JEFFREY BROADHURST and ELLEN

BROADHURST,

Plaintiffs-Appellants,

v.

TOWNSHIP OF HOLLAND PLANNING

BOARD and ALLEN BLUMBERG,

Defendants-Respondents.

_________________________________

Argued May 13, 2008 - Decided August 15, 2008

Before Judges Coburn, Fuentes and Chambers.

On appeal from Superior Court of New Jersey,

Law Division, Hunterdon County, Docket No.

L-400-04.

John W. Thatcher argued the cause for appellants

(Law Offices of John W. Thatcher, attorneys;

Mr. Thatcher, on the brief).

Donald W. Morrow argued the cause for respondent

Township of Holland Planning Board (Morrow & Morrow,

attorneys; Mr. Morrow, on the joint brief).

John J. Bonelli argued the cause for respondent

Allen Blumberg (Porzio, Bromberg & Newman, attorneys;

Douglas R. Henshaw, of counsel and on the joint

brief).

PER CURIAM

Plaintiffs Jeffrey and Ellen Broadhurst appeal from the

order of the Law Division upholding the decision of defendant

Township of Holland Planning Board to grant defendant Allen

Blumberg final major subdivision approval. Plaintiffs argue

that: (1) the Board and applicant failed to comply with the

Municipal Land Use Law's requirement that application documents

be available for public inspection ten days prior to a scheduled

board hearing; and (2) the Board improperly granted the

applicant a variance under N.J.S.A. 40:55D-70(c), with respect

to the width of an easement for the access of open space on the

property.

During the pendency of this appeal, plaintiffs sold their

property adjacent to the applicant's proposed development.

Defendants thus argue that this land sale deprived plaintiffs of

standing to prosecute this appeal, because plaintiffs no longer

have an interest in the application.

We affirm. The record supports the Board's findings that

the applicant timely submitted the relevant documents and that

they were on file and available for public inspection. With

respect to the access easement variance, we agree with the trial

court that plaintiffs had sufficient notice to raise the issue

at the relevant hearing. We find no basis to conclude that the

Board improperly delegated its authority to its engineer with

regard to the easement. Having reached this conclusion, we do

not address defendants' mootness argument. We summarize the

following facts from the record developed before the Board.

I

Blumberg owns a 110-acre parcel on Hawks Schoolhouse Road

in Holland, New Jersey. Seeking to develop his property,

Blumberg began the process of obtaining subdivision approval

with the Township Planning Board in August 2002. When Blumberg

filed his applications, plaintiffs owned property on Hawks

Schoolhouse Road adjacent to Blumberg's parcel. However,

plaintiffs sold their property while this appeal was pending.

On August 27, 2002, Blumberg filed an application for

preliminary major subdivision approval. The Board held public

hearings on the application on March 10, April 14, June 9, and

management plan was not available for public inspection ten days

before the June 9, 2003 hearing, as required by the Municipal

Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163.

At the March 10, 2003 hearing, plaintiff Jeffrey Broadhurst

advised the Board that neither Blumberg's stormwater management

2003 meeting. Plaintiffs have provided us, however, with a copy

of the minutes as prepared by the Board's staff.

plan nor his environmental impact statement ("EIS") was in the

application file available for public inspection. Stormwater

runoff was of particular concern to plaintiff, because his

property is situated downhill from the Blumberg site.

At the hearing, the Board secretary produced the

application file, which contained all the relevant documents.

The Board chair speculated that there may have been a

miscommunication regarding the EIS and "geology report." As a

result, the Board concluded that these documents were available,

but not necessarily provided to the public on request.

Because of substantial changes to the subdivision plan,

Blumberg republished notice in anticipation of the June 9, 2003

hearing. On June 5, 2003, plaintiffs' counsel sent a letter to

the Board attorney stating:

[Plaintiff] Mr. Broadhurst had previously

appeared before the Board and had noted that

the stormwater plan was not on file. Since

any proposed action with respect to

stormwater on the subject property will

affect the Broadhurst property, Mr. and Mrs.

Broadhurst are understandably concerned

regarding that issue. Apparently, the Board

took that matter into consideration and was

also concerned at the hearing on the first

application. In any event, the applicant

was required to revise his application and

resubmit it.

Since that time, I have reviewed the file

myself, as you suggested. My client has

also reviewed the file again. Nowhere in

that file is there an original drainage

report. It appears not to exist, despite an

addendum. Moreover, the original drainage

plan for the property should have changed

substantially by now. Specifically, instead

of one detention basin, there are now two.

Additionally, a detention basin is located

on the immediate sideline of my clients'

property, raising numerous issues.

We are objecting to the hearing on June 9,

2003 because the entire application was not

on file at least ten days before the

hearing.

Despite plaintiffs' objection, the June 9, 2003 hearing

proceeded as scheduled. At the hearing, plaintiffs' counsel

again objected to the Blumberg application. After some colloquy

between the attorney for the Board, members of the Board, and

plaintiffs' counsel, the Board concluded that the stormwater

management plan had, in fact, been located in the file and

proceeded with the hearing.

At the hearing, plaintiffs' counsel cross-examined

Blumberg's engineer David Stires extensively about the contents

of the stormwater management plan. Additionally, plaintiff

Jeffrey Broadhurst testified as to his concerns about stormwater

damage to his property from Blumberg's proposed development.

On July 14, 2003, the Board engineer, Gerald D. Philkill,

wrote a letter to the Board discussing the details of Blumberg's

revised subdivision application. In that letter, Philkill

brought the issue of the access easement to the Board's

attention for the first time:

A variance from Section 100-47.1.E(1) of the

required. This section requires that Open

Space Parcels have an access strip a minimum

of 35 feet wide with frontage on a public

street.

Philkill's letter closes with the following paragraph:

[T]his is a brief review of the application

as presently submitted. I have not

conducted a thorough engineering review of

the revised subdivision plans recently

submitted, nor have I conducted a thorough

evaluation of the stormwater collection

system and stormwater management elements of

this plan. Any approvals of this

subdivision should be subject to a more

complete engineering evaluation of the

details of the plan which has been

presented.

The July 14, 2003 meeting was closed to public comment.

With respect to the open space access easement, the minutes of

the July 14, 2003 meeting contain the following statement:

The Board Attorney stated that the open

space must have public street access. . . .

There was discussion of access to the open

space located in the rear of the proposed

lots. Elizabeth C. McKenzie, the Township's

Professional Planner, suggested that there

be an access easement between Lots 5.15

[sic] and Lot 5.16. The access easement is

not be [sic] located on either lot, but is

to be located between the two lots. [One

part of the appellate record.

Board member] expressed concern about there

not being any access from Hawks Schoolhouse

Road. The Board Attorney noted that since

the County had rejected an offer of

for the use of the homeowners in the

subdivision and thus limited access is in

order. The Board attorney stated that there

should be a deed submitted for the open

space and access to it. . . . The [Holland]

Land Use Code requires that Open Space

Parcels have an access strip that is a

minimum of 35 feet wide with frontage on a

public street. During further discussion of

the access to the Open Space, the consensus

of opinion of the Board Members was that a

20 foot wide access would be sufficient.

The Board Attorney will modify the

Resolution to indicate that a 20 foot wide

access to the Open Space will be sufficient.

The approval is conditioned on the deeds for

the Open Space and the access easement being

reviewed and approved by the Board Attorney,

Professional Planner and the Board Engineer.

Based on these minutes, we infer that the Board considered

and granted the variance from the ordinance's access easement

width requirement sua sponte.

Approximately one year later, the Board granted Blumberg's

final major subdivision approval in a resolution dated July 12,

2004. On September 1, 2004, plaintiffs filed an action in lieu

of prerogative writs, challenging the grant of subdivision

the open space parcel. Apparently, the County did not want to

be responsible for maintaining the detention basin, so refused

the applicant's offer of the open space being transferred to the

County.

approval. On January 12, 2005, the trial court dismissed

plaintiff's complaint as untimely.

Plaintiffs sought appellate review after the trial court

denied a motion for reconsideration. We reversed and remanded

for the trial court to consider the merits of plaintiffs' case.

Broadhurst v. Twp. of Holland Planning Bd., No. A-3892-04 (App.

On remand, the trial court instructed the Board to submit a

revised resolution, detailing its findings of fact and

conclusions of law with respect to the grant of Blumberg's

subdivision application. The Board adopted such a resolution on

September 11, 2006, providing, in pertinent part, as follows:

WHEREAS, [Plaintiffs' attorney] Anthony

Koester, Esq., sent correspondence dated

June 5, 2003, to the Planning Board Attorney

alleging that the Planning Board Secretary's

file did not contain drainage reports

submitted by the applicant and objected to

the application proceeding at the June 9,

2003 Planning Board meeting; and

WHEREAS, at the June 9, 2003 Planning Board

meeting, Anthony Koester, Esq., again

objected to the Board's consideration of the

application asserting that a drainage study

was not included in the Planning Board

Secretary's file as required under N.J.S.A.

40:55D-10(b); and

present one.

WHEREAS, in response to the objection raised

by Anthony Koester, Esq., the Planning Board

Chairman interrupted the Planning Board's

consideration of the application; inspected

the Planning Board Secretary's file; and

acknowledged the presence of the drainage

study in the file; and

WHEREAS, the Board Secretary indicated that

the original report was also contained in

the Board Secretary file; and

WHEREAS, the Board Chairman determined that

the applicant had complied with N.J.S.A.

40:55D-10(b), and therefore, the Planning

Board should continue its consideration of

the application; and

WHEREAS, on March 10, 2003, April 14, 2003,

and June 9, 200[3], David Stires, P.E.,

provided extensive testimony on behalf of

the applicant regarding site engineering and

stormwater drainage issues; and

WHEREAS, on June 9, 200[3], Anthony Koester,

extensive cross-examination of Mr. Stires

regarding site engineering and stormwater

drainage issues; and

. . . .

WHEREAS, on July 14, 2003, Gerald Phillkill,

PE, the Board Engineer, indicated that the

Township Ordinance required a 35 foot wide

access strip to the open space parcel; and

WHEREAS, on July 14, 2003, the Board

Members, based on their review of the

exhibits and consideration of prior

testimony pertaining to the limited use of

the open space parcel, determined that a 20

plaintiff Broadhursts, not Blumberg the applicant.

foot wide access to the open space would be

sufficient . . . .

The Planning Board specifically found that "[a]ll maps and

documents pertaining to the application were on file and

available for public inspection in accordance with the

provisions of N.J.S.A. 40:55D-10b." With respect to the

positive and negative criteria of the access easement variance,

the Board found that:

A. As to Positive Criteria

. . . .

9. The open space provided for in the

Plan exceeds the open space requirements of

the Township Ordinance.

10. A twenty-foot wide access strip to

the open space lot is sufficient since the

use of the open space will be limited to the

homeowners in the subdivision.

B. As to Negative Criteria

1. The relief requested for the

proposed development can be granted without

substantial detriment to the neighbors' use

and enjoyment of their lots or to their

property values. The development as

proposed is more beneficial to the

neighboring lots and community than strict

adherence to the provisions of the

Ordinance. The lots are in harmony with

lots located adjacent to the property and in

the immediate vicinity.

2. The relief requested will not

impair the intent and purpose of the Zone

Plan and Zone Ordinance. To the contrary,

for the reasons recited herein, the

development was customized to this piece of

property so as to promote the intent of our

Land Use Ordinances and the Land Use Act.

Finally, as a condition of final subdivision approval, the

Planning Board required that Blumberg comply with all of the

recommendations made by the Board engineer in his July 14, 2003

letter.

II

On December 8, 2006, the trial court held a final hearing

to assess the validity of the Board's revised September 11,

2006, resolution. At this hearing, plaintiffs' counsel conceded

that Blumberg had submitted the stormwater management plan and

that the plan was located in the file. Counsel argued, however,

that the plan simply was not presented to plaintiff when he

asked for Blumberg’s documents.

With respect to the open space access easement, plaintiffs

argued: (1) that the Planning Board erred when it raised the

issue of the reduction of the easement's width without reopening

the meeting for public comment; and (2) that the Board

engineer's July 14, 2003 letter proved that he had not performed

a thorough evaluation of the stormwater management plan.

In a memorandum of decision dated April 23, 2007, the trial

court upheld the Board's actions. With respect to the access

easement variance, the trial court deferred to the Board's

weighing of the positive and negative criteria. The court also

rejected plaintiffs' attack on the thoroughness of the

engineer's analysis:

This contention ignores several facts.

The Board had considered the matter already

at three public hearings at which Mr.

Philkill was present. During these three

hearings there was the normal plan review

process which was reflected in the Board's

findings, cited above, that the developer

had been more responsive than most to

requests from the Board. Further, the full

text of the engineer's comments relates to

plot details, right of way agreements,

driveway aprons, etc. It does not suggest

rejection of the application or that there

was any seriously missing information.

Thus, his specifics with respect to

engineering requirements and plat items set

forth in his letter involve matters of

detail.

The common sense of the letter is thus

that these individual items are needed to be

further corrected and fleshed out. There is

no indication in Mr. Philkill's letter of

any concern for the overall detention or

other plans or any expression by him that he

needed more information in order to make

sure that they work. Thus the letter itself

does not raise issues which would have

required the Board to reopen the hearing.

Nor do plaintiffs suggest any such defects

resulting from their cross-examination.

. . . .

Alternatively, implicit in the

plaintiffs' complaint about the variance

issue being raised after the hearing had

been closed is a suggestion that the

specific variance had to be noticed.

demonstrates that this notice occupied a

full column in the newspaper. It is an

extraordinarily detailed notice. Thus, it

more than sufficed to give anyone who read

it a clear idea as to what is being

requested, which is all that the statute

requires.

N.J.S.A. 40:55D-11 only mandates that

the nature of the matters to be considered

be disclosed, not that every detail be

disclosed. For this reason, omission of the

particular variance via a general statement

that other variances and design waivers may

be requested is sufficient. In Perlmart v.

Lacey Township Planning Board, 295 N.J.

Super. 234 (App. Div. 1996) the Court

definitively rejected the notion that each

and every variance in an application had to

be specified, so long as the general nature

of the application was accurately set forth:

Plaintiff also contends that the notice

did not specify all of the particular

variances required. We do not tarry

long with this claim because we did

[sic] not believe the Legislature

intended the required public notice to

be that specific. Perlmart, supra, 295

N.J. Super. at 237, n.3.

Thus, the lack of notice of this

particular variance did not void the

application. Rather, the variance simply

was a minor addition intended to insure

compliance with the zoning ordinance.

included as part of the appellate record.

Finally, the court rejected plaintiffs' argument that

Blumberg and the Board violated the requirements of MLUL's

subsection 10(b).

Aside from a dearth of case law,

plaintiffs fail to demonstrate that the

statutory scheme itself supports their claim

that the Board had no jurisdiction to

proceed on June 9. While failure to provide

notice of a hearing is jurisdictional, the

M.L.U.L. notice provisions are in a separate

section, N.J.S.A. 40:55D-12, from that

governing the conduct of hearings, N.J.S.A.

40:55D-10. The difference is substantial.

The requirements in N.J.S.A. 40:55D-12 are

accompanied by distinct, clear requirements

as to whom notice is to be given, who

prepares the notice and the contents of the

notice. . . .

No such safeguards are contained in

N.J.S.A. 40:55D-10b. Thus, there are no [ ]

clear guidelines for any applicant to follow

in the event documents are missing, assuming

this to be the case as alleged. As a

result, making jurisdiction turn on the

existence of a document in the file will

inevitably make jurisdiction dependent on

such confusion as may have occurred here. .

. . Surely the Legislature which made such

careful provisions for notice of hearing did

not intend jurisdiction to be defeated by

cursory and informal file reviews.

III

We will first address plaintiffs' argument, grounded on an

alleged failure by both the applicant and the Board to keep all

documents for which approval is sought on file, and available

for inspection to the public at least ten days before the

scheduled hearing. N.J.S.A. 40:55D-10(b). We reject this

argument and affirm substantially for the reasons expressed by

the trial court. The record here indicates that Blumberg

complied with the statutory requirement by timely filing the

stormwater management plan. It is equally clear to us that the

evidence shows that the Board placed the documents related to

the plan on file, and available to the public for inspection.

We next address plaintiffs' argument challenging the

Board's approval of the easement variance. We review the

decision of the trial court in this respect using the same

standards used by the court below in reviewing the actions of

the Board. N.Y. SMSA, L.P. v. Bd. of Adj. of Weehawken, 370

N.J. Super. 319, 331 (App. Div. 2004) (citing Charlie Brown of

Chatham v. Bd. of Adj. of Chatham, 202 N.J. Super. 312, 321

(App. Div. 1985)). We are bound to defer to the Board's

findings of fact. Jock v. Zoning Bd. of Adj. of Wall, 184 N.J.

562, 597 (2005). In reviewing the Board's discretionary

decisions, we reverse only if such authority is exercised in an

arbitrary, capricious and unreasonable manner. Ibid.

Here, we again find ourselves in agreement with the

analysis and ultimate conclusion reached by the trial court, and

thus affirm substantially for the reasons expressed by the court

in its memorandum of decision. In this context, we need not,

and specifically do not reach defendants' argument that

plaintiffs' objections are rendered moot by virtue of having

sold their property while this appeal was pending.

Affirmed.