BUILDERS LEAGUE OF SOUTH JERSEY VS. BOROUGH OF HADDONFIELD (L-4632-17, CAMDEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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
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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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