Opinion
DOCKET NO. A-4794-13T1
11-23-2015
RUPE, LLC, a corporation organized under the laws of the State of New Jersey with a principal place of business at 1372 Route 130, Windsor, NJ 08561, Plaintiff-Appellant, v. PLANNING BOARD OF THE TOWNSHIP OF HAMILTON, a Municipality of the State of New Jersey in the County of Mercer, with its principal offices at 2090 Greenwood Avenue, CN 00150, Hamilton, NJ 08650-0150, and HAMILTON CROSSWICKS 130, LLC, a corporation organized under the laws of the State of New Jersey with a principal place of business at 1401 Broad Street, Clifton, New Jersey 07013, Defendants-Respondents.
R. William Potter argued the cause for appellant (Potter and Dickson, attorneys; Peter D. Dickson, of counsel; Mr. Dickson and Mr. Potter, on the briefs). Leo R. Zamparelli argued the cause for respondent Hamilton Township Planning Board. Gasiorowski & Holobinko, attorneys for respondent Hamilton Crosswicks 130, LLC (Ronald S. Gasiorowski, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2310-13. R. William Potter argued the cause for appellant (Potter and Dickson, attorneys; Peter D. Dickson, of counsel; Mr. Dickson and Mr. Potter, on the briefs). Leo R. Zamparelli argued the cause for respondent Hamilton Township Planning Board. Gasiorowski & Holobinko, attorneys for respondent Hamilton Crosswicks 130, LLC (Ronald S. Gasiorowski, on the brief). The opinion of the court was delivered by OSTRER, J.A.D.
Plaintiff RUPE, LLC (RUPE) appeals from the trial court's order dismissing with prejudice its complaint in lieu of prerogative writs, which challenged the approval by defendant Hamilton Township Planning Board (Board) of an application for development, submitted by defendant Hamilton Crosswicks 130, LLC (HC130). The proposed development consists of a Wawa convenience store and gasoline service station. We affirm.
Wawa, Inc. was not a party to the action before the trial court or, initially, on the appeal. A month before oral argument on the appeal, Wawa began construction at the site, pursuant to its lease from HC130. Several months after oral argument, after construction was more than half complete, RUPE filed a motion to enjoin construction pending our resolution of the appeal. Wawa sought permission to intervene in order to oppose the motion, which was also opposed by HC130 and the Board. We granted the intervention motion, and denied the motion for an injunction.
I.
We discern the following facts from the record.
HC130 owns a 6.4 acre retail property, known as Deer Path Plaza, at the southeastern corner of U.S. Route 130 and Crosswicks Hamilton Square Road in Hamilton Township, Mercer County. The two highways form an acute angle at the northern end of the property. The property is formally Lot 142, Block 2712.
An L-shaped strip shopping mall is located in the southwestern corner of the property, with substantial parking in front. To the west of this L-shaped building is a large detention basin, which leads into a second detention basin, to the north of the retail building. Separate from the L-shaped building was a freestanding building in the northern end of the property, occupied by Harry's Army and Navy store. Its footprint was 12,605 square feet.
HC130 sought preliminary and final site plan approval from the Board for its plan to redevelop 1.5 acres in the northern end of its property, which it intended to lease to Wawa. HC130 proposed to demolish the army and navy store, to enable Wawa to construct a 4,691 square foot convenience store, and a gasoline station with twelve fueling positions under a 4710 square foot canopy. HC130 proposed to utilize existing highway entrances to the site. After expressions of concern about traffic impacts, HC130 agreed to prohibit left turns out of the site onto Crosswicks Hamilton Square Road.
A convenience store is a permitted use in the HC130 zone. A gasoline station is a conditional use. One condition required that no gasoline service station be located within 1500 feet of another station. However, the Township Council deleted the proximity condition in an ordinance approved by the mayor on April 18, 2013, to be effective May 9, 2013.
HC130 had originally submitted its proposal to the Hamilton Township Zoning Board of Adjustment [ZBA], as it needed a variance from the proximity ordinance. Plaintiff operates a gasoline station less than 1500 feet from the site, on the southbound side of U.S. Route 130. However, upon passage of the new ordinance, HC130's counsel wrote to the Township's land use coordinator requesting that he "deem the application [to the ZBA] be withdrawn effective May 10, 2013 and re-filed as of that date before the Township Planning Board."
