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).

NOT FOR PUBLICATION WITHOUT THE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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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. 5:23A2.2(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.