SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3063-17T1

CAROL CRISPINO, VILMA 

VERBER, MARK EDWARDS, 

JORGE CABRERA, STEPHEN

CAPPADORA, PAUL O'KEEFE, 

KENNETH GARDNER, and

MARY GARDNER,

Plaintiffs-Respondents,

v.

TOWNSHIP OF SPARTA,

Defendant-Appellant.

Argued April 1, 2019 – Decided May 6, 2019

Before Judges Fasciale and Rose.

On appeal from Superior Court of New Jersey, Law 

Division, Sussex County, Docket No. L-0500-16.

Thomas N. Ryan argued the cause for appellant 

(Laddey Clark & Ryan, LLP, attorneys; Thomas N. 

Ryan and Jessica A. Jansyn on the briefs).

NOT FOR PUBLICATION WITHOUT THE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.
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John E. Ursin argued the cause for respondents 

(Schenck Price Smith & King, LLP, attorneys; John E. 

Ursin and Sandra Calvert Nathans, on the brief).

PER CURIAM

This appeal has its genesis in the imposition of a special assessment by 

defendant Township of Sparta on the owners of fifty-eight properties for the 

rehabilitation of a private dam owned by the Glen Lake Beach Club, Inc. 

(GLBC). Plaintiffs Carol Crispino, Vilma Verber, Mark Edwards, Jorge 

Cabrera, Stephen Cappadora, Paul O'Keefe, Kenneth Gardner and Mary Gardner 

are eight of those property owners. The assessment was imposed pursuant to 

Resolution 6-1, which was adopted by the Township Council following 

recommendations by the Township's expert consultant, Scott Holzhauer, CTA, 

SCGREA. 

Thereafter, plaintiffs filed a complaint in lieu of prerogative writs in the 

Law Division. Pertinent to this appeal, plaintiffs challenged the special 

assessment, seeking a declaration that the resolution was void. Following oral 

argument, the trial court granted plaintiff's application and remanded the matter 

to the Council to recommence the special assessment process. The Township 

filed a motion for reconsideration, which the court denied as to the issues on 

appeal. In sum, the trial court concluded the Council should have "excluded" 
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Holzhauer's report because the expert's method of allocating the assessment was 

a "net opinion" and, as such, reliance on the report was "arbitrary and 

unreasonable." 

On appeal, the Township renews the arguments it raised before the trial 

court. Because we conclude the court improperly determined the expert's 

opinion was net, and Holzhauer's report provided a sufficient basis to support 

the Township's adoption of Resolution 6-1, we reverse.

I.

The GLBC is a private association, which was established to enable its 

members and their guests "to enjoy boating, fishing, swimming and socializing 

in a peaceful and pleasant environment" on the lake created by the private dam 

at issue. Memberships with voting rights are available to property owners who 

reside within a certain proximity to the lake; "special membership[s]" without 

voting rights are available to members who do not live in that proximity. 

Although plaintiffs are not members of the GLBC, their proximity to the dam 

qualifies them for membership. 

In approximately 2002, the New Jersey Department of Environmental 

Protection (NJDEP) mandated repairs and rehabilitation of the dam (project) to 

comply with State codes. In 2008, the GLBC applied for a loan to finance the 
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project pursuant to the NJDEP's Dam Restoration and Inland Waters Projects 

Loan Program, N.J.A.C. 7:24A-1.1 to -5.1. As required by N.J.S.A. 58:4-12(d),1

the Township cosigned the loan agreement, and planned for its repayment 

through a special assessment on the properties benefitting from the project. In 

2012, the GLBC noticed "property owners within the surrounding area" of the 

lake that the Township would allocate and collect the cost of the project from 

"various property owners." 

Thereafter, the Council enacted ordinances, which authorized a special 

assessment to repay the loan, and established the Assessment Commission to 

determine the assessment.2 Among other things, the Commission was 

 

1 N.J.S.A. 58:4-12(d) provides, in pertinent part:

Loans awarded under this section to owners of private 

dams or lake associations shall require local 

government units to act as co-applicants. The cost of 

payment of the principal and interest on these loans 

shall be assessed, in the same manner as provided for 

the assessment of local improvements generally under 

chapter 56 of Title 40 of the Revised Statutes, against 

the real estate benefited thereby in proportion to and not 

in excess of the benefits conferred . . . .

2

In its initial decision the trial court also declared void the Township's 

ordinance appointing the Commission. On reconsideration, the court 

determined that ordinance was valid. The ordinance's validity is not an issue on 

appeal.
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empowered to survey the property after the improvement was completed; hold 

a hearing on notice to "all owners of all real estate affected"; and "[c]ertify the 

amount of the assessment to the Mayor and Council by a written report duly 

signed and accompanied by a map showing the subject real estate." 

The Township then appointed Holzhauer to assist in determining the 

assessment. Holzhauer made multiple site inspections, during which he 

observed the project and the properties identified within the GLBC's boundary. 

