Opinion
DOCKET NO. A-0701-14T1
08-18-2016
MUNICO ASSOCIATES, L.P., a Limited Partnership of the State of New Jersey, and WYCKOFF RESIDENTIAL, L.L.C., a Limited Liability Company of the State of New Jersey, Plaintiffs, v. INSERRA SUPERMARKETS, INC., a Corporation of the State of New Jersey, and the PLANNING BOARD OF THE TOWNSHIP OF WYCKOFF, Defendants. THE STOP & SHOP SUPERMARKET COMPANY, L.L.C., Plaintiff-Appellant, v. PLANNING BOARD OF THE TOWNSHIP OF WYCKOFF, and INSERRA SUPERMARKETS, INC., Defendants-Respondents.
Gail L. Price argued the cause for appellant (Price, Meese, Schulman & D'Arminio, P.C., attorneys; Ms. Price, Kathryn J. Razin and David J. Reich, on the briefs). Joseph C. Perconti argued the cause for respondent Planning Board of the Township of Wyckoff. Ira E. Weiner argued the cause for respondent Inserra Supermarkets, Inc. (Beattie Padovano, L.L.C. and Wells, Jaworski & Liebman, L.L.C., attorneys; John J. Lamb, Mr. Weiner, and James E. Jaworski, of counsel and on the briefs; Daniel L. Steinhagen and James J. Delia, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2463-13. Gail L. Price argued the cause for appellant (Price, Meese, Schulman & D'Arminio, P.C., attorneys; Ms. Price, Kathryn J. Razin and David J. Reich, on the briefs). Joseph C. Perconti argued the cause for respondent Planning Board of the Township of Wyckoff. Ira E. Weiner argued the cause for respondent Inserra Supermarkets, Inc. (Beattie Padovano, L.L.C. and Wells, Jaworski & Liebman, L.L.C., attorneys; John J. Lamb, Mr. Weiner, and James E. Jaworski, of counsel and on the briefs; Daniel L. Steinhagen and James J. Delia, on the briefs). PER CURIAM
Inserra Supermarkets, Inc. (Inserra) filed a development application with the Planning Board of the Township of Wyckoff (the Board) seeking to develop Block 216.01, Lot 21.02, an irregularly-shaped parcel of approximately 7.4 acres (the subject property), and construct a two-story ShopRite supermarket. The property was located in the township's B-5 Community Shopping Center Zone, which included among its permitted uses "[f]ood stores, retail." Along the subject property's southern border was Block 200, Lot 1.03, approximately 2.7 acres owned by the Susquehanna Railroad (the railroad property), which was non-conforming in size and other features. When originally submitted, Inserra's development application also sought approval to subdivide the railroad property and add a small portion, approximately 9088 square feet, to the subject property.
Inserra proposed constructing the ShopRite on the far east side of the subject property after demolishing an existing vacant building that once housed supermarkets. In addition to seeking site plan and subdivision approval, Inserra sought several variances pursuant to N.J.S.A. 40:55D-70(c).
Boulder Run Shopping Center, owned by Munico Associates, L.P. (Munico), lies to the east and southeast of the subject property, and includes a Stop & Shop supermarket, owned and operated by The Stop & Shop Supermarket Company, LLC (Stop & Shop). We digress briefly to describe some salient history regarding Munico's property.
Decades ago, Wyckoff faced a Mount Laurel builder's remedy lawsuit. Munico agreed to develop the site to include 104 units of rental housing, sixteen of which would be affordable. The plan was negotiated with the Council on Affordable Housing in an attempt to satisfy Wyckoff's affordable housing obligations. When local opposition arose, Munico agreed to increase the retail use of the property and decrease the number of residential units. The agreement led to municipal action creating overlay zoning for the site, permitting its development as a mixed-use site that included sixteen affordable housing units above retail space.
S. Burlington Cty. NAACP v. Twp. of Mount Laurel, 92 N.J. 158 (1983); S. Burlington Cty. NAACP v. Twp. of Mount Laurel, 67 N.J. 151, appeal dismissed and cert. denied, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975).
