TOWNSHIP OF WEST CALDWELL VS. CARANT LIMITED PARTNERSHIP (L-8796-19, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-3536-19
TOWNSHIP OF WEST
CALDWELL,
Plaintiff-Appellant,
v.
CARANT LIMITED
PARTNERSHIP, and ESSEX
COUNTY CONSTRUCTION
BOARD OF APPEALS,
Defendants-Respondents.
__________________________
Submitted March 3, 2021 – Decided April 16, 2021
Before Judges Fuentes, Whipple, and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-8796-19.
Antonelli Kantor, PC, attorneys for appellant (Daniel
Antonelli, of counsel and on the briefs; Lori D.
Reynolds and Daniel H. Kline, on the briefs).
McKirdy, Riskin, Olson & Della Pelle, PC, attorneys
for respondent Carant Limited Partnership (Richard P.
DeAngelis, of counsel and on the brief).
Courtney M. Gaccione, Essex County Counsel,
attorney for respondent Essex County Construction
Board of Appeals (Thomas M. Bachman, Assistant
Essex County Counsel, of counsel and on the brief).
PER CURIAM
Plaintiff, Township of West Caldwell (Township), appeals from an April
21, 2020 Law Division order, which finalized a February 19, 2020 order denying
its request for relief. The February 19 order allowed the Essex County
Construction Board of Appeals (Essex Board) to transfer defendant, Carant
Limited Partnership's (Carant), appeal to the Passaic County Construction Board
of Appeals (Passaic Board). That order was based on a lack of quorum, as
defined in N.J.A.C. 5:23A-2.2(c), after two Essex Board members recused
themselves from participating in the appeal. We reverse.
In July 2013, the West Caldwell Planning Board approved Carant's land
use application to construct a new 24,170-square-foot building. The Township
and Carant had a "Developer's Agreement" pertaining to the application. Per
this agreement, Carant had to meet certain conditions before the Township
would issue construction permits. In July 2017, a Township construction
official, Robert McLoughlin, denied Carant's permit for development. The
denial explanation stated that Carant failed to meet prior approvals because it
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"deposited undocumented asphalt millings as fill on the site," and any fill placed
on site must be "tested and certified to be free of contaminants."
Carant filed an appeal to the Essex Board. On November 21, 2017, the
Essex Board issued a resolution upholding the Township's denial of Carant's
permit on January 9, 2018. During this time, McLoughlin, who had denied
Carant's permit, became an acting member of the Essex Board and thus recused
himself from acting in respect to the Township-Carant matter, pursuant to
N.J.A.C. 5:23A-1.5(d).
Because the asphalt fill's compliance was at issue, Carant engaged a site
remediation professional, William Canavan of HydroEnvironmental Solutions,
Inc. Canavan tested the millings, and reported no soil contamination, or threat
to human health and the environment. Carant sent a letter to the Township on
April 18, 2018, attaching Canavan's report. Asserting that there was no threat
to public health or the environment, Carant again requested the Township issue
the permits. When the Township declined in May, it told Carant it would have
to review the milling contamination report with its own expert and that Carant's
Soil Erosion Control Certification expired in 2017. Accordingly, Carant
submitted an updated Soil Erosion Control Certification in September. Carant
also requested that the Township's construction official take action on its permit
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application and warned that refusal to do so would result in another appeal to
the Essex Board.
On October 22, 2018, Carant again appealed the Township's denial of the
construction permits to the Essex Board. A second hearing was held before a
five-member Essex Board on December 18, 2018. At that hearing, McLoughlin,
now a member of the Essex Board, recused himself but appeared as a witness in
his capacity as the construction official of the Township.
Carant argues that during the hearing, McLoughlin was unable to
articulate what was necessary for the permit application to be approved. This
led the Essex Board to issue a January 22, 2019 resolution, which required the
Township to provide Carant with a written list of all necessary approvals needed
for issuance of the requested permits.
On January 17, 2019, the Township provided the list of necessary
approvals required for issuance of permits. Carant wrote in response, addressing
each requirement and asserting that no further approvals were necessary for it
to receive permits. In March 2019, the Township wrote to Carant, again denying
Carant's permit request, and dismissing Carant's responses regarding the safety
of the milled asphalt fill.
