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Klug v. Bridgewater Township Planning Board

May 1, 2009

STEVEN KLUG AND BRUCE LICAUSI, PLAINTIFFS-APPELLANTS,
v.
BRIDGEWATER TOWNSHIP PLANNING BOARD, TOWNSHIP COMMITTEE OF BRIDGEWATER TOWNSHIP, BRIDGEWATER TOWNSHIP, SHERID, INC., AND BERNARD AND SUSAN FRIEDMAN, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-427-06.

The opinion of the court was delivered by: Simonelli, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

APPROVED FOR PUBLICATION

Argued: January 5, 2009

Before Judges R. B. Coleman, Sabatino and Simonelli.

Plaintiffs Steven Klug and Bruce Licausi appeal the grant of preliminary major subdivision approval by defendant Bridgewater Township Planning Board (Board) to defendant Sherid, Inc. (Sherid) for eight residential lots on land owned by defendants Bernard and Susan Friedman, principals of Sherid. Plaintiffs are neighboring landowners who oppose the project. We affirm.

The following facts are relevant to this appeal. In January 2000, Sherid applied for a nine-lot subdivision on a 12.46 acre tract located in the R-40 zone (the property). Sherid submitted with the application an Environmental Impact Statement, dated September 2000 (the 2000 EIS), prepared by Scarlett Doyle (Doyle).

The Board held public hearings on November 14, 2000 and February 13, 2001. At the conclusion of the last hearing, Sherid's attorney requested a continuance so as to address various concerns raised during the hearings. The Board granted the request.

On or about October 16, 2002, Sherid received a letter from the New Jersey Department of Environmental Protection (NJDEP) advising that wetlands of "intermediate resource value" existed on the property. As a result, on or about December 13, 2002, Sherid submitted a revised application for an eight-lot subdivision instead of nine lots.

The Board began public hearings on the revised application on April 8, 2003. At the outset of the hearing, the Board's attorney stated on the record that the Board "will consider [the revised application] a new application, without relying on any of the testimony that was submitted before." The Board held another hearing on July 28, 2003.

In or about late September 2003, the Township appointed Doyle as Township Planner. On October 10, 2003, Doyle, in her capacity as Township Planner, prepared a memorandum regarding the new application (the October 2003 memo), which she sent to the Board's chairman. The October 2003 memo did not reach the merits of the new application. It only outlined certain planning issues and recommended certain conditions for approval of the new application.

The hearings continued on October 14 and November 24, 2003. Doyle attended the hearings as the Township Planner, but did not participate. During the hearings, witnesses unconnected to Doyle or her firm testified for Sherid, including a licensed professional engineer, who testified about engineering aspects of the application; a licensed land survey and professional engineer, who testified about the surveying and engineering aspects of the application; and a professor of civil and environmental engineering, who provided expert testimony on drainage, the hydraulics of the application, and soil aspects. An expert licensed professional engineer specializing in environmental and wetlands matters testified for plaintiffs. The Board approved the new application on November 24, 2003 (the November 2003 approval), and memorialized its approval in a resolution dated December 17, 2003.

Plaintiffs filed a complaint in lieu of prerogative writs in the Law Division challenging the Board's decision. After a bench trial, Judge Reed found that the revised application was a new application, which complied with all applicable zoning ordinances and did not require a variance or waiver. Accordingly, the judge concluded that the Board's exercise of discretion was limited and that Sherid was entitled to approval. In a written opinion, the judge stated:

The application was compliant with the applicable [zoning] ordinance; the Board made appropriate findings (albeit in opposition to [plaintiffs'] conclusions) based on the evidence, in the exercise of its allowable discretion which findings are entitled to deference; the Board heard and considered [plaintiffs'] objections (which caused the applicant to revise its application) and conducted these proceedings in accordance with the ...


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