Opinion
A-0012-21
05-12-2022
MONMOUTH COMMERCE CENTER, LLC, Plaintiff-Appellant, v. HOWELL TOWNSHIP PLANNING BOARD, Defendant-Respondent, and HOWELL TOWNSHIP and THE HOWELL TOWNSHIP COUNCIL, Defendants.
Sills Cummis & Gross PC, attorneys for appellant (Meryl A. G. Gonchar and Mark E. Duckstein, of counsel and on the briefs; Adam J. Faiella, on the briefs). Weiner Law Group LLP, attorneys for respondent Howell Township Planning Board (Ronald D. Cucchiaro, of counsel and on the brief; Richard Brigliadoro, John P. Miller and Steven R. Tombalakian, on the brief).
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.
Submitted May 2, 2022
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1585-20.
Sills Cummis & Gross PC, attorneys for appellant (Meryl A. G. Gonchar and Mark E. Duckstein, of counsel and on the briefs; Adam J. Faiella, on the briefs).
Weiner Law Group LLP, attorneys for respondent Howell Township Planning Board (Ronald D. Cucchiaro, of counsel and on the brief; Richard Brigliadoro, John P. Miller and Steven R. Tombalakian, on the brief).
Before Judges Fasciale and Sumners.
PER CURIAM
In this action in lieu of prerogative writs, plaintiff Monmouth Commerce Center, LLC (MCC) appeals from an August 4, 2021 order dismissing MCC's complaint with prejudice and upholding defendant Howell Township Planning Board's (Board) denial of MCC's applications for preliminary, final site plan, and various land use approvals. Judge Owen C. McCarthy entered the order and rendered a lengthy oral opinion. MCC sought the approvals intending to build multiple warehouses (the project). It contends that the Board's denial is arbitrary, capricious, and unreasonable, and is otherwise unsupported by the evidence.
In a related action in lieu of prerogative writs, MCC challenged substantial application fees associated with the project. A different judge dismissed that complaint, MCC appealed, and we reversed the dismissal order. See Monmouth Commerce Ctr. v. Howell Twp., No. A-3278-20 (App. Div. May, 2022).
We conclude the Board's decision was not arbitrary, capricious, or unreasonable, and that the denial is supported by credible evidence in the record. We therefore affirm.
I.
In October 2018, MCC submitted its land use application to the Board for approval of the project. MCC purchased approximately 99 acres of undeveloped land (the property) in Howell Township. MCC proposed to construct a commercial center with 9 buildings, 706 parking spaces, 142 trailer parking spaces, and 234 loading spaces with 5 accessways from the road. This would have required about 74 acres of the wooded area to be disturbed. The property is within the Special Economic Development (SED) Zoning District, which permits warehousing. However, a mixture of residential and industrial uses surrounds the property. Thus, MCC requested variance relief and design waiver relief from municipal ordinances to accommodate the area and property development.
The Board held ten public hearings regarding the application from May 2019 to January 2020. MCC requested variance relief from Howell Township Code Section 188-63(E) (requiring a fifty-foot-wide, four-season landscaped buffer around the perimeter of the property where a property is adjacent to a residential use) and Section 188-79(B)(3)(b) (stating that "outdoor storage shall be permitted in a screened rear yard only"). MCC and the Board disagreed if a variance was required for Section 188-79(B)(3)(b), but the Board concluded that the definition of "outdoor storage" encompassed the proposed truck and/or trailer parking of any type or duration. The Board denied the variance request for Section 188-79(B)(3)(b) and declined to consider the variance for Section 188-63(E).
MCC also requested design waiver relief for: (1) Section 188-106(I)(1), off-street parking and loading; (2) Section 188-32(C)(6), recyclable material storage; (3) Section 188-225(G), streetscape design principles-sidewalks; (4) Sections 188-22, lighting levels, and 188-231(C), number of signs allowed, which the Board declined to address; and (5) Section 188-195(A), Woodlands management. The Board concluded MCC failed to satisfy its burden for each of the design waivers. The Board then denied the site plan application. The Board then officially adopted the resolution on April 2, 2020.
II.
