                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5765-17T3

MICHAEL RANTZ,

          Plaintiff-Respondent,

v.

PLANNING BOARD OF BAY
HEAD,

          Defendant-Respondent,

and

PATRICK WATERS and
SHANNON WATERS,

     Defendants-Appellants.
_____________________________

                    Argued August 13, 2019 – Decided August 20, 2019

                    Before Judges Messano and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Ocean County, Docket No. L-0626-17.

                    Angelo Anthony Stio, III argued the cause for
                    appellants Patrick Waters and Shannon Waters (Pepper
            Hamilton LLP, attorneys; Jonathan M. Preziosi and
            Angelo Anthony Stio, III, of counsel and on the briefs).

            Citta Holzapfel & Zabarsky, attorneys for respondent
            Planning Board of Bay Head, join in the briefs of
            appellants Patrick Waters and Shannon Waters.

            Edward F. Liston, Jr. argued the cause for respondent
            Michael Rantz.

PER CURIAM

      Defendants Patrick and Shannon Waters own a home in the Borough of

Bay Head (Bay Head) in a single-family residential zone, which permits

accessory buildings subject to certain limitations.       Defendants' property

included an accessory structure at the rear that contained a sink, toilet and

shower. As contract purchasers of the property, defendants participated in an

informal hearing on the record before the Planning Board (the Board). 1 At that

time, Bart Petrillo, the municipality's zoning officer, was a member of the Board

and participated in the May 2016 proceeding. The Board recommended that




1
   The Board is a unified board that also exercises all powers of a board of
adjustment pursuant to N.J.S.A. 40:55D-25(c). However, N.J.S.A. 40:55D-10.1
permits only a planning board, not a board of adjustment, to conduct informal
reviews. See also Cox & Koenig, N.J. Zoning and Land Use Administration,
§13-2 (2019).



                                                                         A-5765-17T3
                                       2
defendants file a development application pursuant to N.J.S.A. 40:55D-682 and

informally indicated it might look favorably upon the application.

        After purchasing the property, defendants filed the application, asserting

the sink, toilet and shower had been in the building "for many years," and the

building "ha[d] . . . been used for sleeping purposes in the past." Defendants

sought to "maintain these facilities . . . as sleeping quarters for family members

and guests." In their public notice, defendants stated the application sought "[a]

certificate of continuance of a pre-existing non-conforming use . . . to permit the

continuation of shower, sink and sanitary facilities in the accessory structure ,"

so defendants could "continue the use of the accessory structure as sleeping

quarters for family and guests."         The Board held public hearings on the

application.

        At the first public hearing, Petrillo recused himself "because [he had]

spoken at great length to some of the people (indiscernible) ordinance." Patrick


2
    In relevant part, N.J.S.A. 40:55D-68 provides:

                      The prospective purchaser . . . or any other person
               interested in any land upon which a nonconforming use
               or structure exists may apply in writing for the issuance
               of a certificate certifying that the use or structure
               existed before the adoption of the ordinance which
               rendered the use or structure nonconforming. The
               applicant shall have the burden of proof.
                                                                            A-5765-17T3
                                           3
Waters testified, as did several neighbors, all of whom objected to defendant's

request. Later testimony from one of the neighbors revealed that she and

plaintiff's wife had actually met with Petrillo in July to express their concerns.

The Board adjourned the first hearing without taking further testimony.

Defendants' subsequent notice to the county planning board in October stated

they "intend[ed] to use the accessory structure for uses customarily incidental to

that of the primary residential structure," not "as a separate dwelling unit."

      For reasons that follow, we need not recount most of the testimony before

the Board at the ensuing meetings. It suffices to say that defendants attempted

to prove the sink, toilet and shower were in the accessory structure prior to a

2003 amendment to Bay Head's zoning regulations. Prior to the amendment, the

ordinance was silent as to whether plumbing fixtures were permitted inside

accessory structures; the amendment added language that prohibited "interior

plumbing except for . . . clothes washers, dryers and work sinks" in any

"accessory building in a residential zone." Borough of Bay Head Ordinance, §

147-6(D)(7). Plaintiff, on the other hand, asserted that if the plumbing fixtures

were installed prior to 2003, they had been abandoned.

