SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4982-16T1

TRINITY HALL CORPORATION,

Plaintiff-Respondent,

v.

TOWNSHIP OF MIDDLETOWN 

PLANNING BOARD and 

TOWNSHIP OF MIDDLETOWN, 

Defendants-Respondents,

and

LINDA GLOWZENSKI,

Defendant/IntervenorAppellant.

JOHN AND JOAN CLEARY and

DAVID AND MARILYNN ROBINSON, 

Plaintiffs-Appellants,

v.

TOWNSHIP OF MIDDLETOWN

NOT FOR PUBLICATION WITHOUT THE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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A-4982-16T1

PLANNING BOARD and

TRINITY HALL CORPORATION,

Defendants-Respondents.

LINDA GLOWZENSKI,

Plaintiff-Appellant,

v.

TRINITY HALL CORPORATION

and TOWNSHIP OF MIDDLETOWN

PLANNING BOARD,

Defendants-Respondents.

Argued February 13, 2019 – Decided August 13, 2019

Before Judges Fuentes, Accurso and Vernoia.

On appeal from the Superior Court of New Jersey, 

Law Division, Monmouth County, Docket Nos. L2571-14, L-1264-15 and L-3421-15.

Ronald S. Gasiorowski argued the cause for appellants

Linda Glowzenski, John Cleary, Joan Cleary, David 

Robinson and Marilynn Robinson (Gasiorowski & 

Holobinko, attorneys; Ronald S. Gasiorowski, on the 

briefs).

Paul H. Schneider argued the cause for respondent 

Trinity Hall Corporation (Giordano, Halleran & 

Ciesla, PC, attorneys; Paul H. Schneider and Steven 

W. Ward, on the brief).
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James H. Gorman argued the cause for respondent 

Township of Middletown Planning Board.

Michael L. Collins argued the cause for respondent 

Township of Middletown (Archer & Greiner, PC, 

attorneys; Brian M. Nelson and Michael L. Collins, on 

the brief).

PER CURIAM

In this action in lieu of prerogative writs, objectors Linda Glowzenski, 

John and Joan Cleary and David and Marilynn Robinson appeal from a final 

judgment affirming Township of Middletown Planning Board's grant of a 

preliminary and final major site plan and minor subdivision approval to Trinity 

Hall Corporation for a private all-girls high school, a conditionally permitted 

use in the Township's R-90 low density residential zone. We affirm, 

substantially for the reasons expressed by Judge Kapalko in his comprehensive 

and well-reasoned opinions of October 24, 2014 and April 18, 2016.

This matter has an exceptionally long and tortured history, most of 

which is irrelevant to the issues on this appeal. To summarize: Trinity Hall 

filed a conforming application for conditional use approval of its private high 

school in September 2013. After six hearings, the Board found the application

met the standards for private secondary schools set forth in Section 16-818 of 

the Township's Planning and Development Regulations. It nevertheless denied 
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the application, finding it did not meet all the "Guiding Principles and General 

Provisions" governing the grant of conditional uses found in Section 16-801 of 

the ordinance. Specifically, and "recogniz[ing] Section 16-801 may not be 

compliant with the MLUL (Municipal Land Use Law)," it found Sections 16-

801(B)(1), (2), (4), (5), and (9) had not been satisfied in 

that: the applicant has failed to prove that the 

proposed development is suitable; that . . . the 

proposed development is compatible with the existing 

neighborhood; that the project will substantially 

increase traffic and traffic hazards on Chapel Hill 

Road and its intersections; that the applicant has failed 

to prove the need for a school; and that the proposal is 

contrary to the objectives of the Master Plan. 

Trinity Hall filed a complaint in lieu of prerogative writs seeking a 

reversal of the Board's decision and invalidation of Middletown's conditional 

use ordinance. In the first of several comprehensive opinions in this matter, 

Judge Kapalko on October 24, 2014, found Section 16-801, as applicable to 

conditional use approval for private schools, failed, in part, to set forth definite 

specifications and standards for conditional uses and invalidated several 

sections of the ordinance,

1

remanding the matter to the Board. 