Commencing in July 2010, the Board conducted thirty-eight hearings over more than two years. After the ninth hearing, Inserra withdrew its subdivision application. On February 13, 2013, the Board approved a memorializing resolution granting Inserra site plan approval with variances and waivers.
Stop & Shop and Munico filed separate actions in lieu of prerogative writs, and Inserra and the Board filed their answers. The parties engaged in subsequent motion practice that resulted in two interlocutory orders that are the subject of appeal, and which we discuss in further detail below. On August 19, 2014, the Law Division judge filed an order memorializing his earlier written decision dismissing both complaints.
Stop & Shop and Munico filed timely appeals. We were advised at oral argument that Munico had amicably adjusted its dispute with the Board and Inserra and withdrew its appeal. We therefore consider only the arguments raised by Stop & Shop.
Stop & Shop contends that the Board did not have jurisdiction to consider the application because "supermarkets" were not permitted uses in the zone, and the Board's "actions," while the subdivision was included in Inserra's development application, were "void for lack of jurisdiction." Stop & Shop also argues that the Board's traffic expert had a conflict of interest that "irreversibly tainted the Board hearing process." Stop & Shop further contends that the Board's approval regarding the traffic design of the application was arbitrary, capricious or unreasonable, and its grant of certain variances discriminated against nearby "low-income residents." Additionally, Stop & Shop argues Board members were biased and "improperly used work sessions to plan strategy" in violation of the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21 (OPMA).
Having considered these arguments in light of the record and applicable legal standards, we affirm.
I.
We set forth some well-known principles. "[W]e apply the same standard as the trial court does when evaluating the decision of a board." D. Lobi Enters., Inc. v. Plan./Zoning Bd. of Borough of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009) (citing N.Y. SMSA, L.P. v. Bd. of Adj. of Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004)). A reviewing court can "set aside" a municipal board's decision "when it is 'arbitrary, capricious or unreasonable.'" Cell S. of N.J., Inc., v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)). We may "not substitute [our] judgment for that of [the] [B]oard even when [we are] doubtful about the wisdom of the action." Ibid. The Board's actions are presumed valid, and the party "attacking such action [has] the burden of proving otherwise." Ibid. (alteration in original) (quoting N.Y. SMSA L.P. v. Board of Adj. of Twp. of Bernards, 324 N.J. Super. 149, 163 (App. Div. 1999)).
"'[B]ecause of [its] peculiar knowledge of local conditions,'" the Board's factual findings are entitled to substantial deference and are presumed to be valid. Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990) (quoting Medici, supra, 107 N.J. at 23); see Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965). The Board's conclusions of law, however, are subject to de novo review. Nuckel v. Little Ferry Plan. Bd., 208 N.J. 95, 102 (2011) (citing Fallone Props. L.L.C. v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 561 (App. Div. 2004)); Bubis v. Kassin, 184 N.J. 612, 627 (2005). While "a municipality's informal interpretation of an ordinance is entitled to deference, that deference is not limitless," and we consider the "meaning of an ordinance's language" de novo. Dowel Assocs. v. Harmony Twp. Land Use Bd., 403 N.J. Super. 1, 29-30 (App. Div.) (quoting Bubis, supra, 184 N.J. at 627), certif. denied, 197 N.J. 15 (2008).
When a development application for site plan approval is filed, a planning board may consider requests for variances that are cognizable under N.J.S.A. 40:55D-70(c). N.J.S.A. 40:55D-60(a). The applicant bears the burden of proving entitlement to the variance. Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 29-30 (2013). However, variances seeking to permit or expand a non-conforming use must be brought before the Board of Adjustment. Nickels v. City of Wildwood, 140 N.J. 261, 266 (1995); see also Najduch v. Twp. of Independence Plan. Bd., 411 N.J. Super. 268, 276 (App. Div. 2009) (noting the power to grant a (d) variance is exclusive to the Board of Adjustment); N.J.S.A. 40:55D-70(d).
II.
A.
At the first hearing, Stop & Shop argued that the Board lacked jurisdiction because a "supermarket" was not a permitted use in the zone. In further support, it pointed to the permitted uses in the B-5/SDAH-2 Zone that included the Boulder Run site, which specifically included "supermarkets." The first trial judge rejected these arguments, concluding that the general term — retail food store — included supermarkets. Therefore, the application concerned a permitted use in the zone and was within the Board's jurisdiction. We agree.
