Opinion
DOCKET NO. A-0876-12T4
07-18-2014
RIYA CRANBURY HOTEL, LLC, Plaintiff-Respondent, v. PLANNING BOARD OF THE TOWNSHIP OF CRANBURY, Defendant-Respondent, and COMSLEEP PROPERTIES, LLC, Defendant-Appellant.
Heilbrunn Pape, LLC, attorneys for appellant (Peter H. Klouser, on the brief). Gasiorowski & Holobinko, attorneys for respondent Riya Cranbury Hotel, LLC (Alexis L. Gasiorowski and Ronald S. Gasiorowski, on the brief). Mason, Griffin & Pierson, attorneys for respondent Planning Board of the Township of Cranbury (Trishka Waterbury Cecil, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson, Lihotz and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8233-11.
Heilbrunn Pape, LLC, attorneys for appellant (Peter H. Klouser, on the brief).
Gasiorowski & Holobinko, attorneys for respondent Riya Cranbury Hotel, LLC (Alexis L. Gasiorowski and Ronald S. Gasiorowski, on the brief).
Mason, Griffin & Pierson, attorneys for respondent Planning Board of the Township of Cranbury (Trishka Waterbury Cecil, on the statement in lieu of brief). PER CURIAM
In this appeal, defendant, Comsleep Properties, LLC (Comsleep), appeals from the trial court order granting the application by plaintiff, Riya Hotel of Cranbury (Riya), to reverse the Board's approval of Comsleep's application finding the Concept Plan insufficient. We conclude the Board had jurisdiction to consider the site plan approval application, and Comsleep's application did not propose any additional uses beyond what was encompassed in the original 1998 application for preliminary and final site plan approval for the location. We additionally conclude the Board's approval of Comsleep's most recent application was not arbitrary, capricious or unreasonable. We therefore reverse.
In 1998, the Board granted a different developer's application for preliminary and final major site plan approval for Phase I, and preliminary and major site plan approval for Phase II, with variances and design waiver of its planned industrial park consisting of Block 6, Lots 5, 6, and 10 (site), on the township tax map (original approvals). At that time, the original applicant proposed that three buildings would be constructed with a total floor area of 838,496 square feet, consisting of 546,496 square feet of warehousing space, 40,000 square feet of office space in two buildings, and a four-story, 212,000 square foot office building. The warehousing space would have equaled 65.18% of the total gross floor area. The proposal called for completion of the project in two phases, with Phase I involving the construction of two warehouses and office mix structures with all associated facilities, while Phase II contemplated construction of a four-story office building. All of the proposed structures were appropriate for the Research Office and Light Industrial (RO/LI) zone district. At the time the Board approved the original approvals, a "proposed overall development plan" was required under Section 150-24(C)(3)(k) of the Cranbury Township Ordinances (70/30 Ordinance), meaning that the overall development plan would have "no more than 70% of gross floor area . . . devoted to warehouse and light industrial uses[,]" and the "other 30% shall be used for any permitted use." The original approvals for the site met this requirement.
Comsleep subsequently acquired the site and proceeded with its development. The original approvals were later amended when the Board granted Comsleep amended preliminary and final site plan approval on February 23, 2006, to replace the proposed Phase II office building with a 45,450 square foot hotel conference facility with seventy-six guest rooms (amended Phase II approvals). Comsleep's present application proposes to further amend the amended Phase II approvals by increasing the size of the hotel conference center facility to 57,582 square feet with 100 guest rooms, and adding development of a separate 19,488 square foot Montessori daycare facility.
The application sought to develop the site in two stages. The hotel with sixty-eight rooms, as well as the daycare facility, will be constructed first, followed next by construction of a 14,496 square foot addition to the hotel, which would include an additional thirty-two rooms.
The Board conducted public hearings on non-continuous days between May and September 2011. At the May hearing, the Board reviewed Comsleep's Concept Plan, which showed the proposal could meet the 70/30 Ordinance. At that hearing, the Board also concluded it had jurisdiction to consider the application, and proceeded to consider its merits.
In support of the application, Comsleep presented testimony from numerous witnesses, including those with experience and expertise in engineering, architecture, planning and design. Riya, a competitor, presented the testimony of Gordon Gemma, who testified that he is a licensed professional planner and an attorney, but is not a licensed engineer. The Board's professional planner, Richard Preiss, also testified.