      After considering the testimony of Petrillo, who defendants called without

objection as their first witness, nine other witnesses and documentary proof, the


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                                        4
Board voted to issue a certificate of non-conformity as to the sink and toilet, but

not the shower. In its January 2018 memorializing resolution, the Board found

that the "sink and toilet [were] located in the accessory structure since at least

prior to 2003" and no owner had "intended to abandon" their use. Citing

Petrillo's testimony, the Board credited his "opinion that prior to the ordinance

change in 2003, use of the sink and toilet in the accessory structure [was]

permitted" under Bay Head's zoning regulations.

      Plaintiff filed a complaint in lieu of prerogative writs challenging passage

of the resolution as arbitrary, capricious and unreasonable.            Additionally,

plaintiff alleged Petrillo's testimony in favor of the application "effect[ed] the

deliberative process of the . . . Board . . . and poisoned the spirit of impartiality."

Defendants also filed suit challenging the Board's denial of the certificate

regarding the shower. The Law Division judge heard oral argument and reserved

decision.

      He subsequently entered an order vacating the Board's resolution and

dismissing defendants' complaint without prejudice. 3 The order also stated that

the court made "no findings or decision on the substantive merits of" defendants'


3
   Without citation, defendants' brief states they subsequently withdrew their
complaint. In any event, defendants have not cross-appealed the Board's denial
of a certificate of non-conformity regarding the shower.
                                                                               A-5765-17T3
                                          5
application, "[t]herefore res judicata [was] not invoked and [defendants] may

reapply . . . for the same relief . . . . Likewise, [p]laintiff . . . may interpose the

same objections to the requested relief." The judge explained his rationale in a

concise written opinion that accompanied the order.               Quoting Petrillo's

testimony before the Board, and citing our decision in Szoke v. Zoning Board

of Adjustment, Borough of Monmouth Beach, 260 N.J. Super. 341 (App. Div.

1992), the judge concluded, "[o]nce disqualified . . . Petrillo had an obligation

not to further insert himself into the proceedings before the Board.                His

testimony, apparently crucial to [defendants'] cause . . . irreparably tainted the

proceedings . . . ."

      Before us, defendants argue that the factual circumstances here are

materially different from those present in Szoke. They contend that Petrillo's

testimony was essentially factual in nature and concerned matters that were

undisputed, i.e., that Bay Head's zoning regulations prior to 2003 did not

prohibit indoor plumbing in accessory buildings in residential zones. We agree

and reverse.

      As noted, defendants called Petrillo, who had served as Bay Head's zoning

official since 1999, as their witness and asked him to identify the post-2003

ordinance that generally prohibited plumbing fixtures in accessory buildings,


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                                          6
and the 2002 ordinance that was silent on the subject. Defense counsel then

asked:

            Q. [I]t would be your understanding that the zoning
            ordinance prohibiting plumbing fixtures in an
            accessory structure came into effect when this
            ordinance in 2003 was passed?

            A. Yes.

            Q. Prior to that date, was your understanding and your
            recollection that such fixtures would have been allowed
            in an accessory structure?

            A. Yes.

That was the extent of direct examination.

      The trial judge, however, focused on what defense counsel immediately

elicited thereafter on cross-examination.

            Q. Do you know what regulation . . . there was on the
            books prior to that 2003 ordinance, which says: "An
            accessory building shall not have interior plumbing
            except for . . . clothes washers, dryers, and work sinks"?

            A. Well, . . . prior to that ordinance, you were allowed
            to put a bathroom . . . toilet, showers, . . . into the
            accessory structure.

            Q. Where is that in your . . .

                  ....

            Q. . . . prior ordinance?


                                                                         A-5765-17T3
                                        7
            A. It was not . . . prohibited. And if it wasn't
            prohibited, it was permitted. That's the way it was
            written.

            Q. Isn't that the reverse of what normal zoning reads;
            if it's not allowed, it's prohibited?

            A. Not that I'm aware of.

            Q. Was there any specific language in the ordinance
            prior to 2003 that you're aware of, that specifically
            allowed any plumbing fixtures in an accessory
            building?

            A. No. But the . . . reason the ordinance was changed:
            There was concern there were many properties . . . that
            were converting their garages into pool houses, which
            consisted of toilets and showers. And the Board . . .
            was concerned with it, they wanted to prohibit it, so
            they changed the ordinance.

            Q. So they changed the ordinance to only allow certain
            types of fixtures?

            A. Correct.

On redirect, defense counsel asked Petrillo "if a property [owner] had come to

you in 2002 with a request for a building permit to install a sink, a shower, a

toilet in an accessory structure, would you have granted . . . that permit?"

Petrillo answered, "Yes." We have just quoted almost every word of Petrillo's

testimony before the Board.




                                                                       A-5765-17T3
                                        8
      In Szoke, a planning board member recused himself from considering a

development application for undisclosed reasons.        260 N.J. Super. at 343.

Nonetheless, he "participated in the hearing in a significant manner on three

occasions," by offering his "personal knowledge of the municipality's zoning

history," "his opinion as to what the electric company would do" to provide

service to a proposed building on the subdivided lot, and opining that the

development proposal was "the best use for the property." Id. at 343-44. The

recused member then "proceeded to discuss and refute at some length" points

made by one of the objectors. Id. at 344.

      We concluded the first two comments were "innocuous impropriet[ies],"

neither of which were "capable of affecting the deliberative process[.]" Ibid.

However, the recused member's last comments and conduct were "capable of

affecting the deliberations" and "w[ere] totally incompatible with the

noninvolvement which he . . . felt some conflict situation required." Id. at 345.

We rejected the argument that the recused member's abstention from voting

salvaged the board's approval of the application, noting, "To distinguish between

substantive participation in the deliberative process and the technical vote would

elevate form over substance." Ibid.




                                                                          A-5765-17T3
                                        9
      Here, with the exception of the hypothetical question posed to Petrillo on

redirect examination, almost all of his testimony on direct and cross-

examination was "the type of historical information which a zoning board often

relies upon its members to furnish and is totally proper when fully disclosed on

the record." Id. at 343 (citing Baghdikian v. Bd. of Adj. Ramsey, 247 N.J. Super.

45, 49-51 (App. Div. 1991)). Moreover, despite the language contained in the

Board's resolution, Petrillo's testimony was relevant, but somewhat tangential

to, the essential question facing the Board, i.e., whether the fixtures pre-existed

the 2003 amendment, and if so, whether they had been abandoned by prior

owners of the property. Indeed, the Board's decision to conclude the sink and

toilet were pre-existing non-conformities, while the shower was not, reflects the

entire focus of the hearings.

      Moreover, had the issue arisen in a different procedural framework,

Petrillo's opinion about the amended ordinance would have been the central

concern and focus of the Board's decision. For example, had defendants simply

attempted to use the fixtures in the accessory structure without seeking the

certificate of pre-existing non-conformity, plaintiff or some other objector

would have been forced to seek the Board's review, since that would have

ostensibly violated the current ordinance. See N.J.S.A. 40:55D-70(b) (granting


                                                                           A-5765-17T3
                                       10
Board power to "[h]ear and decide requests for interpretation of the zoning map

or ordinance"); N.J.S.A. 40:55D-72(a) (allowing "any interested party" to appeal

to the Board if "affected by any decision of an administrative officer . . . based

on or made in the enforcement of the zoning ordinance."). See also Mullen v.

Ippolito Corp., 428 N.J. Super. 85, 105-06 (App. Div. 2012) (explaining

objector's right to pursue mandamus action when municipality's zoning officer

failed to respond to complaints about zoning violations). The obvious point is

that in those procedural circumstances, the Board would have been required to

consider, indeed review, Petrillo's understanding of the pre- and post-2003

ordinances.

      Lastly, plaintiff never objected to defendants calling Petrillo as a witness,

thereby eliminating the Board's opportunity to consider whether his testimony

was necessary, and if so, whether it should be properly limited. The lack of any

objection also eliminated defendants' opportunity to adduce equivalent

testimony by other means or with another witness.

      As it was, defendants elicited exceedingly limited testimony on direct

examination that was purely factual in nature. It was plaintiff's counsel who

expanded the scope of inquiry by debating Petrillo's interpretation of the earlier

ordinance. The fact that the Board cited Petrillo's "opinion" about the meaning


                                                                           A-5765-17T3
                                       11
of the pre-2003 ordinance was solely the result of plaintiff's counsel's

questioning.   In any event, "where a Board member has such a tenuous

appearance of impropriety as in this case, a party cannot make a strategic

decision to not challenge the alleged impropriety at the hearing in order to save

it as a trump card on appeal, in the event of an adverse decision." Sugarman v.

Twp. of Teaneck, 272 N.J. Super. 162, 171 (App. Div. 1994).

      Reversed. Because the Law Division judge never considered the merits

of plaintiff's challenge to the Board's resolution, we reinstate count one of

plaintiff's complaint and remand the matter to the trial court for further

proceedings. We do not retain jurisdiction.




                                                                         A-5765-17T3
                                      12