In the plain and common usage of the term, a supermarket is clearly a retail food store, and supermarkets were permitted on the subject property in the past. As noted, the adoption of the B-5/SDAH-2 Planned Community Shopping Center/Affordable Housing Zone in 2006 was part of a consent agreement regarding the Boulder Run site, and inclusion of the term "supermarket" has no significance beyond the specific overlay zoning intended to consummate the settlement. Moreover, the regulations for the B—1A Triangle Business Zone, permitted "Retail stores, such as florists, food, furniture, furriers, and stores of a similar type (excluding supermarkets)." Clearly, had the governing body intended to exclude supermarkets from the general "retail food stores" permitted in the B-5 Business Zone, it knew how to do so.
Stop & Shop also argues that the Board lacked jurisdiction over the application as originally submitted, because it requested subdivision of the railroad property, which was a non-conforming use. Stop & Shop contends that the subdivision would have resulted in an intensification of a non-conforming use, thereby requiring a (d) variance. Although Inserra withdrew its subdivision application after nine hearings, Stop & Shop asserts that any action taken by the Board prior to the withdrawal is a nullity, and it claims the Board could not even consider the evidence adduced at the proceedings prior to the withdrawal. Stop & Shop argues the withdrawal failed to "cleanse[] [] the jurisdictional defect." The trial judge rejected this argument, and so do we.
Initially, we note that "the question of whether an expansion or an intensification of a nonconforming use is substantial enough to require a (d)(2) variance is a fact-sensitive one which ought, in the first instance, to be considered by the Board." Nuckel, supra, 208 N.J. at 110.
It is the actual diminution in the buffer zone between a nonconforming use and surrounding conforming uses, and not why it occurred, that is the centerpiece of the analysis. In such a case, the focus should "be on the quality, character and intensity of the use, viewed in [its] totality and with regard to [its] overall effect on the neighborhood and the zoning plan."Therefore, Stop & Shop's assertion that diminishing the railroad property by 9088 square feet resulted in an intensification of its nonconformity, and the subdivision automatically divested the Board of jurisdiction, is inaccurate. Simply put, the Board never conducted the fact-sensitive analysis required because Inserra withdrew the subdivision request.
[Ibid. (alteration in original) (quoting Town of Belleville v. Parrillo's, Inc., 83 N.J. 309, 314 (1980)).]
Additionally, as noted in our earlier discussion, Inserra was entitled to submit its site plan and variance application to the Board. The proceedings held prior to the withdrawal of the subdivision request were necessary for the Board's consideration of the application before it, and Stop & Shop fails to allege that any evidence adduced before the Board prior to the subdivision withdrawal actually tainted the Board's decision or otherwise prejudiced Stop & Shop. We conclude that Stop & Shop's jurisdictional arguments provide no basis to reverse.
B.
Gary W. Dean, of the engineering firm of Dolan & Dean Consulting Engineers, LLC, was retained by the Board as a consulting traffic engineer for the Inserra project on February 9, 2011. He attended nine hearings on the Board's behalf, and at the November 30, 2011 hearing, asked some questions of Stop & Shop's traffic expert. In March 2012, Dean forwarded his initial traffic impact study to the Board.
Invoices Dean submitted showed he began working on the project in November 2010. --------
Meanwhile, on November 9, 2011, Dolan & Dean issued a traffic impact report for property in the Borough of New Milford (the New Milford D&D report). In later proceedings before the Board, Dean testified that he was unaware of the New Milford project and his business partner, Dolan, was performing the work. Dean had checked for conflicts of interest when he began the Wyckoff engagement and the firm was not doing any work involving Inserra as a client.
The New Milford D&D report involved a project that would include a new supermarket, a new bank, and 221 apartments, but the type of supermarket and supermarket lessor's name did not appear in the report. Dolan testified in deposition testimony that she first learned that an Inserra ShopRite planned to occupy the supermarket in the New Milford development on February 9, 2012. She advised Dean soon thereafter.
Dean learned from Dolan that her client in New Milford was an engineering firm, L2A Engineering, which in turn was retained by New Milford Redevelopment Associates, LLC (NMRA). Dean concluded he had no conflict of interest, but nevertheless brought it to the attention of the Board's chairman, its counsel, and Inserra's counsel.
At the Board's March 26, 2012 meeting, the issue of Dean's possible conflict was raised by Munico's counsel. The hearing was adjourned, and a briefing and discovery schedule was set by the Board. After considering the submissions, the Board voted to terminate Dean's services, retain a new traffic expert and continue the hearings without according any weight to Dean's prior report. The Board retained Boswell McClave Engineering to analyze the traffic issues anew, and the new firm submitted a report dated June 15, 2012. Berge V. Tombalakian, who authored the report, certified that he had "not reviewed any reports, comments, questions or testimony made by the . . . Board's prior traffic expert . . . ." Tombalakian subsequently presented his findings and opinions to the Board and was subject to cross-examination.
In the Law Division, the parties brought cross-motions for summary judgment addressing Dean's conflict of interest. In a January 8, 2014 written opinion, the trial judge concluded there were two essential issues: whether Dean had a disqualifying conflict of interest, and, if so, whether the Board employed sufficient remedial procedures when the conflict was raised. The judge concluded that not only was there no disqualifying conflict of interest, but also that the Board "acted appropriately to remove any perceived taint." The January 13, 2014 order granted summary judgment to Inserra and the Board and dismissed one count of Stop & Shop's complaint.
Before us, Stop & Shop renews the arguments made in the Law Division. It argues that Dean violated the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 to -22.25 (the LGEL), and that his connection with Inserra in the New Milford project was "clear" and not "attenuated" as the trial judge found. Stop & Shop argues the Board's attempt to cure the problem was insufficient. The LGEL provides in pertinent part:
No local government officer or employee shall act in his official capacity in any matter where he, a member of his immediate family, or a business organization in which he has an interest, has a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment[.]"A court's determination 'whether a particular interest is sufficient to disqualify is necessarily a factual one and depends upon the circumstances of the particular case.'" Grabowsky v. Twp. of Montclair, 221 N.J. 536, 554 (2015) (quoting Van Itallie v. Borough of Franklin Lakes, 28 N.J. 258, 268 (1958)). "[A] court need not ascertain whether a public official has acted dishonestly or has sought to further a personal or financial interest; the decisive factor is 'whether there is a potential for conflict.'" Ibid. (quoting Wyzykowski v. Rizas, 132 N.J. 509, 524 (1993)). While the Court has recognized that disqualification is required when the public official's duties conflict with indirect pecuniary interests, Wyzykowski, supra, 132 N.J. at 525, "[t]he ethics rules must be applied with caution, as '[l]ocal governments would be seriously handicapped if every possible interest, no matter how remote and speculative, would serve as a disqualification of an official.'" Grabowsky, supra, 221 N.J. at 554 (second alteration in original) (quoting Wyzykowski, supra, 132 N.J. at 523).
[N. J.S.A. 40A:9-22.5(d).]
In this case, the trial judge found that Dolan's relationship was with an engineering firm retained by the developer, and Inserra was not the developer of the New Milford project. Further, he found that Inserra was only a prospective tenant of the proposed project.
While these facts alone present a close question, it is undisputed that neither Dean nor Dolan had any knowledge that Inserra was a potential tenant in the New Milford project until February 2012. By then, Dolan was aware that Inserra was the likely tenant for the supermarket, and the minutes of the New Milford Zoning Board of Adjustment reflect that. Certainly by February 2012, Dean and Dolan's obligation as neutral consultants to the Board had the potential to indirectly conflict with their retained responsibilities to promote the benefits of their client's application in New Milford.
However, the trial judge also found that the Board took the necessary remedial steps, and the proceedings need not have started anew. He relied upon our holding in Klug v. Bridgewater Township Planning Board, 407 N.J. Super. 1 (App. Div. 2009). There, the applicant's environmental consultant subsequently became the township's planner, rendered a report for the board on the application and sat with the board during proceedings where it was considered. Id. at 5-6. Finding the consultant's involvement constituted a potential conflict of interest, the trial judge remanded the matter to the board for "de novo reconsideration of the record" without regard to the consultant's initial report or her memo to the board. Id. at 7. The board approved the application and a second trial judge affirmed upon the plaintiffs' subsequent challenge. Id. at 8.
We rejected the plaintiffs' argument that the board was required to begin hearings anew. Id. at 9. Agreeing that the consultant had an obvious conflict, we stated that "[t]he inquiry concerns the appropriate remedy." Id. at 10. "When there is a conflict, the court has some flexibility; however, the ultimate goal is to assure the public that the integrity of the proceedings has been maintained." Ibid. Among other things, we concluded an entirely new hearing was uncalled for, because the board did not consider the consultant's prior reports, but rather considered new reports furnished by new experts and held new hearings at which both parties presented evidence. Id. at 12.
Inserra and the Board argue we should reach the same conclusion we did in Klug. Stop & Shop argues that the Board did not purge the taint of Dean's early participation in the hearings, relying in part on our decision in Szoke v. Zoning Board of Adjustment of Borough of Monmouth Beach, 260 N.J. Super. 341 (App. Div. 1992).
There, a board member announced his recusal from consideration of a development application for unstated reasons. Id. at 343. However, he continued to participate in the hearings in a significant manner. Ibid. We rejected attempts to minimize the member's participation simply because he never voted on the application. Id. at 345. We said, "[t]he evil of apparent partiality -- the perception of less than a fair shake -- inheres in the clearly expressed participation in the deliberative process by one whose own conscience required abstinence." Ibid.
In this case, Dean was a consultant, not a member of the Board, and while his participation was clearly governed by the LGEL and other precedent, the Board took appropriate steps to remove any taint his conflict of interest may have provoked when it was discovered. The Board terminated his retention and hired a new consultant, who furnished a new report in which he certified that he did not review or rely upon Dean's prior report or testimony resulting from Dean's involvement at the hearings. We find no basis to reverse on this point.
C.
Stop & Shop argues that the Board acted in an arbitrary, capricious or unreasonable manner by ignoring legitimate traffic safety concerns and by not requiring, as a condition of approval, that an intersection near the subject property be "signalized." The arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). We add only the following.
The traffic issues surrounding the development applications received extensive treatment during the hearings before the Board. In the end, the Board accepted the testimony from Inserra's experts regarding the traffic circulation and not the contrary opinions from the experts for the objectors. The Board was entitled to accept or reject all or some of the expert testimony as it saw fit. Klug, supra, 407 N.J. Super. at 13. "[A] challenger must show that the Board engaged in 'willful and unreasoning action, without consideration and in disregard of circumstances. Where there is room for two opinions, action is [valid] when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached.'" Northgate Condo. Ass'n v. Borough of Hillsdale Plan. Bd., 214 N.J. 120, 145-46 (2013) (second alteration in original) (quoting Worthington v. Fauver, 88 N.J. 183, 204-05 (1982)). Stop & Shop clearly has failed to carry this burden.
The B-5 Zone regulations required a one-hundred-foot rear yard setback and a twenty-five-foot buffer strip between any adjacent property in a residential zone. Stop & Shop also argues that the Board's approval of variances from these regulations was arbitrary, capricious and unreasonable. It specifically argues that the Board discriminated against low-income residents by permitting these deviations. We again reject the claim.
The Board's memorializing resolution stated:
Regarding the adjoining property in the B-5/SDAH-2 zone the Board found that the B-5/SDAH-2 zone is in fact a mixed use zone and the residential zone requirements should not apply. The adjoining B-5/SDAH-2 zone is primarily commercial with only affordable housing apartments above retail stores and as such the intent of the governing body was not to apply the same bulk requirements as required in the residential zone. The Board concludes that neither the 100[-]foot setback nor the 25[-]foot landscape buffer is required between the B-5 zone and the Boulder Run property in the B-5/SDAH-2 zone. Variance for the setback adjoining the B-5/SDAH-2 property is approved at 5 feet at
its minimum width and 25 feet to its maximum width. The Planning Board recognizes that the subject property could not be developed without granting such variances as a result of the peculiar and exceptional practical difficulties, or undue and exceptional hardship that would [be] imposed upon the Applicant as a result of the property's irregular shape.The trial judge concluded that the setback and buffer regulations did not apply because the B-5/SDAH-2 zone was not a "residential zone," and the objectors failed "to support th[e] contention that a commercial zone must be considered a residential zone . . . ."