On appeal, MCC raises the following points for our consideration:
POINT I
THE BOARD AND [MOTION JUDGE] INCORRECTLY CONCLUDED THAT A
VARIANCE WAS REQUIRED FOR THE LOCATION AND SCREENING OF TRUCK PARKING, AND WAS NOT JUSTIFIED[.]
A. Applicable Rules [O]f Construction[.]
B. The Board And [Motion Judge] Erroneously Interpreted The Ordinance[.]
C. MCC Satisfied The Requirements For A Variance Even If A Variance W[as] Required For "Outdoor Storage[.]"
POINT II
MCC SATISFIED THE STATUTORY CRITERIA FOR THE GRANT OF SITE PLAN APPROVAL[.]
A. The Access To The Site Was Proven To Operate Safely And Efficiently[.]
B. The Board's Post-Hoc Justification [T]o Reject [T]he Traffic Report Was Improper.
POINT III
THE [MOTION JUDGE] AND THE BOARD ERRONEOUSLY INTERPRETED AND APPLIED THE TREE ORDINANCE TO DENY MCC THE RIGHT TO MAKE A PAYMENT IN LIEU OF PLANTING ADDITIONAL TREES[.]
POINT IV
THE BOARD'S DENIAL OF DESIGN WAIVERS WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE[.]
A. The Design Waiver Regarding Screening [O]f Recycling Storage Areas[.]
B. The Design Waiver Regarding Front Yard Loading Area[.]
C. The Design Waiver Regarding Sidewalks.
POINT V
THE BOARD AND THE [MOTION JUDGE] ARBITRARILY FAILED TO ACT ON CERTAIN REQUESTED RELIEF[.]
POINT VI
MCC SATISFIED THE REQUIREMENTS FOR EXTENDED VESTED RIGHTS[.]
Overall, we disagree with MCC's contentions and primarily affirm, substantially for the reasons expressed by Judge McCarthy. But we nevertheless add these brief remarks.
Our standard review of a Board's actions is well-settled. "When reviewing a trial [judge's] decision regarding the validity of a local board's determination, 'we are bound by the same standards as was the trial [judge].'" Jacoby v. Zoning Bd. of Adj. of Borough of Englewood Cliffs, 442 N.J.Super. 450, 462 (App. Div. 2015) (quoting Fallone Props., LLC v. Bethlehem Twp. Plan. Bd., 369 N.J.Super. 552, 562 (App. Div. 2004)). We "give deference to the actions and factual findings of local boards and may not disturb such findings unless they [are] arbitrary, capricious, or unreasonable." Ibid. Local zoning boards have "peculiar knowledge of local conditions" and must be afforded "wide latitude in the exercise of delegated discretion." Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965).
However, we review questions of law de novo. Dunbar Homes, Inc v. Zoning Bd. of Adjustment of Twp. of Franklin, 233 N.J. 546, 559 (2018). Zoning boards have "'no peculiar skill superior to the courts' regarding purely legal matters." Ibid. (quoting Chicalese v. Monroe Twp. Plan. Bd., 334 N.J.Super. 413, 419 (Law Div. 2000)).
III.
As to the site plan application and the conclusion by the Board that the ingress and egress to the subject property was unsafe, MCC contends that the Board's determination was erroneous. The Board maintains the evidence supports its findings that the site plan was indeed unsafe and non-conforming and that MCC needed variance and design waiver approval.
Under N.J.S.A. 40:55D-50(a):
The planning board shall grant final approval if the detailed drawings, specifications and estimates of the application for final approval conform to the standards established by ordinance for final approval, the conditions of preliminary approval and, in the case of a major subdivision, the standards prescribed by N.J.S.46:26B-1 et seq.; provided that in the case of a planned development, the planning board may permit minimal deviations from the conditions of preliminary approval necessitated by change of conditions beyond the control of the developer since the date of preliminary approval without the developer being required to submit another application for development for preliminary approval.
"The [Municipal Land Use Law] evinces a legislative design to require consistency, uniformity, and predictability in the subdivision-approval process." Pizzo Mantin Grp. v. Twp. of Randolph, 137 N.J. 216, 229 (1994). "The legislative scheme contemplates that a planning board's review of a subdivision proposal, including the layout of the entire design, must be made within the framework of the standards prescribed by the subdivision and, if pertinent, the zoning ordinances." Ibid.
"To accomplish this legislative intent, N.J.S.A. 40:55D-46[(b)] specifically provides that '[t]he planning board shall, if the proposed development complies with the [municipal site plan] ordinance and this act, grant preliminary site plan approval.'" W.L. Goodfellows & Co. of Turnersville, Inc. v. Washington Twp. Plan. Bd., 345 N.J.Super. 109, 115 (App. Div. 2001) (alterations in original). Thus, if no variance or waiver is required, the Board must grant the application. See Klug v. Bridgewater Twp. Plan. Bd., 407 N.J.Super. 1, 11 (App. Div. 2009) (stating "that because the new application complied with all ordinances and required no variance or waiver, the Board was required to approve it").
The Board heard testimony from experts regarding ingress and egress to the property. Specifically, if the property was safe for tractor trailers to turn from a public road into the property and if a five-foot turning radius was adequate to accommodate a tractor trailer turning onto oncoming traffic from the public road when exiting the property. MCC relied on a report by its traffic expert, Justin Taylor, and a proposed installment of a traffic signal. MCC's traffic expert relied upon information from a third party, which the Board was unwilling to accept. The Board determined the traffic signal was irrelevant because it was beyond the Board's jurisdiction to review and approve. The Board only considered if the ingress and egress was safe. Considering the evidence adduced at the hearings, the Board determined that MCC had failed to show the site plan was safe.
The Board now identifies an evidentiary issue concerning . . . Taylor's traffic report. . . . Taylor has honestly testified that neither he nor his office participated in collecting the data for a portion of his report. . . . Taylor therefore had no ability to verify that proper protocol was followed when the [traffic] counts were taken. . . . The Board finds that this was a fatal defect in the Taylor Report.
. . . . Taylor was confident that ingress and egress would be safe with the traffic signal. This statement
was made, however, without actually providing a concept plan to the Board and its professionals to review and ask questions about. A complete analysis was therefore not possible. The absence of any plan did not allow the Board's Traffic Engineer to evaluate the capacity of the intersection. The timing of the signal would also be relevant. The Board finds that . . . Taylor's conclusions were therefore premature.
. . . .
. . . . The Board finds that the fact that Randolph Road[, the public road when exiting the property, ] is a public street to be irrelevant to the safety of ingress and egress. The Board rejects this argument. The Board finds that the [five-foot] turning radius is not adequate to accommodate the turning radius of a tractor trailer. The Board agrees with the testimony of its Traffic Engineer that such a turn would require tractor trailers to turn into oncoming traffic.
The Board's findings are supported by the record.
IV.
Although we conclude that the site plan's denial was not arbitrary, capricious, nor unreasonable, we nonetheless address the Board's denial of MCC's requested variance and design waiver relief. We conclude the Board properly denied the design waivers and one of the variances. And even if we disagree with the Board's interpretation of the term "outdoor storage," and conclude a variance was not needed, this point is moot.
A.
MCC asserts the Board erred in denying two requested variances from the Howell Township Code: (1) Section 188-195 (tree ordinance); and (2) Section 188-79(B)(3) (outdoor storage ordinance). We first address the Board's denial of a variance from the tree ordinance.
1.
MCC contends that its scheme to plant over 1, 000 trees and contribute over $2.5 million to the "Tree Fund" satisfies the tree ordinance, and the Board should have accepted the payment scheme in lieu of planting trees. Section 188-195 states for tree removal and replacement:
C. Township Tree Fund. In the alternative, should the quantity of the trees to be removed be greater than the tree replacement/landscaping plan due to limited available planting area, the applicant may make contribution to be deposited in the Township Tree Fund as established by this article. The contribution, in lieu of planting of trees, shall be $300 per tree. Contribution from the applicant shall not exceed the total sum of $35,000 per developed acre.
The ordinance places a burden on the applicant to show the requisite number of replacement trees cannot be planted because of a limited planting area. MCC argued unconvincingly that its burden would be automatically satisfied upon compliance with all bulk standards. MCC did not comply with all the bulk standards.
The Board determined that for the payment in lieu of tree replacement, there would need to be the variance for outdoor storage, a design waiver relief, and potentially further changes to the site plan. The proposed plan required prospective and unguaranteed relief. The Board concluded that because it had yet to see an alternative plan if it did not grant MCC the requested relief (for the outdoor storage ordinance and design waiver), it could not grant a waiver of the tree ordinance. The Board's decision to deny relief was not arbitrary, capricious, nor unreasonable.
2.
As to the outdoor storage ordinance, the term "outdoor storage," as used in the ordinance, does not explicitly encompass trucks and tractor trailer parking proposed in the site plan.
"Although a municipality's informal interpretation of an ordinance is entitled to deference . . . the meaning of an ordinance's language is a question of law that we review de novo." Bubis v. Kassin, 184 N.J. 612, 627 (2005) (internal citations omitted). The trial judge's determination as to the meaning of the ordinance is similarly "not entitled to any deference" by this court. Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of Twp. of Franklin, 448 N.J.Super. 583, 595 (App. Div. 2017).
Municipal ordinances are "construed under the standards applicable to statutory construction." Fin. Servs., L.L.C. v. Zoning Bd. of Adjustment of Borough of Little Ferry, 326 N.J.Super. 265, 273 (App. Div. 1999). Thus, we must "strive to effectuate the Legislature's intent," as "[l]egislative intent is the paramount goal when interpreting a statute and, generally, the best indicator of that intent is the statutory language." Dunbar Homes, Inc., 233 N.J. at 559 (alteration in original) (internal quotation marks omitted) (quoting State v. Marquez, 202 N.J. 485, 499 (2010)).
"We ascribe to the statutory words their ordinary meaning and significance, and read them in context with related provisions so as to give sense to the legislation as a whole." Carbajal v. Patel, 468 N.J.Super. 139, 149 (App. Div. 2021) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). Thus, the first step is to look to the plain meaning of the ordinance. See DiProspero, 183 N.J. at 493. "[I]f there is an ambiguity in the [ordinance] language that leads to more than one plausible interpretation, we may turn to extrinsic evidence, including legislative history, committee reports, and contemporary construction." Carbajal, 468 N.J.Super. at 149 (first alteration in original) (internal quotation marks omitted) (quoting DiProspero, 183 N.J. at 492-93).
MCC's plan contained trailer/truck parking. The trailers/trucks would contain property to later be distributed. Ordinance Section 188-79(B)(3)(b), the ordinance at issue, permits outdoor storage as an accessory use in limited situations:
Outdoor storage shall be permitted in a screened yard only. No outdoor storage shall be permitted in association with a multipurpose recreation and sports complex.
The parties agree that there is no "screened yard" on site or in the site plan application.
The ordinance itself does not define outdoor storage, and the term "outdoor storage" is susceptible to multiple reasonable interpretations. There are two sections in the code that can help discern the meaning of "outdoor storage": Section 192-18 and Section 188-105(A). In the context of the littering portion of the ordinance under "Outdoor storage restricted," Section 192-18 states:
No person shall leave, store or place upon any property, for a period in excess of 96 hours, where a business is conducted, any equipment, furniture, furnishings or stock-in-trade that is used, acquired or in any way comes into the possession or under the control of the
person owning or in control of such property, unless the same is within a building or structure, or unless enclosed by a solid fence or wall not less than four feet nor greater than six feet in height, constructed so as to keep out children and trespassers. Such buildings and enclosures shall have solid doors or gates at all openings therein for ingress and egress, and suitable locks shall be maintained on such doors or gates. This section shall not apply to motor vehicles or other type of equipment used in the transportation of persons or property.
And as for Section 188-105(A), the Legislature stated for a "Building and use plan," that any proposal must set forth "expected truck and tractor-trailer traffic; . . . [and] outdoor storage of materials and the proposed screening thereof."
The proposed use "involves tractor trailers parked full of product waiting to be stored in the warehouse." The Legislature differentiated between vehicles and outdoor storage in Section 188-105(A). This would indicate that vehicles, generally, are not considered outdoor storage. And in the litter ordinance, the Legislature used terms like "buildings and enclosures" when referencing outdoor storage. Code § 192-18. The ordinance also specifically exempts vehicles "used in the transportation of persons or property." Ibid. Reading the ordinance as a whole, the trailer/truck parking spaces and the vehicles parking in those spaces are not "outdoor storage" and do not have to be located in a screened rear yard. Thus, a variance was not required under Section 188-79(B)(3).