A principal issue on appeal is the development's compliance with Hamilton Township's stormwater control ordinance, which establishes minimum stormwater management requirements and controls for "major development." Hamilton Code §§ 158-1(a), 158-3; see also N.J.S.A. 40:55D-93 (requiring every municipality to adopt a stormwater management plan and ordinance in accordance with Department of Environmental Protection (DEP) regulations). Although the Hamilton ordinance mirrors many provisions in DEP regulations governing stormwater management, see N.J.A.C. 7:8-1.1 to -6.3, at issue was compliance with the Hamilton ordinance.
See N.J.A.C. 7:8-4.3(b) (discussing adoption of municipal stormwater ordinances pursuant to stormwater management plans); N.J.A.C. 7:8-4.4 (discussing DEP power to review such ordinances). HC130 separately sought a stormwater pollution permit from DEP.
A "major development" subject to the Hamilton ordinance is defined as:
Any 'development' that provides for ultimately disturbing one or more acres of land or increases the impervious surface by one-quarter acre or more. Disturbance for the purpose of this chapter is the placement of impervious surface or exposure and/or movement of soil or bedrock or clearing, cutting, or removing of vegetation.HC130 conceded that it proposed to disturb over one acre. Thus, it was required to achieve runoff reductions of fifty, seventy-five and eighty percent, for the two-year, ten-year, and one-hundred-year storm, respectively. HC130 contended, through the testimony and report of its professional engineer, Michael F. Gallagher of Maser Consulting, P.A., that it satisfied this requirement. The Board's outside environmental consultant, Ron Lai, testified that HC130 complied with the Township's stormwater ordinance. The Board so found.
[Hamilton Code § 158.2.]
The stormwater control ordinance imposes various water quantity and quality standards. Hamilton Code §§ 158-4(f) (erosion control, groundwater recharge and runoff quantity standards), 158-4(g) (stormwater runoff quality standards); see In re Stormwater Management Rules, 384 N.J. Super. 451, 456 (App. Div. 2006) (describing the equivalent DEP standards as affecting "flood control, that is 'erosion control, . . . groundwater recharge, and . . . stormwater runoff quantity', N.J.A.C. 7:8-5.4(a); and . . . pollution control, that is '[s]tormwater runoff quality' N.J.A.C. 7:8-5.5.").
"To the maximum extent practicable" these two sets of standards "shall be met by incorporating non-structural stormwater management strategies." Hamilton Code § 158-3(e)(1). The code identifies nine "nonstructural stormwater management measures" which shall:
a. Protect areas that provide water quality benefits or areas particularly susceptible to erosion and sediment loss;
b. Minimize impervious surfaces and break up or disconnect the flow of runoff over impervious surfaces;
c. Maximize the protection of natural drainage features and vegetation.
d. Minimize the decrease in the time of concentration from pre-construction to post-construction. Time of concentration is defined as the time it takes for runoff to travel from the hydraulically most distant point of the watershed to the point of interest within a watershed;
e. Minimize land disturbance including clearing and grading;
f. Minimize soil compaction;
g. Provide low-maintenance landscaping that encourages retention and planting of native vegetation and minimizes the use of lawns, fertilizers and pesticides;
h. Provide vegetated open-channel conveyance systems discharging into and through stable vegetated areas;
i. provide other source controls to prevent or minimize the use or exposure of pollutants at the site, in order to prevent or minimize the release of those pollutants into stormwater runoff. Such source controls include, but are not limited to:
1. Site design features that help to prevent accumulation of trash and debris in drainage systems, including features that satisfy subsection 158-4(e)(3), below;
2. Site design features that help to prevent discharge of trash and debris from drainage systems;
3. Site design features that help to prevent and/or contain spills or other harmful accumulations of pollutants at industrial or commercial developments; and
4. When establishing vegetation after land disturbance, applying fertilizer
in accordance with the requirements established under the Soil Erosion and Sediment Control Act, N.J.S.A. 4:24-39 et seq., and implementing rules.Applicants are required to identify the nonstructural measures they have incorporated into their design; or justify their omission if they contend they cannot feasibly incorporate any of them. Hamilton Code § 158-4(e)(1).