Although the zoning regulations include dimensional requirements that apply to "residential zones," the regulations do not define what is a residential zone. Several zones are exclusively residential; other zones, like the B-5/SDAH-2 zone, permit mixed uses, including residential uses. Other provisions of the regulations require buffer strips for developed lots in zones, including the B-5 and B-5/SDAH-2 zones, if those developed lots are "adjacent to a residential zone." The regulations are ambiguous.
The Board's interpretation of the ordinance reflects its local knowledge of the Boulder Run site, in that the affordable residential housing units were located roughly in the middle of the property, i.e., some distance from the subject property. Moreover, we reject the claim that the Board's decision was discriminatory. Indeed, within the regulations for other zones permitting affordable housing units, the permitted buffer was five feet, precisely what the Board approved for the subject property and the amount of buffering that currently existed on the site. Finally, the Board's resolution reflects its careful consideration of the evidence supporting the variances. See Ten Stary Dom P'ship, supra, 216 N.J. at 29-30.
D.
In its final two points, Stop & Shop contends that the bias of members of the Board tainted the proceedings, and the Board violated the OPMA and the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, by holding working sessions to "plan strategy." The first argument requires little discussion. R. 2:11-3(e)(1)(E).
The trial court considered the portions of the proceedings that allegedly demonstrated bias and concluded they only reflected the Board members' "exasperation with the length of the proceedings," and "in no way show hostility towards [Munico or Stop & Shop]." We have reviewed the specific portions of the proceedings that Stop & Shop cites in its brief, and we agree with the trial judge's assessment.
Stop & Shop's claim regarding the work sessions requires us to provide some factual context. The Board conducted work sessions that were properly noticed in accordance with the OPMA, as reflected in the minutes of those work sessions, which were open to the public and occurred prior to the actual meetings. The Board's planner, Michael F. Kauker, prepared a two-page memorandum, dated December 23, 2011, that set forth his opinion as to whether a supermarket was a permitted use in the zone, indicating the memo was for the Board's "review in preparation for our upcoming work session on December 28, 2011." However, there are no minutes or records of a session having been held on December 28, 2011.
When the issue was raised before the trial judge, Inserra furnished the certification of the Board's secretary, whose responsibilities included keeping minutes, scheduling agendas and maintaining records from the Board's work sessions. She stated that no work session or Board meeting took place on December 28, 2011.
The trial judge concluded that no substantive discussions regarding the application took place during any of the work sessions, so Munico, Stop & Shop and the public-at-large were not deprived of their rights. He also determined that there was no work session on December 28, 2011, and Kauker was mistaken.
Stop & Shop argues the Board's use of "the work session procedure" was improper and contrary to the OPMA and the MLUL. It also questions the judge's factual determination that there was no meeting, noting an entry on one of Dean's invoices reflecting a client meeting on December 28, 2011. Additionally, relying on the Law Division's decision in Stewart v. Planning Board of Township of Manalapan, 334 N.J. Super. 123 (Law Div. 1999), Stop & Shop argues that the only remedy for a notice violation of the MLUL or the OPMA is to void all the proceedings.
Initially, the facts of this case bear no resemblance to those presented in Stewart, where the court concluded that the board and the applicant held private meetings about the application without any notice at all. Id. at 129. The court properly concluded that the procedure violated both the MLUL and the OPMA and required that the approvals be set aside. Id. at 129-32.
Here, the record fails to reveal that any meeting took place on December 28, 2011. Certainly, Dean's invoice does not prove the Board met as a body to consider the application, and the unchallenged certification of the Board's secretary reflects no working session or meeting ever took place. Furthermore, it is entirely unclear why Stop & Shop failed to raise this concern at any point during the many sessions and hearings after December 28, 2011.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION