SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 2487
- 16T2 LOUIS BADUINI and JOEL SCHNETZE R, 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 Count y , Docket No. L - 0 334
- 15.
Lawrence P. Cohen argued the cause for appellant s (Lavery, Selvaggi, Abromitis & Cohen, PC, attorn eys; Lawrence P. Cohen, of counsel and on the brief s ; William H. Pandos, on the brief s ). Thomas J. Trautner, Jr., argued the cause for respondent s Roe's Island, LLC and Amy S. Greene Environmental Consultant s , 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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, join s in the brief of respondents Roe's Island, LLC and Amy S. Green Environmental Consultants, Inc.).
PER CURIAM

P laintiffs Louis Baduini and Joel Schnetzer appeal from a Law Division order dismissing their action in lieu of prerogative writs to invalidate the decision by Indep endence Township Land Use Board (Board) that the wetlands mitigation p roject (the project) proposed by defendants Roes Island, LL C , and Amy S. Greene Environmental Consultants, Inc. (Amy S. Greene) (collectively defendants) is permitted in an agricultural residential zone (AR zone) . W e affirm.

Roe s 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 fulfil l to its state

- mandated obligati ons to undergo wetlands mitigation to create or enhance existing wetlands as compensation3 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 t o 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 filli ng of secondary ditches on the p roperty. 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 inte rpretation of the t ownship 's land use ordinance Section 255

- 98 (the ordinance): to determine if the project was within ordinance's definition of " customary agri cultural 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 op eration 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 five

month 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 c ivil engineer; and a wildlife biology expert . At the Board's request, the Warren Coun ty Mosquito Commission Superintendent test ified regardin g the commission's thoughts concerning the best methods for the way the project can reduce mosquitoes. In addition, Schne t zer, a self
- proclaimed potential5 A - 2487
- 16T2

landowner in Independence Township, appeared before the Board . 1

He object ed 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 wou ld be monitor ed . A fter all witnesses testi fied , the Board went in to 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 "a griculture" 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 p roperty ; 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 customa rily 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 or dinance 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 detail ed the project 's scope , the wit nesses' 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. T he 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 j udge 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 conservatio n, 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 SUBST ANTIVE 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 EXPLI CITLY 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 AGRICULTURAL RESIDENTIAL 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 BEING8 A - 2487
- 16T2 CONSISTENT WITH THE PERMITTED USES IN THE ZONE AS "CUSTOMARY AGRICULTURAL AND HORTICULTURAL USES" IS INCORRECT.

P OINT 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 I II
THE LAND USE BOARD'S VIOLATION OF THE OPEN PUBLIC MEETINGS ACT WAS NOT C URED BY "DELIBERATIONS" IN OPEN SESSION. We first address plaintiffs' argument in Point I V that the judge erred by failing to consider Independence Tow nship ordinance, Section 255

- 3

– amended on December 1, 2015 , after defendants' application was filed on October 31 , 201 4

– that explicitly exclude s " [w] etlands remediation and/or mitigation" from the definition of agriculture. Since the project involves wetlands remediation, p laintiffs contend t he amendment requires a find ing that the project was not an a griculture 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 t his argument before Judge Purs e l 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 consi dered to determine whether the project i s permissible under the ordinance . In addition, w e 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 amend ments 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 ma de with regard to that application for development."10 A - 2487
- 16T2

Next, w e next address plaintiff s ' argument s in Point II of their initial brief and Point III of their reply brief that the Board erred by going into e xecutive 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 pu blic bodies , " N.J.S.A. 10:4
- 7, and that the cou rt erred in not considering
whether the Board 's executive session violated the O P M A. Although the court did not address plaintiffs' OPMA claim, we will address the claim under Rule 2:10
- 5 , which p rovides that "[t]he appellate court may exercise such original jurisdiction as is necessary to the complete determination of any matter on review."

W e see no merit to the claim. The record reveals that the
Board entered into an executive session upon its attorney correctly cit ing N.J.S.A. 10:4
- 12(b) (7) , whic h 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 t he Board came out of its executive session, it deliberated publicly so the gene ral 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 how11 A - 2487
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defendants' pro ject qualif ies 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

m anagement, 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. The y 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 fu ture 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 T w p. 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 C mty. Corp. , 207 N.J. 344, 362 (2011), but review de novo those "interpretation [ s ] of the law and the legal consequences that flow12 A - 2487
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fr om estab lished 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

T w p. of Middletown , 403 N.J. Super. 210, 234
- 35 (App. Div. 2008) (citation omitted). We have long recognized that "because of their pecul iar 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 se e 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 i n his written
statement of reasons issued with his order. Affirmed.