[Hamilton Code § 158-4(e)(2).]
However, the Code specifies that "[s]tormwater management measures shall only be required for water quality control if an additional one-fourth acre of impervious surface is being proposed on a development site." Hamilton Code § 158-4(g)(1). HC130 contended that its proposal would not add a quarter-acre or more of impervious surface. The Board's outside expert, Lai, agreed, and the Board ultimately so found. The Board also noted that HC130's development plan would significantly reduce the amount of impervious surface that would have been created had HC130 proceeded with a previously approved plan to construct in place of the army and navy store a Rite-Aid store that would have been significantly larger than the proposed Wawa.
Notwithstanding its contention that it was exempt from the nonstructural stormwater management measures, HC130's professional engineer addressed each of the nine strategies in his report. HC130 noted that some measures were impracticable because the site was already developed, but added that HC130 proposed to increased vegetation on the site:
The nine (9) strategies are identified below along with the means by which the site design attempts to incorporate these techniques.
1. Protect areas that provide water quality benefits or areas particularly susceptible to erosion and sediment loss.
a.) The area is fully developed. Two existing detention basins presently exist which provide water quality benefits, and will be maintained and improved by the proposed development.
2. Minimize impervious surfaces or break up or disconnect to flow of runoff over impervious surfaces.
b.) The proposed development will decrease impervious surfaces. The proposed development will develop only what is necessary in order to construct the necessary improvements required for adequate site design (circulation, parking, etc.).
3. Maximize the protection of natural drainage features and vegetation.
c.) The proposed development will mimic, [to] the maximum extent practical, the existing drainage patterns associated with the site. Additionally, more vegetation will be added on site which will decrease surface runoff.
Additionally, the existing basins will be modified to enhance the site's runoff characteristics.
4. Minimize the decrease in the pre-construction time of concentration.
d.) Pre-construction and post-construction times of concentration are unchanged.
5. Minimize land disturbance including clearing and grading.
e.) The proposed development will only be disturbing what is necessary to remove the existing improvements as well as construct improvements essential to the proposed use.
6. Minimize soil compaction.
f.) The proposed development will require adequate compaction within the parking and building areas. All vegetative areas will be constructed with minimal soil compaction.
7. Provide low maintenance landscaping that encourages retention and planting of native vegetation and minimizes use of lawns, fertilizers and pesticides.
g.) Native vegetation is proposed as part of the development.
8. Provide vegetated open-channel conveyance systems discharging into and through stable vegetated areas.
h.) Vegetated open-channel conveyance systems are not feasible with the proposed design. Grassed areas have been increased on-site, however, which will enhance downstream stormwater facilities through a reduction in surface runoff.
9. Provide preventative source controls to prevent or minimize the use or exposure of pollutants at the site in order to prevent or minimize the release of the pollutants into stormwater runoff.
i.) Preventative source controls (i.e. cleaning of storm inlets) will be utilized on-site to prevent the migration of pollutants into stormwater runoff.
HC130 also prepared a matrix, known as the Nonstructural Strategies Point System (NSPS), which demonstrated that it satisfied the "maximum extent practicable" requirement. DEP informally promulgated the NSPS as a means of determining whether a developer is exempt from implementing nonstructural stormwater management strategies under DEP's stormwater regulations. See In re Authorization for Freshwater Wetlands Statewide General Permit 6 (In re Authorization), 433 N.J. Super. 385, 410-12 (App. Div. 2013) (describing the informal adoption of the NSPS). Lai testified that he reviewed the matrix as part of his analysis.
HC130 also proposed to enhance the structural stormwater system that served the entire property. It proposed to do so by installing new discharge control valves that it contended would provide water quality benefits.
The Planning Board conducted public hearings on July 11 and July 25, 2013. In addition to Gallagher, HC130 presented testimony from a professional planner, and a traffic expert. The Board heard testimony from the Township's planner; an outside traffic expert; and its outside environmental engineer (Lai). The Township's engineer, Richard S. Williams, was also present and responded to inquiries from the Board.
Lai was employed by consultants Banc3, Inc., which submitted a June 17, 2013 written report to the Board, which the Board considered and made a part of the record.
RUPE's counsel appeared at the second day of hearings, and presented the testimony of its own traffic expert. Counsel was permitted to cross-examine witnesses who previously testified. In particular, she cross-examined Gallagher, Williams and Lai regarding stormwater issues.
Although the Board focused considerable attention on traffic issues, as did RUPE, they are not before us on appeal.
On September 12, 2013, the Planning Board issued its Resolution of Memorialization (the Resolution) granting HC130 conditional use approval, amended preliminary and final site plan approval and waivers. The Board identified the documentary submissions, including the Gallagher-Maser Consulting report and the Lai-Banc3 report, and stated the Board had reviewed them. The Board also extensively summarized the testimony at the hearings, and found the testimony of the applicant's experts to be credible. With regard to stormwater management issues, the Board found:
4. The Phase II stormwater regulations and the stormwater management design requirements set forth in Hamilton Township Ordinance, Chapter 158 "Stormwater
Control," Chapter 160 "Land Development," and Section 160-113 "Stormwater Management" have been satisfied by the Applicant.
5. Since the Applicant is not creating more than one-quarter acre of impervious surface, the Phase II stormwater regulations are not applicable. Notwithstanding the nonapplicability of the Phase II stormwater regulations, the Applicant, at the request of the Township Engineer, Richard S. Williams, as well as the Applicant's desire to be a good citizen has reviewed the entire 6.4 acres (including the 1.5 acres being developed) as it relates to compliance with the New Jersey Department of Environmental Protection Phase II Stormwater Regulations. As a result of the Applicant's efforts, the entire 6.4 acre site (including the 1.5 acres being disturbed by the Applicant) meet or exceed all of the Phase II stormwater regulations. The Applicant is providing in excess of the required fifty percent (50%) reduction of the two-year storm; in excess of the required seventy-five percent (75%) reduction of the ten-year storm; and the Applicant meets the eighty percent (80%) reduction for the 100-year storm.
6. The Applicant has addressed the low impact requirements of the Phase II quality stormwater regulations, prepared the DEP non-structural point system spreadsheet and exceeded the required point totals; and the Applicant's proposal significantly decreases the impervious surface on the site from what had been previously approved for the site.
. . . .
8. The Board finds that the proposed Project will not have an adverse environmental impact but, rather, the
project will have the following positive impacts.
a. proposed Project will take place in a location where proper facilities and services currently exist;
b. reduction in impervious surface from what had previously been approved for this site;
c. the proposed Project will exceed the required fifty percent (50%) reduction of the two-year storm, in excess of the required seventy-five percent (75%) reduction for the ten-year storm, and meets the eighty percent (80%) reduction for the 100-year storm.
d. even though not required, the Applicant is complying with Phase II stormwater regulations;
e. use of state-of-the-art fuel storage system that exceeds all State and Federal regulations including an industry standard vapor recovery system which will recover any vapors that may escape during actual fueling process.
On October 24, 2013, RUPE filed a complaint in lieu of prerogative writs, challenging the Board's decision. RUPE argued that the Board improperly relied on the NSPS, citing our decision in In re Authorization, supra. We held that DEP was required to adopt the NSPS by formal rulemaking, pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-2(e), and caselaw, including Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 333 (1984). In re Authorization, supra, 433 N.J. Super. at 410-15. RUPE also contended that HC130 failed to demonstrate why it could not utilize nonstructural stormwater management measures to the maximum extent practicable; there was insufficient evidence to support the Board's finding that HC130 would add less than one-quarter acre of impervious surface; the Board relied on net opinions; and the proximity ordinance still governed the application, requiring the ZBA to hear it, instead of the Board. Judge Mary C. Jacobson rejected each argument in a comprehensive oral opinion.
RUPE renews these arguments on appeal.
II.
