning Bd., 298 N.J. Super. 395 (App. Div. 1997) (explaining generally the law of accessory uses). Indeed a leading land use commentator has used a very similar example to illustrate the difference between a principal and accessory use.
If, on a tract of land there is a sand and gravel removal operation, the operation of an aggregates separation plant on the same site would clearly be accessory to the primary use of soil removal. On the other hand, if such a plant is located by itself on a tract of land where no such soil removal operation exists, but where sand and gravel is brought to the site for separation, then in that circumstance the plant is clearly a principal use of the property.
[Cox, supra, § 38-6.]
Our review of the record convinces us that none of plaintiff's remaining arguments is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION