Opinion
DOCKET NO. A-2705-11T2
05-03-2013
HILLSBOROUGH PROPERTIES, LLC, Plaintiff-Appellant, v. TOWNSHIP COMMITTEE OF THE TOWNSHIP OF HILLSBOROUGH and PLANNING BOARD OF THE TOWNSHIP OF HILLSBOROUGH, Defendants-Respondents.
Stephen M. Eisdorfer argued the cause for appellant (Hill Wallack, LLP, attorneys; Mr. Eisdorfer, of counsel; Kenneth E. Meiser, on the brief). Eric M. Bernstein argued the cause for respondents (Eric M. Bernstein & Associates, LLC, attorneys; Mr. Bernstein, of counsel; Wendy L. Wiebalk, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Harris, and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-0614-08.
Stephen M. Eisdorfer argued the cause for appellant (Hill Wallack, LLP, attorneys; Mr. Eisdorfer, of counsel; Kenneth E. Meiser, on the brief).
Eric M. Bernstein argued the cause for respondents (Eric M. Bernstein & Associates, LLC, attorneys; Mr. Bernstein, of counsel; Wendy L. Wiebalk, of counsel and on the brief). PER CURIAM
Plaintiff Hillsborough Properties, LLC, appeals from a December 22, 2011 final judgment of the Law Division, which dismissed with prejudice its action in lieu of prerogative writs. The dismissed complaint challenged — as applied — defendant Township of Hillsborough's Economic Development zoning district. Upon review of the arguments raised on appeal, we affirm, substantially for the reasons set forth by Judge Peter A. Buchsbaum in his comprehensive fifty-nine-page written opinion. We add the following brief comments.
The order states, in relevant part, "The court sustains §188-12 governing the Economic Development District in Hillsborough Township and dismisses the complaint with prejudice." It appears that the correct legislative reference should have been to Code of the Township of Hillsborough §188-112, and the discrepancy resulted from a typographical error. Similarly, the reference in the order, not under appeal, to §188-12E(7)(a) should have been to §188-112E(7)(a).
Plaintiff owns approximately 335 acres in Hillsborough, of which the zoning of 308 acres is in dispute. The land had once been the site of the Belle Mead Army Depot, which ceased operations long before plaintiff acquired the property. Although plaintiff came into title in 2003, the land's zoning regulations in effect since 1988 permit office use, corporate centers, restaurants, theaters, recreational facilities, hotels, medical centers, and other related uses. Residential uses are not permitted.
During the nine-day trial, plaintiff contended that the land use regulations of the Economic Development zoning district rendered its land inutile. The Township's proofs were to the contrary. Judge Buchsbaum considered all of the testimonial and documentary evidence, and despite the "sharply different conclusions drawn by the respective planning and other experts," he concluded that "plaintiff has simply failed to show that the zoning is irrational and non-implementable given the justifications offered for it." Moreover, he found that
much of plaintiff's case depends on the alleged lack of market for the zoned use. This argument requires a far higher degree of proof than was elicited here. Ordinances cannot be valid one day when the market is good and then suddenly become invalid when the market turns sour.
On appeal, plaintiff contends, among other things, that "there is no credible evidence supporting the reasonableness" of the challenged zoning district. It further argues that Judge Buchsbaum's acceptance and use of the Township's expert opinion was erroneous because it was not credible and violated the net opinion doctrine. Furthermore, plaintiff avers that its experts demonstrated that the "physical characteristics of [plaintiff's] [p]roperty were clearly unsuitable for the particular uses in the [Economic Development] [z]one." Finally, plaintiff insists — relying on Kruvant v. Cedar Grove, 82 N.J. 435 (1980) — that its property must be rezoned to include some residential housing.
Kruvant did not order the municipality to rezone any property for residential use. Instead, because the municipality had failed to adequately revise the zoning for the plaintiff's property after eight years of litigation and a fourth trial addressed to a third zoning amendment, the Supreme Court ordered the approval of a use variance for sixty-one garden apartment units in a one-family zone. Id. at 445.
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We are thoroughly satisfied that Judge Buchsbaum addressed plaintiff's grievances completely, conscientiously, and competently. He faithfully applied our state's well-established land use jurisprudence in resolving this contentious dispute, and we perceive no reason to intervene.
We, like Judge Buchsbaum, start with the judiciary's limited scope of review of presumptively valid municipal legislation:
An ordinance is not invalid simply because it is imperfect or "'because it could have done more to combat the evils [that] it seeks to address.'" Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 451, (1980) (quoting Hudson Circle Servicenter [v. Town of Kearny, 70 N.J. 289, 316 (1976)]; accord In re C.V.S. Pharmacy Wayne, 116 N.J. 490, 498 (1989), cert. denied, 493 U.S. 1045, 110 S. Ct. 841, 107 L. Ed. 2d 836 (1990). We do not pass on the wisdom of an ordinance; that is a matter "that is exclusively a legislative function." Pheasant Bridge Corp. [v. Twp. of Warren], 169 N.J. 282, 290 (2001), cert. denied, 535 U.S. 1077, 122 S. Ct. 1959, 152 L. Ed. 2d 1020 (2002); (citing Home Builders League of S. Jersey, Inc. v. Twp. of Berlin, 81 N.J. 127, 137 (1979)).There was ample evidence in the extensive record generated by parties to support Judge Buchsbaum's conclusion that plaintiff's proofs did not surmount the formidable threshold of demonstrating the arbitrariness, capriciousness, or unreasonableness of the Township's zoning decision. See Dock St. Seafood, Inc. v. City of Wildwood, 427 N.J. Super. 189, 201 (Law Div. 2011), aff'd, 425 N.J. Super. 590 (App. Div. 2012)
[Berk Cohen Assocs. at Rustic Village, LLC v. Borough of Clayton, 199 N.J. 432, 446-447 (2009).]
In performing the judicial function of resolving the parties' dispute, Judge Buchsbaum's conclusions about the admissibility and worth of the experts' opinions were discretionary.
We review a judge's decision to admit testimony from an expert "against an abuse of discretion standard." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002))."Absent a clear abuse of that discretion, an appellate court will not interfere with the exercise of that discretion." State v. Harvey, 151 N.J. 117, 201 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).
[Townsend v. Pierre, ____ N.J. Super. ____, _____ (App. Div. 2013) (slip op. at 7)].
Using this standard, we conclude that Judge Buchsbaum's utilization of the Township's expert opinion — that the potential for small scale development in the Economic Development zoning district belied inutility — was not a misuse of discretion. The witness explained her rationale, relied upon objective information in reaching it, and was — in the judge's words — "not only credible, but . . . persuasive on the actual record in this case." These are not the hallmarks of a speculative net opinion. Cf. Pomerantz Paper Corp., supra, 207 N.J. at 373 (noting the expert's opinion was "devoid of any clue as to its basis and lack[ed] any suggestion about the expert's support for the conclusions").
Lastly, we consider plaintiff's Kruvant-based argument entirely meritless. 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