Upon completion of the hearings, the Board approved the application and, on November 3, 2011, adopted a resolution memorializing its findings. The resolution included the Board's determination that it possessed the requisite jurisdiction to consider the application. It credited the testimony of Comsleep's professional engineer, Edwin Caballero of Birdsall Services Group, Inc., who opined that the application, as proposed, for full site build-out could be constructed and that impervious coverage and stormwater management could be addressed on the premises, thus satisfying the floor space mix required by the 70/30 Ordinance. It discredited the argument advanced by plaintiff's attorney, Ronald S. Gasiorowski, challenging the opinion expressed by Caballero. The Board found that "Mr. Gasiorowski has presented no engineering testimony that the site cannot be engineered nor has Mr. Gasiorowski presented any engineering evidence to refute the testimony of Mr. Caballero." The Board stated:
The Board also is persuaded by the testimony of the Board's professional planner and the Board concurs that the balance of the site is not required to be fully engineered in order to present the Concept Plan for the final phasing, and further that the Concept Plan is sufficient to demonstrate that the Ordinance 70/30 split can be addressed in this planned industrial park. The Board has historically interpreted Ordinance 150-24[(]C[)](3)(k) to accommodate phasing on a planned industrial
park and has not required that the full site be fully engineered for a phased project. Indeed, for this planned industrial park, the Board has permitted phased site plan approval and has not required full site engineering as is evidenced by the prior Resolutions of Approval granted to this site. The Board is satisfied that the applicant has presented a Concept Plan for the final phase of the site which demonstrates that the 70/30 gross floor space mix required by 150-24[(]C[)](3)[(]k[)] can be accommodated on the site, and that therefore this Board has jurisdiction over this site plan application. The Ordinance regulates "Planned industrial parks" of a size not less than fifty acres in contiguous parcels. The Board finds that a planned industrial park of that size will likely, and historically in the Township of Cranbury has, been built out in phases. The Board does not find that the Ordinance Section requires that a continuous 70/30 split must be present on the site at all times, but rather than upon final completion of site development the 70/30 split must be accomplished. If the final phase of the planned industrial park cannot be designed to meet the requirement of Section 150-24[(]C[)](3)[(]k[)], then at the time of final phase site plan application, the applicant would have to seek relief under N.J.S.A. 40:55D-70(d), but it is premature and speculative at this time for the Board to conclude that the applicant cannot or will not meet the Ordinance standards in the future. The Board concludes that this Planning Board properly has jurisdiction to hear the application presently pending.
The resolution contained the Board's additional findings related to Comsleep's request for variances and/or waivers related to signage and proposed meeting room space. Finally, the Board addressed the request for a variance related to the requirement that no more than 25% of parking spaces are permitted in the front yard because the proposal called for 27.23% of front yard parking spaces.
Next the Board addressed Gasiorowski's contention the application failed to meet the 3000 square foot requirement of Ordinance 150-24(C)(4)(i). The Board stated that the
applicant has previously secured a variance from this requirement, and has requested a bulk variance from this requirement again in the present application, and the Board does not find this objector argument to be persuasive because the 3000 square foot requirement is the subject of a bulk variance request herein.The Board's findings also included its consideration of the opinion expressed by Gordon Gemma, that the proposed parking garage set forth in the application is not permitted as an accessory use under the Ordinance and therefore the Concept Plan included in the Application is not "legitimate." The Board found:
[T]he Board finds that Ordinance Section 150-24 explicitly requires "parking" to be accommodated on the site, not as an "accessory use"- but rather as a requirement at 150-24[(]C[)](g) which allows "parking facilities" and therefore is not persuaded by the objectors['] argument in that regard. In other words, parking is required to be addressed on the site explicitly as a result of the requirements of 150-24[(]C[)](g), and parking is not governed as an "accessory
use" as put forth by Mr. Gemma. The fact that the list of permitted accessory uses does not include parking is therefore immaterial because parking instead is addressed in another section of the RO/LI Ordinance.
Plaintiff filed a complaint in lieu of prerogative writs seeking to set aside the Board's decision. Specifically, plaintiff argued the Board approved, contrary to the requirements of the 70/30 Ordinance, a plan that consisted of approximately 85% warehouse, rather than the 70% mandated. Plaintiff's counsel additionally argued the application should have been brought before the Zoning Board of Adjustment. He stated, "the Planning Board doesn't have jurisdiction to hear this [application] . . . ."