B.
MCC also asserts the Board erred in denying its design waivers for: Recyclable Material Storage, Front Yard Loading Area, and Sidewalks. MCC contends the Board erred because the standard for a design waiver is lower than a variance, and these waivers would have furthered the desired purpose of the ordinance. The Board responds that the requested design waivers were not due to impracticability or hardship, but rather MCC just preferred a different design.
N.J.S.A. 40:55D-51(b) provides:
The planning board when acting upon applications for preliminary site plan approval shall have the power to grant such exceptions from the requirements for site plan approval as may be reasonable and within the general purpose and intent of the provisions for site plan review and approval of an ordinance adopted pursuant to this article, if the literal enforcement of one or more provisions of the ordinance is impracticable or will exact undue hardship because of peculiar conditions pertaining to the land in question.
Like variances, we review design waivers for arbitrary and capricious action. See Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 301 (1994). The primary distinction between waivers and variances is that waivers are exceptions from requirements contained in a site plan ordinance, whereas variances are exceptions from a municipal zoning ordinance. See, e.g., Wawa Food Mkt. v. Plan. Bd. of Borough of Ship Bottom, 227 N.J.Super. 29, 34 (App. Div. 1988) (describing the distinction between waivers and variances).
Howell Township Code Section 188-106(I)(1) provides: "No off-street loading and maneuvering area shall be located in any front yard nor require any part of a street." One of the proposed areas in the site plan required a loading space in the front yard. The Board heard conflicting testimony on the deviation from the ordinance. Elizabeth McManus, MCC's expert, testified that MCC was "looking for relief of less than five percent" of the property frontage along the roads. McManus opined that this was an "almost de minimus exception."
The Board determined that this testimony failed to demonstrate why compliance was impracticable or resulted in a hardship. The Board also determined that the testimony failed to explain "why the proposed building could not be moved or reoriented in order to comply with the design criteria." The Board denied relief to MCC from the design criteria because the purpose of the ordinance was to provide for a desirable visual environment and MCC's testimony only explained that the deviation was minor.
Section 188-32(C)(6) states that "[a]ll outdoor recycling storage areas shall be screened by a solid uniform wall or fence. Landscaping shall also be provided around any outdoor recycling storage area in an aesthetically pleasing manner due to extensive buffering." McManus testified that because the proposed site would be a warehouse facility and not a commercial use the garbage and recycling enclosures need to be "located along the loading areas." She further opined that they would have limited public visibility. The Board concluded that this argument is not "specific to this particular piece of property" as required for design waivers. Further, having limited public visibility still frustrates the purpose of the ordinance-to provide for "a desirable visual environment whether it is from the street or from within the property."
Section 188-225(G)(1) requires that "[a]ll lots shall have private walkway access to a public sidewalk in the right-of-way." The Board heard testimony arguing for a design waiver. McManus testified that:
because we have a lack of pedestrian destinations in this area and a lack of pedestrian destinations on this particular site. We also have a lack of connecting sidewalks in the area. In addition, by not providing the sidewalks, we're able to reduce impervious cover and we're able to reduce tree clearances along the property lines, and so for all of those reasons I think that the waiver or the exception to not provide a sidewalk is appropriate.
The Board concluded that this testimony did not even touch upon "how compliance would result in impracticability or hardship based upon the peculiar characteristics of the land." And "that the lack of sidewalks in the area is also not a persuasive argument."
The Board's decisions to deny the design waivers for these three ordinances were not arbitrary, capricious, or unreasonable because-based on this record-MCC failed to show why compliance was impracticable or resulted in a hardship.
To summarize, we agree with MCC that the outdoor storage ordinance did not apply to the truck/trailer parking it proposed. But the Board's rejection of the site plan, variance for the tree ordinance, and design waivers was not arbitrary, capricious, or unreasonable, and is supported by the credible evidence in the record.
To the extent we have not addressed any of MCC's remaining contentions, we conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.