Our standard of review is well-settled. We apply the same standard as the trial court in reviewing a planning board's determination. Fallone Props., L.L.C. v. Bethlehem Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). We afford substantial deference to the board's findings of fact, so long as they are grounded in evidence in the record. Ibid. See also New Brunswick Cellular Tel. Co. v. S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999) (stating the court must determine whether the "board decision is supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion.") (internal quotation marks and citation omitted). Although we give weight to a board's knowledge of local circumstances if pertinent, we review de novo a board's conclusions of law, including its interpretation of an ordinance. Bubis v. Kassin, 184 N.J. 612, 627 (2005) ("[T]he meaning of an ordinance's language is a question of law that we review de novo."); Wyzykowksi v. Rizas, 132 N.J. 509, 518 (1993).
III.
RUPE's principal challenge to the court's dismissal of its complaint pertains to HC130's compliance with stormwater regulations. RUPE asserts the Board relied on net opinions. RUPE contends there was insufficient evidence to support the Board's finding that the project would add less than one-quarter acre of impervious surface. RUPE also argues the Board's decision is invalid because it determined compliance with the Township's stormwater ordinance by relying on the NSPS, which RUPE argued was contrary to our holding in In re Authorization, supra. We are unpersuaded.
We turn first to the argument pertaining to net opinions. "The net opinion rule is a corollary of N.J.R.E. 703 . . . which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data." Townsend v. Pierre, 221 N.J. 36, 53-54 (2015) (internal quotation marks and citation omitted). Although the net opinion is grounded in our rules of evidence, the rules of evidence do not apply to planning board hearings. N.J.S.A. 40:55D-10(e) ("Technical rules of evidence shall not be applicable to the hearing" of a municipal land use agency). See Concerned Citizens of Princeton, Inc. v. Borough of Princeton, 370 N.J. Super. 429, 450, 463 (App. Div.) (citing N.J.S.A. 40:55D-10(e) in rejecting challenge to planning board's reliance on expert report, which appellant contended was a net opinion, noting that board decision met substantial-evidence test), certif. denied, 182 N.J. 139 (2004).
Nonetheless, our Court has overturned a municipal board decision that relied on unsubstantiated net opinion. New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 16 (1999) (holding that board erred in relying on an opinion that lacked supporting studies or data, contradicted the master plan, and "was tantamount to a net opinion that could not reasonably support the Board's finding"); Clifton Bd. of Educ. v. Clifton City Zoning Bd. of Adjustment, 409 N.J. Super. 389, 435 (App. Div. 2009).
We conclude that a board is restricted from relying on net opinion not because the Rules of Evidence govern, but because unsubstantiated expert testimony, or net opinion, may be unhelpful to a factfinder. See Townsend, supra, 221 N.J. at 55 ("[U]nsubstantiated expert testimony cannot provide to the factfinder the benefit that N.J.R.E. 702 envisions: a qualified specialist's reliable analysis of an issue beyond the ken of the average juror.") (internal citation omitted). In dispensing with application of technical rules of evidence, the MLUL recognizes the informal nature of planning board hearings. See Baghdikian v. Bd. of Adjustment 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 land use board). Consequently, the question presented is not whether the opinions of the experts were admissible pursuant to N.J.R.E. 703, and strict application of the "net opinion rule"; the question is whether the opinions were sufficiently supported by data and other evidence, so that reliance on the opinions was 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. RUPE focuses on two conclusions of HC130's experts, which were affirmed by the Board's experts: (1) that the development would add less than one-quarter acre of impervious surface to the property; and (2) even if nonstructural stormwater management measures for water quality were applicable, HC130 implemented them to the maximum extent practicable.
As for the quarter-acre issue, we are satisfied that Gallagher presented sufficient data and evidence to support his conclusion. He presented detailed calculations indicating the total impervious area — before and after the redevelopment — within designated "catchment" areas totaling 6.1 of the 6.4 acre site. These calculations demonstrated that the total existing impervious area within this analyzed area was 4.550 acres, which would essentially remain unchanged.
According to one set of calculations, the "before" calculation was 4.550 acres, and the "after" calculation was 4.549 acres. On the other hand, the total area studied varied slightly — 6.105 acres and 6.1 acres. We consider these differences to be de minimus.
RUPE contends that these calculations should have been rejected because Gallagher did not "show his work," and the area studied was .3 acres less than the area of the total site. We are unpersuaded. We recognize that Gallagher did not include underlying measurements of specific rooftops and paved parking areas. As Lai testified, a computer program was utilized to obtain these calculations.
RUPE also cites an isolated comment by Township planner Williams, who stated, in response to a question from RUPE's counsel, that the less-than-quarter-acre increase was based on a comparison of the proposed development with the Rite-Aid proposal, as opposed to the existing development. We are satisfied that this was a misstatement, particularly in view of the drainage area maps accompanying Gallagher's report, which depicts existing development.
Although it would have been preferable for Gallagher to have identified the program utilized, no alternative calculations were proposed by RUPE, and Gallagher's calculations were subject to visual verification by viewing site maps, according to Lai. HC130 submitted, and the Board considered, site plans and surveys that are not of record before us. We note that an aerial depiction of the site with the proposed development superimposed, which is of record, reflects a substantial proposed planted area along the frontage of both highways. We also assume that the Board members, as residents of the Township, are familiar with the site, and the existing distribution of buildings and impervious area, and relied upon that knowledge in assessing the credibility of Gallagher's testimony. See Baghdikian, supra, 247 N.J. Super. at 50 (recognizing that board members may bring to bear their general knowledge of local conditions).
RUPE also contends that the opinions of the Board's own experts were inadmissible net opinions. RUPE's argument highlights the inappropriateness of simply importing the net opinion rule into planning board hearings in which "technical rules of evidence" do not apply. N.J.S.A. 40:55D-10(e). We recognize that, in practice, land use board members will often seek the input of permanent municipal staff, and the board's own outside experts, to "translate" technical evidence or testimony, and to provide their own opinions regarding the validity of contentions presented. While bald conclusions of such professionals may not be the sole basis for a board decision, because it would not be based on sufficient credible evidence, we do not conceive that such professionals must preface every response with an expert report containing the details one would expect of a testimonial expert in a court proceeding. "It must be kept in mind that boards are composed of laymen, and the prescribed pattern of the administrative proceeding is a general and flexible one, adaptable to the particular case." Baghdikian, supra, 247 N.J. Super. at 49 (internal quotation marks and citation omitted). In this case, as pertained to the no-quarter-acre-increase determination, the Board was allowed to rely on Lai's explanation that, at the behest of the Board, he reviewed Gallagher's calculations, compared them to the maps, and concluded they "ma[de] sense."
RUPE also relies on an apparent discrepancy in the total acreage of the property. HC130's application, and Gallagher's report, stated that the site totaled 6.4 acres, yet the total runoff areas analyzed totaled 6.1 acres. RUPE contends the "missing" .3 acres undermines the reliability of Gallagher's calculation of no net quarter-acre increase in impervious area. We reject this argument. First, it is apparent from the drainage area maps attached to Gallagher's report that there are areas within the block and lot, but outside the catchment areas. These areas are depicted the same in the existing drainage area map, and proposed drainage area map. We are satisfied that the "missing" .3 acres does not undermine the Board's finding.
We also take notice, pursuant to N.J.R.E. 202(b) and N.J.R.E. 201, of the Hamilton Township property tax map, which depicts the four lots, 139, 140, 141 and 142, which were consolidated into lot 142. See http://njgin.state.nj.us/oit/gis/NJ_TaxListSearch/ (last visited November 4, 2015). Comparing the tax map to the drainage maps supports our conclusion that there are substantial areas within the 6.4 acre lot that were excluded from the 6.1 acres of drainage area in Gallagher's "before" and "after" studies. --------
Even if HC130 were required to consider non-structural stormwater management measures for water quality to the maximum extent practicable, we are satisfied that there was sufficient evidence to support the Board's finding that HC130 complied. The Board found that HC130 "address[ed] the low impact requirements of the Phase II quality stormwater regulations." Also, the Board considered the NSPS matrix that HC130 prepared, and found that HC130 "exceeded the required point total." We reject RUPE's argument that the Board inappropriately considered Gallagher's analysis of the nine measures because it was a net opinion. Although sparing in his language, Gallagher provided the "why and wherefore" in support of the view that further additional nonstructural measures were not feasible.