The trial court agreed the Board clearly had exclusive jurisdiction over an application to modify a planned development, but found the Board "misunderstood the applicable law, and based its decision, in part, on the misconception that future applications could be heard by the zoning board of adjustment, a clear indication that the Board did not consider the entirety of the development as a single entity as it did in 1998."
The court additionally concluded:
The [C]oncept [P]lan presented by Comsleep was only to show that the remainder of the site could accommodate additional commercial
development without violating the 70/30 use mix requirement, but as Riya points out, that could not be determined without having some engineering analysis performed on the remainder of the site. The [C]oncept [P]lan was insufficient.
. . . .
[T]he Board . . . inaccurately left open the possibility that if in the future a use that is not permitted is proposed in order to satisfy the 70/30 use mix ordinance, the zoning board of adjustment will have jurisdiction to grant a "d" variance.
The court reversed the decision of the Board, deeming the Resolution null and void. On appeal, Comsleep raises the following points for our consideration:
POINT I
THE PLANNING BOARD HAD JURISDICTION TO HEAR COMSLEEP'S APPLICATION AND ITS APPROVAL OF THE APPLICATION WAS VALID.
POINT II
COMSLEEP MET THE REQUIREMENTS OF THE 70/30 ORDINANCE AND ITS CONCEPT PLAN AND EXPERT TESTIMONY PROVIDED SUFFICIENT EVIDENCE TO SATISFY THE REQUIREMENTS OF THE 70/30 ORDINANCE.
POINT III
THE PARKING GARAGE DEPICTED ON THE CONCEPT PLAN IS A PERMITTED USE PROPERLY INCLUDED IN THE 70/30 ORDINANCE COMPLIANCE CONCEPT PLAN.
POINT IV
THE PLANNING BOARD'S DECISION WAS NOT ARBITRARY, CAPRICIOUS OR UNREASONABLE, BUT WAS SUPPORTED BY REASONED EVIDENCE.
POINT V
THE 70/30 ORDINANCE REQUIREMENTS WERE SATISFIED IN THE ORIGINAL APPROVAL; THEREFORE, COMSLEEP WAS NOT REQUIRED TO PRESENT EVIDENCE REGARDING THE 70/30 ORDINANCE FOR ITS APPLICATION.
POINT VI
THE AMENDED PRELIMINARY AND FINAL SITE PLAN OF 2006 ESTABLISHED THE DEVELOPMENT RIGHTS OF THE COMMERCIAL PARCEL AND, THEREFORE, COMSLEEP WAS NOT REQUIRED TO PRESENT EVIDENCE REGARDING THE 70/30 ORDINANCE FOR ITS APPLICATION.
Points I through VI were originally Points A through F in Comsleep's appellate brief.
In our review of a trial court decision related to a municipal action, we are bound by the same standard as was the trial court. CBS Outdoor v. Lebanon Plan. Bd., 414 N.J. Super. 563, 577 (App. Div. 2010). Thus, we will give substantial deference to findings of fact and will overturn discretionary rulings only if arbitrary and capricious. See also Friends of Peapack-Gladstone v. Borough of Peapack-Gladstone Land Use Bd., 407 N.J. Super. 404, 424 (App. Div. 2009) (finding no reason to disturb the trial court's finding "particularly given the judiciary's limited standard of review of local land use decisions").
Moreover, we will not disturb the factual findings of a trial judge serving as fact finder, unless we are so convinced that the trial court's findings are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We are not, however, obliged to show deference to the lower tribunal's interpretation of law and the legal consequences that flow from established facts. Manalapan Realty v. Twp. Comm., 140 N.J. 366, 378 (1995).
Whether the Board had jurisdiction to hear the application was raised multiple times during the hearings and turns on whether Comsleep needed a "d" variance for its application to proceed. If Comsleep needed a "d" variance, the Application would have required action by the Zoning Board of Adjustment. During the September 8, 2011 meeting, the following colloquy was exchanged.
[BOARD MEMBER] HARVEY: Valerie [board attorney], do we have to take action on the jurisdiction issue in some kind of formal fashion?
[BOARD ATTORNEY] KIMSON: It's been raised. It's an issue that's been raised. I think the Board should address it.
The Board, if you recall, at the very first meeting of the application, the applicant put on a conceptual plan to
address this 70, 30 split. We did that at the very beginning to make sure that the Board did have jurisdiction. At that time, the Board found the conceptual plan addressed the jurisdictional issue. The Board was satisfied at that time that the applicant could meet the requirements of the ordinance.