 

1

 Section 16-801 provides:

(continued)
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A-4982-16T1

 

(continued)

Certain uses, activities and structures are 

necessary to serve the needs and to provide for the 

convenience of the citizens of the Township at the 

same time, appreciating the fact that they or any one 

of them may be or may become inimical to the public 

health, safety and general welfare of the community if 

located without due consideration to existing 

conditions and surroundings, such uses are designated 

as conditional uses subject to the standards and 

regulations hereby established. These standards and 

regulations are intended to provide the Municipal 

Agency with a guide for reviewing applications for 

conditional uses as provided for by this Chapter. As a 

result of the review procedure, the applicant may be 

required to meet additional standards and regulations 

imposed by the Municipal Agency during site plan 

review which are in keeping with and will further the 

intent of these standards and regulations. Such 

standards and regulations shall be provided for and 

maintained as a condition of the establishment and 

maintenance of any use to which they are a condition 

of approval. In acting upon an application for 

conditional use approval, the Municipal Agency shall 

be guided by the following standards and principles: 

A. The use for which an application is being 

made is specifically listed as a conditional use within 

the zone where the property is located.

B. The design, arrangement and nature of the 

particular use is such that the public health, safety and 

welfare will be protected and that reasonable 

consideration is afforded to the following:

(continued)
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(continued)

1. The suitability of the particular property 

which is subject to an application for a 

conditional use.

2. The compatibility of the proposed use(s) 

and/or structure(s) within the existing 

neighborhood.

3. The potential effect that the proposed 

use(s) and/or structure(s) will have upon 

property values.

4. The adequacy of the proposed parking and 

traffic circulation for the use(s) and/or 

structure(s) and the potential for traffic 

congestion and/or the creation of undue traffic 

hazards.

5. The need for such facility or use(s) to 

serve the area in which it is to be located.

6. The adequacy of proposed drainage 

facilities which will serve the use(s) and/or the 

structure(s).

7. The adequacy of plans for screening any 

adverse aspects of the use(s) and/or structure(s) 

from adjoining properties.

8. The adequacy of proposed outdoor 

lighting.

9. Compliance with the standards, principles 

and objectives of the Master Plan.

(continued)
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The Board, at its next meeting, took up the matter in executive session. 

On returning to open session, it adopted a resolution granting the application. 

Glowzenski challenged the resolution, and Judge Kapalko found the Board's 

action violated both the MLUL and the Open Public Meetings Act, N.J.S.A. 

 

(continued)

10. Compliance with the design standards, 

general provisions, submission requirements and 

other appropriate provisions of this Chapter.

11. Whether or not the proposed use 

represents an inherently beneficial use to society 

or the local community.

C. All conditional uses shall also be required 

to obtain site plan approval, unless otherwise specified 

in this Chapter.

D. Conditional uses shall adhere to the 

additional standards specified for the particular use 

under this Article except where no additional 

standards are specified herein.

E. No use specified within this Article shall 

be considered a conditional use unless it is specifically 

listed as a conditional use in the zone district 

regulations.

[Township of Middletown, Planning and Dev. 

Regulations § 16-801 (2013). Judge Kapalko 

invalidated the introductory sentence to Section 16-

801(B), Sections B(1) through (5), B(9) and B(11).]
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10:4-6 to -21. He accordingly vacated the resolution and again remanded the 

matter to the Board. 

On remand, the Board held a public hearing on the application, at which 

Trinity Hall's engineer testified, and was cross-examined extensively, on 

drainage issues. The engineer explained the stormwater management plan for 

the site had originally consisted of two detention basins and five underground 

recharge basins. In response to technical review letters received from the 

Board's engineer, Trinity Hall dug seventeen test pits on the property in 2014 

and 2015 to identify soil type and ground water level. After analyzing the 

results, it submitted a groundwater recharge evaluation and revised stormwater 

management report. Because the test pits revealed hydric soils, which would 

significantly affect drainage and restrict vertical percolation of groundwater, 

the applicant's engineering firm concluded groundwater recharge was not a 

viable option, as the soils do not permit recharge. It thus eliminated all five 

recharge basins and expanded the size of the two detention basins.

Trinity Hall's engineer testified the proposed detention basins were 

compliant with the Department of Environmental Protection's Best 

Management Practices Manual and maintained the required one-foot

separation between the bottom of the basin and seasonal high water table. The 
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A-4982-16T1

Board's engineer agreed, stating, "I believe they've met the stormwater 

requirements at this point in time."

Objectors' presented the testimony of their own engineer, who criticized

the test pit excavations because they were taken in January and not in the

period between May and December, which the expert claimed was required by 

"state standards." He further claimed the one-foot separation to seasonal high 

water table was not met for the detention basins and questioned whether hydric 

soils predominated the site and thus whether the applicant's conclusions as to 

lack of recharge were accurate. Objector's engineer conceded, however, that 

he had not reviewed the original plans nor conducted any of his own analyses

and thus could not give an engineering opinion. When asked by a Board 

member if that meant he could not say "one way or the other whether or not 

the drainage is adequate?" he replied, "I don't think anyone can." 

After questioning objectors' engineer about the detention basins and the 

one-foot separation requirement, objectors' counsel asked to recall Trinity 

Hall's engineer to query him further about that issue. The Board declined

adhering to the Board attorney's instructions that unless he were recalled by 

Trinity Hall, the applicant's engineer could not be questioned further. He 

further offered that the question was one that should have been put to the 
10 A-4982-16T1

witness during his extensive cross-examination. Objectors' counsel also 

requested that the Board's engineer testify after the objectors concluded their 

case. The Board's attorney noted it was already one o'clock in the morning and 

the engineer did not wish to testify. The Board thereafter voted four to two to 

approve the application. 

The Board's 2015 Resolution Granting Preliminary/Final Major Site 

Plan, Conditional Use Approval, Design Exceptions and Minor Subdivision 

Approval to Trinity Hall provided that all of the definite conditional use 

standards for secondary schools set forth in the municipal ordinance had been 

met, and included fifteen conditions of approval, including that all necessary 

permits be obtained from the DEP. Regarding the adequacy of the drainage 

facilities, the Resolution provided that all concerns raised by the Board's 

engineer had been answered to the Board's satisfaction. Further, it stated:

It is not the Board's function to delve into such 

technical drainage issues. Firstly, the Board is entitled 

to rely on the professional seal and signature of the 

applicant's engineer. Secondly, the Board just does 

not rely on the applicant's engineer, it also seeks the 

opinion of the Board Engineer. As noted above, the 

Planning Board Engineer in his report of May 27, 

2015 noted that[:] "The applicant has complied with 

all engineering comments." Accordingly, the 

Planning Board is approving the drainage plan as 

submitted. No changes are required; there is no 

delegation to the Board engineer.
11 A-4982-16T1

As to objectors' engineer's testimony, the Resolution noted he spoke at 

length about soil types, test pits, soil logs, and high water levels, but in the end 

he could not give the Board a professional opinion on the drainage. 

Specifically, the Resolution noted:

[Objectors' engineer] submitted no report. [The 

engineer] merely presented his concerns and 

questions, but did not provide any professional 

opinion that the Board could base a decision on. The 

Board cannot deny a conforming site plan based on 

concerns or questions, particularly where a 

professional engineer has signed and sealed the plans, 

and where the Board's own engineer has reviewed 

them and found them to be in compliance.

Objectors amended their pleadings to challenge the approval. Ten days

after the trial, Judge Kapalko issued a forty-page cogent and comprehensive 

opinion on April 18, 2016, addressing every one of objectors' arguments and 

finding the Board had conducted an adequate hearing on July 1, 2015, and 

there was sufficient evidence in the record to support its findings as to the 

stormwater detention system. The judge also found that the Board could 

rightly rely upon the technical review of its engineering professional. After 

reviewing the evidence in the record and quoting extensively the testimony 

adduced at the July 1 hearing, Judge Kapalko concluded "the Board heard 

more than adequate testimony on the issue of the detention basins. While it is 
12 A-4982-16T1

true that the accuracy of this evidence was thoroughly challenged, it is for the 

Board, not this court, to assign credibility and weight to the conflicting 

evidence." 

Specifically, as to the credibility of the experts, the judge noted 

objectors' engineer provided no support for his assertion that the soil logs were 

taken improperly in January instead of in the latter half of the year. Trinity 

Hall, in contrast, relied on DEP's own regulation at N.J.A.C. 7:9A-5.8(b), 

which provides specifically that the seasonal high water table is to be 

determined by way of soil pits or borings dug during January through April.2 

As for objectors' contention that Trinity Hall's plan for the detention 

basins did not demonstrate the required one-foot separation between the 

seasonal high water table and the bottom of the basin, Judge Kapalko noted the 

debate was over how the lowest level of the basin is determined. Finding that

level "subject to interpretation" and a proper subject for expert opinion, the 

judge found the Board was free to accept the testimony of the applicant's 

 

2

 We could locate no support for objectors' expert's testimony that DEP 

requires test pit information to be obtained between May and December. DEP 

regulations appear silent as to the optimal time for measuring the seasonal high 

water table in connection with stormwater managements systems. N.J.A.C. 

7:9A-5.8, however, does provide that the standard for measuring the seasonal 

high water table when constructing septic systems is during the months of 

January through April. 
13 A-4982-16T1

engineer and its own engineering expert that the separation was adequate in 

light of objectors' engineer's failure to provide any conclusive evidence that his 

opinion of what constitutes the bottom of a basin was correct. The judge also

noted one of the conditions of the approval was that construction of the 

improvements, which included the detention basins, was subject to the review 

and approval of the Planning Board engineer. Judge Kapalko thus noted the 

"Board Engineer will ultimately be in a position to ascertain that the basins 

are, in fact, installed" in a manner that meets the required one-foot separation, 

"irrespective of any alleged technical anomaly or ambiguity in the drawings." 

Finally, the judge underscored objectors' expert's inability to offer his 

own opinion as to the adequacy of the stormwater plan and its affect on the 

Board's determination. Judge Kapalko wrote:

Thus, unless the Board was willing to conclude 

the universe of data presented on this subject, together 

with the opinions of two experts who opined the data 

was adequate, was insufficient, it could properly 

conclude that the remainder of [objectors' engineer's]

opinions should be accorded less weight. It could also 

view the conclusions of [the applicant's engineer] and 

[the Board's engineer], as to the adequacy of the 

drainage system proposed, undisputed on the subject 

of sufficiency. No expert opined otherwise. 

Objectors promptly moved for reconsideration. Owing to Judge 

Kapalko's medical leave and untimely death, the motion was not heard for over 
14 A-4982-16T1

a year. The case was finally reassigned to Judge Perri who reviewed the 

record and issued her own detailed opinion denying the motion.

Objectors appealed Judge Kapalko's October 24, 2014 order invalidating 

parts of the ordinance; the May 12, 2015 order for remand; the October 23, 

2015 order concerning certain privileged documents; the April 26, 2016 final 

judgment; and Judge Perri's July 7, 2017 orders denying Trinity Hall's motion 

to schedule oral argument and denying reconsideration. In their brief, 

however, they address only the October 24, 2014 order, the April 26, 2016 

order and (briefly) the July 7, 2017 denial of reconsideration. Thus we 

consider only their arguments as to the October 24, 2014 order invalidating 

parts of the ordinance, the final judgment and the denial of their motion for 

reconsideration, deeming the remainder waived. See Sklodowsky v. Lushis, 

417 N.J. Super. 648, 657 (App. Div. 2011).

As to objectors' arguments with respect to invalidation of aspects of 

Middletown's conditional use ordinance, and the adequacy of the evidence 

supporting the final judgment and reconsideration, we consider them without 

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). 

There is no question but that Judge Kapalko was required to assess the validity 

of the conditional use ordinance pursuant to which the Board initially denied 
15 A-4982-16T1

Trinity Hall's application, notwithstanding the Board's doubts as its validity. 

See Jackson Holdings, LLC v. Jackson Twp. Planning Bd., 414 N.J. Super. 

342, 345 (App. Div. 2010). Review of the ordinance makes plain the sections 

Judge Kapalko invalidated suffered the same flaws as the ordinance struck 

down in Lincoln Heights Association v. Township of Cranford Planning 

Board, 314 N.J. Super. 366, 387-88 (Law Div. 1998), aff'd o.b., 321 N.J. 

Super. 355 (App. Div. 1999) (striking down conditional use ordinance with 

requirements similar to the negative criteria for a use variance for lack of 

specificity and unlawful arrogation of the powers of the board of adjustment). 

See also Jackson Holdings, 414 N.J. Super. at 349-50; Cardinal Props. v. 

Borough of Westwood, 227 N.J. Super. 284, 287 (App. Div. 1988).

Judge Kapalko's conclusion that there was substantial, competent 

evidence in the record to support the Board's finding that Trinity Hall's 

stormwater management plan satisfied Middletown's ordinance and DEP's 

regulations is unassailable. The law is well settled that municipal boards "may 

choose which witnesses, including expert witnesses, to believe." Bd. of Educ. 

of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 434 

(App. Div. 2009). Where that choice is "reasonably made," as here, "such 
16 A-4982-16T1

choice is conclusive on appeal." Kramer v. Bd. of Adjustment, 45 N.J. 268, 

288 (1965).

Having reviewed the record, we are satisfied that Judge Kapalko

conscientiously, and correctly, considered and rejected each of objectors'

arguments challenging the approval granted to Trinity Hall. We affirm 

substantially for the reasons he expressed in his thorough and thoughtful 

opinions of October 24, 2014 and April 18, 2016.

Affirmed.