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On March 27, 2019, Carant filed a third appeal with the Essex Board. In
its letter, Carant requested the Essex Board transfer its appeal to an entirely
different county construction board of appeals, due to a new conflict of interest
within the Essex Board. The conflict arose because, although McLoughlin
recused himself as a member of the Essex Board, he still appeared as a witness
in front of his fellow board members. In response to this transfer request, the
chairman of the Essex Board unilaterally transferred the appeal to the Passaic
Board.
On April 19, the Township sent a letter to the Passaic Board objecting to
the transfer, arguing that Carant's appeal must be heard in the Law Division.
Five days later, the Passaic Board accepted the appeal referral based on a
potential conflict of interest, and it asserted that it had jurisdiction to hear the
appeal. The Passaic Board determined it had jurisdiction because the Essex
Board's resolutions of January 9, 2018, and January 22, 2019, were not final
decisions of Carant's appeal. A hearing was scheduled with the Passaic Board
for May 16, 2019.
Before the May hearing, in response to the transfer, the Township filed an
order to show cause and verified complaint in Essex County Superior Court,
Law Division (OTSC I). The order sought to enjoin the Passaic Board from
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hearing Carant's appeal based on lack of jurisdiction, and the Township argued
there was no conflict of interest with the Essex Board.
On June 10, 2019, the court granted the Township's request for a
preliminary injunction and remanded the matter to the Essex Board to determine
whether a conflict of interest existed and whether a transfer to another county
was warranted. The court decided the Essex Board could only transfer Carant's
appeal upon the determination that a disqualifying conflict existed.
During the OTSC I hearing, the court concluded, as a matter of law,
construction boards of appeals are quasi-judicial bodies, and thus have the
discretion, similar to judicial officers, to avoid appearances of impropriety and
to ensure public confidence in board proceedings. The court cited Kane
Properties, LLC v. City of Hoboken, 214 N.J. 199, 213, 220-23 (2013), and
N.J.A.C. 5:23A-1.5, which the court explained "sets . . . a minimum standard for
resolving a conflict situation." Specifically, the trial court found McLoughlin
was required to recuse himself, even though doing so did not rectify the
situation.
On June 25, 2019, the Essex Board conducted a hearing and found that no
appearance of disqualifying conflict existed that would warrant transfer of the
appeal. Carant did not appeal the Essex Board's decision. On July 5, 2019, the
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trial court permanently restrained the Passaic Board from hearing Carant's
appeal and ordered that Carant's appeal be heard by the Essex Board.
At the next hearing in July 2019, four Essex Board members heard
Carant's appeal. Two members, including McLoughlin, recused themselves due
to conflicts. Carant raised no objection during the meeting, nor did it request an
adjournment of the hearing despite not having a full five-member board present.
Carant claimed it did not seek judicial review of the Essex Board's decision to
retain jurisdiction because "its conflict claim was preserved and could be raised
on appeal to the Superior Court . . . ." During this hearing, testimony was taken,
but not completed, and the Essex Board chose to adjourn to September amid
concerns about time and vacations. The remainder of Carant's appeal was
scheduled to continue on September 10, 2019.
At the September Essex Board meeting, again, only four members were
available to hear Carant's appeal. Carant sought to adjourn the hearing because
of the inability to be heard by a five-member board, and the appeal was
rescheduled to October 15, 2019. Carant also renewed its request to transfer the
appeal to another county due to the conflicts. The Essex Board reserved on the
transfer request and carried the matter to its next meeting.
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In October, only a three-member Essex Board was available to hear
Carant's appeal. Carant again refused to have the matter heard by less than a
full five-member board and requested to transfer the appeal to another county
construction board of appeals. The Essex Board approved the transfer of
Carant's appeal.
The Township objected to the transfer because the Essex Board had
already taken testimony in this matter. Nonetheless, the Essex Board transferred
Carant's appeal out of concern for the ongoing difficulty of assembling five of
its members to hear the appeal, in light of the continuing recusal of two of its
members, and the length of time for which the matter had been pending. In its
resolution following the October meeting, the Essex Board unanimously
transferred the appeal to another county construction board of appeals, with a
preference for the Morris County Construction Board of Appeals (Morris
Board).
