                                NOT FOR PUBLICATION WITHOUT THE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
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                                                        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/Intervenor-
         Appellant.


JOHN AND JOAN CLEARY and
DAVID AND MARILYNN ROBINSON,

         Plaintiffs-Appellants,

v.

TOWNSHIP OF MIDDLETOWN
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. L-
           2571-14, 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).


                                                                   A-4982-16T1
                                    2
            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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                                     3
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)
                                                                           A-4982-16T1
                                        4
(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)
                                                                            A-4982-16T1
                                        5
(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)
                                                                    A-4982-16T1
                                 6
      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).]


                                                                          A-4982-16T1
                                        7
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


                                                                      A-4982-16T1
                                      8
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 analys es

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


                                                                     A-4982-16T1
                                       9
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.

                                                                        A-4982-16T1
                                     10
      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


                                                                          A-4982-16T1
                                       11
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.


                                                                       A-4982-16T1
                                     12
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

                                                                        A-4982-16T1
                                      13
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


                                                                       A-4982-16T1
                                     14
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




                                                                      A-4982-16T1
                                    15
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.




                                                                 A-4982-16T1
                                   16