Among other documents, Holzhauer reviewed the GLBC's by-laws, the 

governing statutes for private and public improvement projects, and the coborrower agreement between the Township and the GLBC. 

In an eleven-page report, exclusive of exhibits, Holzhauer recommended 

the Commission allocate the special assessment among fifty-eight properties 

within the boundary of the GLBC because only those properties derived a 

"specific benefit" from the project. Holzhauer defined the boundary by 

transposing the perimeter description contained in the GLBC's by-laws onto the 

Township's "most current [t]ax [m]aps[.]" Holzhauer did not include those 

properties "excluded by law, by the [c]o-[b]orrower [a]greement, or by the terms 

of the NJDEP [l]oan [a]greement, or that have otherwise been deemed to not be 

viable for building and/or lake access . . . ." 
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In designating properties for assessment, Holzhauer considered the 

Commission's "function," i.e.,

to "allocate" the complete cost of the project in a logical 

manner – based on incremental benefit as judged or 

warranted – among ALL of the property owners within 

the project boundary that c[ould] be reasonably 

perceived as gaining a "peculiar benefit" or 

"advantage" (as per [N.J.S.A. 40:56-273]). In this 

community, the benefit attributable to the . . . lake is 

based on the recreational amenity (through optional 

membership) it provides to any desirous owner within 

the reserve boundary, and the scenic vistas that are 

available to a great majority of the properties that 

surround it.

Pertinent to this appeal, Holzhauer selected fifty-eight properties based on 

the owners' "right . . . to become a member of the [GLBC] and therefore have 

access to the lake and other [GLBC] amenities." Holzhauer opined that the right 

to membership "enhance[d the] property value for these property owners" that 

was not otherwise available to anyone outside the GLBC boundary. 

 

3 Pursuant to N.J.S.A. 40:56-27:

All assessments levied under this chapter for any local 

improvement shall in each case be as nearly as may be 

in proportion to and not in excess of the peculiar 

benefit, advantage or increase in value which the 

respective lots and parcels of real estate shall be 

deemed to receive by reason of such improvement.
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Holzhauer's allocation among the selected property owners was based on 

a "[three]-tier approach," under which he assigned values for: (1) basic 

membership option lots; (2) lake access lots; and (3) lakefront lots. Because all 

fifty-eight properties were eligible for membership in the GLBC, Holzhauer 

"assigned a single 'share value' of 1.0." The properties located "immediately 

across the street from the lake, enjoying direct pedestrian access to the lake and 

generally unobstructed views, were assigned an incremental 0.5 share value over 

the base share value." The lakefront properties, "which enjoy unimpeded direct 

access to the lake, along with the potential for establishing lake edge 

improvements (docks, etc.), were assigned an incremental 1.0 share value over 

the base share." Holzhauer allocated the total cost of the assessment to each 

property based on its share value. 

In June 2016, the Commission recommended that the Council adopt 

Holzhauer's "formulaic approach . . . result[ing] in the special assessments as 

reflected in the spreadsheet" set forth in his report. During the next two months, 

the Council held public meetings concerning a proposed resolution to adopt the 

special assessment. During the July 26, 2016 meeting, after some affected 

property owners commented that the Commission failed to consider certain 
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information concerning the GLBC's boundaries, the Council carried the 

resolution. 

The Commission then considered the information and determined it did 

not affect Holzhauer's special assessment allocation, and recommended that the 

Township adopt Holzhauer's report. On August 23, 2016, the Council held a 

final public meeting, during which it adopted Resolution 6-1 permitting the 

Township to impose the special assessment. 

Relevant here, in its ensuing decision the trial court rejected Holzhauer's 

opinion as net for failure to "provide a methodology for including the houses 

that were selected to be a part of the special assessment." Recognizing the expert 

need not employ a "fair market benefit analysis," the court nonetheless 

determined Holzhauer's methodology was arbitrary because it was based on 

eligibility for membership in the GLBC. The court elaborated:

[S]uch indiscriminate power on behalf of the GLBC 

invites ludicrous results. Under that theory, the GLBC, 

a private entity, could have amended [its] by-laws to 

include the whole Township of Sparta, and that could 

have been used as a methodology by the expert, 

requiring all property owners in the Township to 

contribute to the assessment. 
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II.

A.

We begin our review by recognizing we ordinarily defer to a trial court's 

decision to admit expert testimony to "ensure that the proffered expert does not 

offer a mere net opinion." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 

344, 371-72 (2011); N.J.R.E. 703. An expert is required to "'give the why and 

wherefore' that supports the opinion, 'rather than a mere conclusion.'" Townsend 

v. Pierre, 221 N.J. 36, 54 (2015) (quoting Borough of Saddle River v. 66 E. 

Allendale, LLC, 216 N.J. 115, 144 (2013)). 

Arguably, however, the Rules of Evidence do not apply to hearings 

conducted by a municipality seeking to impose a special assessment. Cf. 

N.J.R.E. 101(a)(3) ("proceedings before administrative agencies shall not be 

governed by the [R]ules"); N.J.S.A. 50:55D-10(e) (providing planning boards 

are not subject to the Rules); Baghdikian v. Bd. of Adjustment, 247 N.J. Super. 

45, 49 (App. Div. 1991) (stating that a zoning board "cannot be equated with 

courts" and "procedural safeguards employed in judicial proceedings" should 

not be "imported wholesale" into proceedings before a land use board (quoting 

City of Hackensack v. Winner, 82 N.J. 1, 29 (1980))). On that basis alone, the 

court's application of the net opinion rule to bar Holzhauer's unrefuted 
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methodology was misplaced. Indeed, a non-testimonial hearing by a municipal 

body considering a special assessment, should not be subject to the stringent 

evidential standards applicable to judicial proceedings. See N.J.R.E. 101(a)(2).

Nonetheless, assuming arguendo that the net opinion rule applies here, 

Holzhauer's report clearly sets forth the "why" and "wherefore" of his 

methodology. For example, Holzhauer limited the universe of properties 

affected by the assessment to those "within the boundary of the [GLBC][,]" thus 

dispelling the trial court's concern that the GLBC's by-laws could have been 

amended to include every property in the Township. Nor do we discern 

Holzhauer's methodology was arbitrary where, as here, it was based on those 

properties that "have access to the lake and other [GLBC] amenities." Indeed, 

Holzhauer selected the assessed properties because they met the statutory 

definition of "peculiar benefit" or "advantage" by virtue of their proximity to the 

lake and its recreational amenities "through optional membership[.]" 

Holzhauer's report further detailed his analysis and methodology for his "share 

value" allocation. We therefore agree with the Township that its expert's 

opinion was not net and was properly considered by the Council in adopting 

Resolution 6-1. 
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B.

Moreover, the standard of judicial review applicable to actions of 

municipal governments is highly deferential. Courts do not sit in judgment of 

the wisdom of municipal actions. Municipal ordinances and resolutions are 

presumed to be valid and rational. See First Peoples Bank of N.J. v. Twp. of 

Medford, 126 N.J. 413, 418 (1991); Hutton Park Gardens v. Town Council of 

W. Orange, 68 N.J. 543, 564 (1975). In the absence of a constitutional or 

statutory violation, municipal action may be overturned only if it was arbitrary, 

capricious, or unreasonable. See, e.g., Ten Stary Dom P'ship v. Mauro, 216 N.J. 

16, 33 (2013); Powerhouse Arts Dist. Neighborhood Ass'n v. City Council of 

Jersey City, 413 N.J. Super. 322, 332 (App. Div. 2010); Cohen v. Bd. of 

Adjustment, 396 N.J. Super. 608, 615 (App. Div. 2007). 

However, "municipal action is not arbitrary and capricious if exercised 

honestly and upon due consideration, even if an erroneous conclusion is 

reached." Bryant v. City of Atl. City, 309 N.J. Super. 596, 610 (App. Div. 1998). 

Further, municipal actions enjoy a presumption of validity. Ibid. Accordingly, 

"a challenge to the validity of a municipal . . . action must overcome the 

presumption of validity—a heavy burden." Ibid. Thus, courts focus on whether 

there was substantial evidence to support the decision. See Concerned Citizens 
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of Princeton, Inc. v. Mayor & Council of Princeton, 370 N.J. Super. 429, 453

(App. Div. 2004). 

In exercising its review, the court presumes assessments were regularly 

made and confirmed. See N.J.S.A. 40:56-33.4 A property owner bears the 

burden of rebutting that presumption by clear and convincing evidence. 

McNally v. Teaneck Twp., 75 N.J. 33, 44 (1977); In re Pub. Serv. Elec. & Gas 

Co., 18 N.J. Super. 357, 364 (App. Div. 1952). On the one hand, the court does 

not simply search the record to determine if there is sufficient, credible evidence 

to support the municipality's decision as it would in review of an administrative 

agency decision. See, e.g. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) 

(reciting the scope of review of administrative agency fact-finding). On the 

other hand, the court does not conduct a trial de novo on the proper assessment. 

Instead, the reviewing court is required to determine whether it is persuaded, by 

clear and convincing evidence, that the challenged decision was not "just and 

fair." N.J.S.A. 40:56-54.

 

4 Although N.J.S.A. 40:56-33 pertains to public assessments, as noted above, 

loans made for private dams under N.J.S.A. 58:4-12(d) are assessed "in the same 

manner as provided for the assessment of local improvements generally under 

chapter 56 of Title 40 of the Revised Statutes."
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Because we have concluded Holzhauer's opinion was not a net opinion, 

and the methodology utilized in his report was properly considered by the 

Council, we further conclude the Township's decision to adopt Resolution 6-1 

was neither arbitrary nor unreasonable. Rather, the municipal action here was 

just and fair.

Reversed.