RUPE also misplaces reliance on our decision in In re Authorization, supra, for the proposition that the Board was prohibited from considering the NSPS matrix. There, we held that DEP, a State agency, N.J.S.A. 52:14B-2(a), was required to follow the administrative rule-making requirements set forth in the APA before implementing the NSPS. In re Authorization, supra, 433 N.J. Super. at 413. We applied the six-factor test, established in Metromedia, supra, 97 N.J. at 331-32, for determining when an agency had to comply with formal rulemaking under the APA. In re Authorization, supra, 433 N.J. Super. at 414.
Simply put, at issue here is not the implementation of a rule by an agency subject to the APA. At issue is a municipality's consideration of a device in assessing compliance with its own ordinance.
The Board considered the HC130's NSPS score evidential. However, it was not arbitrary or unreasonable for the Board to utilize the tool. DEP had informally promulgated use of the NSPS in the context of considering the Freshwater Wetlands Protection Act permit, id. at 408-09, and formally adopted its use in the context of reviews of stormwater runoff and water quality impact reviews for the Delaware and Raritan Canal State Park. N.J.A.C. 7:45-8.2. We did not address the substantive value of the NSPS as an "evaluative tool" in In re Authorization, id. at 416 n.12, nor do we do so here, in the absence of any evidence in the record.
In sum, we reject RUPE's challenge to the Board's determination that HC130 complied with the Township's stormwater management ordinance.
IV.
Finally, we briefly address RUPE's argument that HC130 was governed by the proximity ordinance that was in effect when it first filed its application with the ZBA; and consequently, the Planning Board lacked jurisdiction to consider HC130's application.
We are unpersuaded. At issue is the "time of application rule," adopted as L. 2010, c. 9, § 1 (codified at N.J.S.A. 40:55D-10.5), to provide that development applications are generally governed by regulations in place when the application is submitted:
Notwithstanding 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. Any provisions of an ordinance, except those relating to health and public safety, that are adopted subsequent to the date of submission of an application for development, shall not be applicable to that application for development.The legislation was intended to shield developers from the sometimes harsh consequences of the then applicable "time of decision rule," which generally subjected developers to changes in law adopted after they submitted their applications, sometimes in direct response to their proposals. See Assembly Housing and Local Government Committee Statement to Assembly Bill No. 437 at 2 (March 4, 2010) (noting that the time of decision rule "sometimes causes inequitable results, such as when an applicant has expended considerable amounts of money for professional services and documentation that become unusable after the ordinance has been amended"); see also Kruvant v. Twp. of Cedar Grove, 82 N.J. 435, 442-43 (1980) (describing "time of decision rule" and exceptions to it); Dinizo v. Planning Bd. of Town of Westfield, 312 N.J. Super. 225, 231-32 (Ch. Div. 1998) (advocating relief from sometimes harsh consequences of time of decision rule).
[N. J.S.A. 40:55D-10.5.]
In this case, ironically, the change in law — specifically, the repeal of the proximity ordinance — favored the developer. There is nothing in the law that prevents a developer, in such circumstances, from withdrawing a development application, to avail itself of the favorable change in law. Indeed, commentators anticipated just such an outcome under the law. See William M. Cox and Stuart R. Koenig, New Jersey Zoning & Land Use Administration § 19-3.5 at 402 (2015) (stating that where municipalities amend an ordinance "during development applications to assist developers," the developer will be "required to resubmit a new application for development and start the process over"). That is what HC130 did. In its May 1, 2013 letter to the Township, its counsel withdrew the application pending before the ZBA, and requested that it be deemed refiled before the Planning Board the day after the repeal ordinance became effective. HC130 was permitted to do so. Indeed, to lock a developer into a prior unfavorable law, and deny it the benefit of a favorable change, would be contrary to the Legislature's expressed purpose to ease burdens on development applicants. In sum, HC130's application was governed by the new law, and, as a variance from the ZBA was not required, the Planning Board had jurisdiction.
To the extent not otherwise addressed, RUPE's remaining arguments lack 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