Before Carant's appeal could be heard, the Morris Board cited an existing
conflict and referred the appeal back to the Essex Board. In a November 21,
2019 email, Carant and the Essex Board expressed shared plans to transfer the
matter to another county construction board of appeals. The Essex Board
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informed Carant that the Bergen County Construction Board of Appeals (Bergen
Board) agreed to hear the appeal.
On December 2, 2019, the Township filed a second order to show cause
and verified complaint in the Law Division (OTSC II), seeking a stay of further
appeals, and to enjoin any further transfer of Carant's appeal. Ostensibly, upon
learning of the Township's lawsuit, the Bergen Board put off consideration of
Carant's appeal until after the court heard the Township's complaint under OTSC
II. Carant and the Essex Board opposed OTSC II, which was heard before the
court on February 5, 2020. The judge found that the Essex Board's inability to
have five members present was due to the recusal of the two conflict-affected
members, and he found "there is consider[able] doubt about the [Essex] Board's
ability to conduct any [h]earing in this matter, let alone a fair one in the
foreseeable future."
Further, the trial court stated the Township's assertion that the Essex
Board's decision to transfer the appeal was "unrelated to or not prompted by the
disqualifying conflict of two of its [m]embers" is "contrary to the record and the
Board's explicit findings and the reality of the circumstances that are now
extant." The Board has valid discretion and a duty, the court stated, based on
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its "statutory function, as a [q]uasi-[j]udicial body, and its concomitant
obligation to ensure public confidence of its decision making."
In its February 19, 2020 order, the court denied the Township's request
for relief and affirmed the Essex Board's transfer of Carant's appeal to another
county construction board of appeals. The court held that the decision to transfer
the appeal was within the Essex Board's discretion and entered an order on April
21, 2020, finalizing the February 19, 2020 order. This appeal followed.
When construing a law, we utilize the de novo standard of review and do
not accord any special deference to the trial court's interpretation of law.
Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366,
378 (1995) ("A trial court's interpretation of the law and the legal consequences
that flow from established facts are not entitled to any special deference.").
We agree with the Township that Carant's appeal should have been heard
in the Law Division rather than transferred. Based on our review of the relevant
sections of the administrative code, we conclude the regulatory scheme codified
in N.J.A.C. 5:23A-2.1 to -2.4 does not authorize the county construction boards
of appeals to transfer a pending appeal to another county due to a lack of
quorum.
N.J.A.C. 5:23A-2.2(c) provides:
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[W]hen there are not five regular and/or alternate
members present to consider an appeal . . . either party
shall be entitled to have the hearing adjourned. If
neither party requests an adjournment, the case may be
heard by the board if a quorum is present.
By using the mandatory "shall" and permissive "may" in N.J.A.C. 5:23A-
2.2(c), the Legislature provided the exclusive remedies for when a county
construction board has fewer than five board members to hear an appeal. Such
remedies are limited to: (i) a mandatory adjournment or (ii) a continuation of
the hearing before the construction board, provided neither party requested an
adjournment and a quorum is present. The language of N.J.A.C. 5:23A-2.2(c)
simply does not allow for the transfer of an appeal to another county
construction board of appeals for this reason.
N.J.A.C. 5:23A-2.3(a), titled "Board decisions," clearly states:
Except as otherwise provided in (b) below, the
construction board of appeals shall hear any appeal,
render a decision thereon, and file its decision with a
statement of the reasons therefore with the enforcing
agency or . . . with the municipality or approving
authority or municipal utilities authority or sewerage
authority, not later than [ten] business days following
submission of the appeal.
Next, N.J.A.C. 5:23A-2.3(b) provides that with the consent of the
applicant, "the period of time for the board to issue its decision may be extended
beyond [ten] business days; provided, however, that in any case involving issues
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affecting life safety in an occupied building, any such extension shall also
require the consent of the local enforcing agency." However, "[f]ailure by the
board to hear an appeal and render and file a decision thereon within the time
limits prescribed in this section shall be deemed to be a denial of the appeal."
N.J.A.C. 5:23A-2.3(c).
After exhausting its administrative remedies by securing a denial from the
Essex Board, Carant should have appealed the Township construction official's
decision to the Law Division in an action in lieu of prerogative writs under Rule
4:69-6, rather than the Essex Board transferring the matter to yet another county
construction board of appeals.
Reversed. We do not retain jurisdiction.
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