Mr. Harvey then made a motion that after hearing the evidence, the Board believed it had jurisdiction to hear the application. The motion passed unanimously.
The trial court found "[t]he Board is required to retain jurisdiction unless and until the applicant abandons its planned development approval, which it has not." Whether the Board had jurisdiction to hear the application is a question of law and will be reviewed de novo. See Manalapan Realty, supra, 140 N.J. at 378.
The confusion both at the Board hearings and at trial appears rooted in the overall percentage of warehousing usage that is allowed by the 70/30 Ordinance. A maximum of 70% of the total usage of the completed planned development may be used as warehousing space. The nature of a planned development is that it is completed in stages, over a number of years. N.J.S.A. 40:55D-6. The first phase of this planned development, which was built, was all warehousing space. That development phase maxed out the total warehousing space that could ever be built on this site. As it currently stands, 100% of the total space that is actually developed is warehousing usage. However, as the remainder of the site is developed, the percentage of the total planned development devoted to warehousing will be reduced. It is at the conclusion of the development of the entire site that the percentage of warehousing space cannot be greater than 70%. Comsleep's Concept Plan demonstrated that as long as future application did not seek to add warehousing space, that requirement will be met.
Comsleep's application sought amended preliminary and final site plan approval to build a hotel conference center and daycare facility, both of which are permitted uses in the zone. Comsleep did not propose to add any additional warehousing space. The original approvals were in 1998, and that application satisfied the 70/30 requirement of § 150-24(C)(3)(k). The current application did not disturb the 70/30 requirement because it was not seeking to add any additional warehousing usage; therefore, a "d" variance was not required. As such, and by virtue of N.J.S.A. 40:55D-45.1, jurisdiction was properly vested in the Board.
In Point II, Comsleep contends it met the requirements of the 70/30 Ordinance, and its Concept Plan and expert testimony provided sufficient evidence to satisfy the requirements of the 70/30 Ordinance. Riya contended the Board erred in accepting Comsleep's proffer of a Concept Plan showing hypothetical future phases for the site to satisfy the requirements of the 70/30 Ordinance.
This is directly related to the jurisdictional objection that Comsleep failed to meet the distribution requirement of Ordinance Section 150-24(C)(3)(k), and that the application required a "d" variance from the Zoning Board of Adjustment. Having concluded the Board had jurisdiction, we reject this contention.
The 70/30 Ordinance requirement was satisfied in the original approvals, and because Comsleep's application did not affect that proportional usage, it was not necessary to revisit that issue. Nonetheless, Comsleep presented a Concept Plan to address the Board's concern whether there would be enough land to meet the 70/30 requirement once the entire planned development was completed. Ordinarily, a board, at the request of the developer, will grant an informal review of a Concept Plan for a development for which the developer intends to prepare and submit an application for development. N.J.S.A. 40:55D-10.1.
Richard S. Goldman, Comsleep's attorney, stated at the May 5, 2011 hearing, that Ed Caballero, the project engineer, put together a Concept Plan to show that after "using some of this vacant land for the hotel and the Montessori school . . . we can still meet that 30 percent requirement of non-warehouse development." Mr. Caballero testified that based on the square footage, it would "make the warehouse component . . . of the park 69.94 percent." The purpose of the Concept Plan was to demonstrate that the current application did not disturb the 70/30 requirement.
Riya argues that Comsleep did not prepare a fully engineered plan for full build-out of the site. However, Comsleep was not seeking approval for a full build-out of the site, but only approval for the hotel and daycare facility. The Concept Plan was meant to demonstrate to the Board that this application would not preclude meeting the ultimate requirement of the 70/30 Ordinance. In the resolution, the Board found the "Conceptual Plan . . . for the full build[-]out of the planned industrial park which would address the 30% gross floor area requirement is acceptable to address the Ordinance requirement for the pending application."
The Board was satisfied Comsleep proved compliance with the 70/30 requirement, and the Board agreed the Concept Plan was sufficient to demonstrate that the 70/30 requirement could be met. We conclude the Board's determination was neither arbitrary, capricious nor unreasonable.
The remaining arguments advanced are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(1)(E). We offer these brief comments.
Comsleep's current application did not seek to add a parking garage. The parking garage was part of a non-binding Concept Plan that depicted potential options for full build-out of the site at some time in the future. Therefore, whether a parking garage is a permitted use or an accessory use is premature as it relates to this application. Furthermore, if at some point in the future Comsleep seeks to build a parking garage, the Board is not bound by the current finding in this resolution.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION