SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2487-16T2

LOUIS BADUINI and

JOEL SCHNETZER,

Plaintiffs-Appellants,

v.

LAND USE BOARD OF INDEPENDENCE

TOWNSHIP, ROE'S ISLAND, LLC and

AMY S. GREENE ENVIRONMENTAL

CONSULTANTS, INC.,

Defendants-Respondents.

____________________________________

Argued May 15, 2018 – Decided July 31, 2018

Before Judges Fasciale, Sumners and Natali.

On appeal from Superior Court of New Jersey, 

Law Division, Warren County, Docket No. 

L-0334-15.

Lawrence P. Cohen argued the cause for 

appellants (Lavery, Selvaggi, Abromitis & 

Cohen, PC, attorneys; Lawrence P. Cohen, of 

counsel and on the briefs; William H. Pandos, 

on the briefs).

Thomas J. Trautner, Jr., argued the cause for 

respondents Roe's Island, LLC and Amy S. 

Greene Environmental Consultants, Inc.

(Chiesa, Shahinian & Giantomasi, PC, 

NOT FOR PUBLICATION WITHOUT THE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.
2 A-2487-16T2

attorneys; Thomas J. Trautner, Jr. and Lauren 

R. Tardanico, on the brief).

Eric M. Bernstein argued the cause for 

respondent Land Use Board of Independence

Township (Eric M. Bernstein & Associates, LLC,

attorneys, joins in the brief of respondents

Roe's Island, LLC and Amy S. Green 

Environmental Consultants, Inc.).

PER CURIAM

Plaintiffs Louis Baduini and Joel Schnetzer appeal from a Law 

Division order dismissing their action in lieu of prerogative 

writs to invalidate the decision by Independence Township Land Use 

Board (Board) that the wetlands mitigation project (the project) 

proposed by defendants Roes Island, LLC, and Amy S. Greene 

Environmental Consultants, Inc. (Amy S. Greene) (collectively 

defendants) is permitted in an agricultural residential zone (AR 

zone). We affirm.

Roes Island is the owner of an eighteen-acre tract of land 

(the property) located in Independence Township that is part of a 

larger parcel of approximately fifty-one acres, of which parts are 

located in Liberty Township. Amy S. Greene, a member and affiliate 

of Roes Island, is an environmental consulting firm with an 

expertise in wetlands restoration and enhancement.

Public Service Electric & Gas Company (PSE&G), seeking to 

fulfill to its state-mandated obligations to undergo wetlands 

mitigation to create or enhance existing wetlands as compensation 
3 A-2487-16T2

for its disturbance of wetlands in the other areas of the state, 

entered into an agreement with Roes Island to perform wetlands 

mitigation responsibilities on behalf of PSE&G at the property. 

At one time, the property may have been considered wetlands, but 

it had been drained and converted for agricultural use some time 

ago. Under the project, wetlands would be restored by plowing; 

planting trees in close proximity to existing streams and ditches; 

allowing a return to its natural state of forested wetlands with

permanent stabilization of the area with native grasses, 

wildflowers, trees and shrubs; installation of a temporary deer 

exclusion fence to protect plants; the maintenance of bee hives

for the commercial sale of honey; and the filling of secondary 

ditches on the property. A portion of the property is permanently 

conserved through a deed restriction, and there will be no 

permanent structures built thereon.

Based upon the advice of the Independence Township Land Use 

Officer, Amy S. Greene submitted an application on behalf of Roes 

Island to the Board seeking an interpretation of the township's

land use ordinance Section 255-98 (the ordinance): to determine 

if the project was within ordinance's definition of "customary 

agricultural and horticultural uses" in an AR zone. The ordinance 

prescribes the following principle uses in an AR zone:

(1) One-family dwellings.
4 A-2487-16T2

(2) Customary agricultural and horticultural 

uses, including farms, greenhouses and 

nurseries, and including such shelter as may 

be required for seasonal farm labor. 

Customary agricultural and horticultural uses 

shall include the raising, hauling or sale of 

feed or bedding customarily used in a farming 

operation and the retail sale of farm 

products.

(3) Soil processing and soil removal, provided 

that the provisions of the Earth Removal

Ordinance of the Township of Independence[] are 

complied with.

[Independence Twp., N.J., Land Dev. Ordinance 

§255-98(A) (1979).]

In the alternative, the application sought a use variance for the 

project.

During the course of four diverse hearing dates over a fivemonth period, defendants provided detailed testimony – regarding 

the scope and benefits of the project – by Amy S. Greene's 

principal, a wetlands scientist; a professional planner; an expert 

in the field of wetlands science, wetland hydrology, botany, and 

forestry; a licensed civil engineer; and a wildlife biology expert. 

At the Board's request, the Warren County Mosquito Commission 

Superintendent testified regarding the commission's thoughts 

concerning the best methods for the way the project can reduce 

mosquitoes. In addition, Schnetzer, a self-proclaimed potential 
5 A-2487-16T2

landowner in Independence Township, appeared before the Board.

1 

He objected to the application; commenting on his belief that 

farmland would be lost due to a deed restriction on the property, 

and questioning defendants' witnesses about how the project was 

akin to agriculture and how the project would be monitored.

After all witnesses testified, the Board went into executive 

session upon the advice of its attorney, to discuss potential 

litigation and attorney-client privilege under the Open Public 

Meetings Act (OPMA), N.J.S.A. 10:4-12(b). Upon return to public 

session, the Board determined that the project constituted an 

agricultural use as set forth in the ordinance. The Board Chairman 

further noted that wetland mitigation or wetland enhancement would 

not in and of itself be considered "agriculture" in order to 

support a favorable interpretation for the project but as an 

element of other agricultural uses proposed as part of the overall 

use of the property; therefore, the enhancement of wetlands and 

any associated mitigation is permitted. Other "use" and "accessory 

use" are defined in Section 255-3 as:

USE: The specific purpose for which a parcel 

of land or a building or a portion of a 

building is designed, arranged, intended, 

occupied or maintained.

 

1 No parties addressed his standing to file suit, so we do not as 

well.
6 A-2487-16T2

USE, ACCESSORY: A use which is customarily 

associated with and subordinate to the 

principal use of a lot or building and which 

is located on the same lot therewith.

The Board approved a resolution, which memorialized its 

interpretation of the ordinance approving the project.

Plaintiffs filed an action in lieu of prerogative writs to 

rescind the Board's action. The Law Division judge disagreed and 

entered an order dismissing the action with prejudice. In his 

eighteen-page statement of reasons in which he detailed the 

project's scope, the witnesses' testimony, the applicable law, and 

the Board's decision, the judge determined that - even though it 

may not fit in the narrow categories of "traditional" agricultural 

use - defendants' project was permitted in the AR zone because its 

uses were agricultural in nature and consistent with the intent 

of the ordinance. The judge held that the "enumerated agricultural 

activities in the ordinance are not meant to represent an 

exhaustive list, but are meant to illustrate as evidence of the 

phrase 'included but not limited to.'" The judge reasoned that 

"wetlands are a condition of the property and not an independent 

use of land for which a property owner would need approvals." 

Thus, he found that the project's plan, which includes soil 

conservation, forest management and beekeeping, is agricultural 

in nature.
7 A-2487-16T2

In their appeal brief, plaintiffs argue:

POINT I 

THE TRIAL COURT ERRED BY FAILING TO CONSIDER 

WHETHER THE INDEPENDENCE TOWNSHIP LAND USE 

BOARD'S DECISION WAS NULL AND VOID BEFORE 

CONSIDERING THE SUBSTANTIVE BASIS OF THE 

BOARD'S DECISION.

POINT II 

THE TRIAL COURT ERRED BY FAILING TO CONSIDER 

WHETHER THE LAND USE BOARD VIOLATED THE OPEN 

PUBLIC MEETINGS ACT.

POINT III

THE TRIAL COURT LACKED SUBJECT-MATTER 

JURISDICTION TO CONSIDER THE SUBSTANTIVE BASIS 

OF THE INDEPENDENCE TOWNSHIP LAND USE BOARD'S 

DECISION BECAUSE THE BOARD ACTED IN VIOLATION 

OF THE OPEN PUBLIC MEETINGS ACT.

POINT IV

THE TRIAL COURT ERRED BY FAILING TO CONSIDER 

AN AMENDED INDEPENDENCE TOWNSHIP ZONING 

ORDINANCE WHICH EXPLICITLY EXCLUDES "WETLANDS 

REMEDIATION AND/OR MITIGATION" AS A PERMITTED 

USE.

POINT V

THE TRIAL COURT ERRED IN DETERMINING THAT 

DEFENDANTS' PROPOSED ACTIVITIES ARE PERMITTED 

IN THE INDEPENDENCE TOWNSHIP AGRICULTURALRESIDENTIAL ZONE.

In their reply brief, plaintiffs argue:

POINT I

THE PROPOSED USES AS INTERPRETED BY THE LAND 

USE BOARD AND THE TRIAL COURT BELOW AS BEING 
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CONSISTENT WITH THE PERMITTED USES IN THE ZONE 

AS "CUSTOMARY AGRICULTURAL AND HORTICULTURAL 

USES" IS INCORRECT.

POINT II

THE ISSUE AS TO WHETHER OR NOT THE PROPOSED 

USES BY DEFENDANT [ROES] ISLAND ARE PERMITTED 

IN THE INDEPENDENCE TOWNSHIP AR-ZONE IS NOT 

MOOTED BY THE DOCTRINE OF PREEMPTION.

POINT III

THE LAND USE BOARD'S VIOLATION OF THE OPEN 

PUBLIC MEETINGS ACT WAS NOT CURED BY 

"DELIBERATIONS" IN OPEN SESSION.

We first address plaintiffs' argument in Point IV that the 

judge erred by failing to consider Independence Township 

ordinance, Section 255-3 – amended on December 1, 2015, after 

defendants' application was filed on October 31, 2014 – that 

explicitly excludes "[w]etlands remediation and/or mitigation" 

from the definition of agriculture. Since the project involves 

wetlands remediation, plaintiffs contend the amendment requires a 

finding that the project was not an agriculture use permitted in 

the AR zone and that the Board's decision should be rescinded.

We pass on the merits of this argument because plaintiffs 

failed to raise this argument before Judge Pursel entered his 

order,2 as we decline to consider arguments raised for the first 

 

2 January 3, 2017. 
9 A-2487-16T2

time on appeal that do not "go to the jurisdiction of the trial 

court or concern matters of great public interest." Zaman v. 

Felton, 219 N.J. 199, 226-27 (2014) (quoting State v. Robinson, 

200 N.J. 1, 20 (2009)). Moreover, under N.J.S.A. 40:55D-10.5,3

the "time-of-application" rule, the court must consider the law 

in effect when an application to the Board was made. Since Section 

255-3 was amended after defendants' interpretation application, 

its current iteration should not be considered to determine whether 

the project is permissible under the ordinance.

In addition, we find no merit to plaintiffs' argument that 

defendants' application for an interpretation does not meet the 

statutory definition of an "application for development" under 

N.J.S.A. 40:55D-3. Although plaintiffs' application sought an 

interpretation of the ordinance, it also requested a use variance 

to implement the project in the event the Board determined the 

project did not involve uses consistent with the ordinance. 

Consequently, the post-application amendments to Section 255-3 do

not invalidate the Board's decision.

 

3 N.J.S.A. 40:55D-10.5 provides, "[n]otwithstanding 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."
10 A-2487-16T2

Next, we next address plaintiffs' arguments in Point II of 

their initial brief and Point III of their reply brief that the 

Board erred by going into executive session and preventing the 

public the right "to be present at all meetings of public bodies, 

and to witness in full detail all phases of the deliberation, 

policy formulation, and decision making of public bodies," 

N.J.S.A. 10:4-7, and that the court erred in not considering 

whether the Board's executive session violated the OPMA. Although 

the court did not address plaintiffs' OPMA claim, we will address 

the claim under Rule 2:10-5, which provides that "[t]he appellate 

court may exercise such original jurisdiction as is necessary to 

the complete determination of any matter on review."

We see no merit to the claim. The record reveals that the 

Board entered into an executive session upon its attorney correctly 

citing N.J.S.A. 10:4-12(b)(7), which provides that a public body

can meet in an executive session to discuss "matters falling within 

the attorney-client privilege" and "pending or anticipated 

litigation." When the Board came out of its executive session, 

it deliberated publicly so the general public was not deprived of 

the opportunity to witness the process.

Plaintiffs' remaining arguments essentially challenge the 

merits of the court's findings that the project was permissible 

under the ordinance. They contend the court failed to explain how 
11 A-2487-16T2

defendants' project qualifies as "agricultural activity" since 

defendants do not propose to sell, lease or personally use any 

plants or other products that may come from the site. Plaintiffs 

maintain that defendants' activities, consisting of forest 

management, wood cuttings, soil conservation, and beekeeping, do 

not constitute as agricultural use. They contend the forest 

management plan does not involve the production of any timber or 

wood products. They likewise argue that a soil conservation plan 

does not qualify as agricultural use unless there are payments, 

for instance under a governmental program for soil conservation. 

They also contend the wood cuttings were not going to produce any 

revenue, but were intended to be used at some time in the future 

to establish more forested wetlands. Additionally, they assert 

beekeeping is such a minor part of the project that it should not 

be considered to justify as a use under the project.

As a threshold matter, when reviewing a trial court's 

determination of the validity of an action taken by a land use 

board, we are bound by the same standard as the trial court. N.Y. 

SMSA, L.P. v. Bd. of Adjustment of Twp. of Weehawken, 370 N.J. 

Super. 319, 331 (App. Div. 2004). Thus, we give substantial 

deference to findings of fact, Pomerantz Paper Corp. v. New Cmty.

Corp., 207 N.J. 344, 362 (2011), but review de novo those 

"interpretation[s] of the law and the legal consequences that flow 
12 A-2487-16T2

from established facts," Manalapan Realty, L.P. v. Twp. Comm., 

140 N.J. 366, 378 (1995). A trial court's decision that is based 

on its interpretation of the municipality's ordinances, the 

interpretation is primarily a legal issue, Wyzykowski v. Rizas, 

132 N.J. 509, 518 (1993), which "is not entitled to any special 

deference," Mountain Hill, L.L.C. v. Zoning Bd. of Adjustment of 

Twp. of Middletown, 403 N.J. Super. 210, 234-35 (App. Div. 2008) 

(citation omitted). We have long recognized that "because of 

their peculiar knowledge of local conditions," municipal land use 

boards "must be allowed wide latitude in their delegated 

discretion." Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597 

(2005); accord Booth v. Bd. of Adjustment of Rockaway Twp., 50 

N.J. 302, 306 (1967).

Mindful of these principles, we see no reason to disturb the 

judge's finding that the project is consistent with agricultural 

uses and accessory uses, which are allowed in an AR zone under the 

ordinance. Thus, we reject plaintiffs' arguments and affirm 

substantially for the reasons stated by the judge in his written 

statement of reasons issued with his order.

Affirmed.