Opinion
DOCKET NO. A-3126-14T4
06-29-2016
VILLAGE SUPERMARKET, INC., Plaintiff-Appellant, v. MIDDLE TOWNSHIP PLANNING BOARD and WAL-MART REAL ESTATE BUSINESS TRUST, Defendants-Respondents, and GRANDE PROPERTIES DEVELOPMENT, LLC, Defendants.
R.S. Gasiorowski argued the cause for appellant (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, on the briefs). Stephen R. Nehmad argued the cause for respondent Wal-Mart Real Estate Business Trust (Nehmad, Perillo & Davis, P.C., attorneys; Mr. Nehmad and Michael R. Peacock, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Higbee. On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-306-14. R.S. Gasiorowski argued the cause for appellant (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, on the briefs). Stephen R. Nehmad argued the cause for respondent Wal-Mart Real Estate Business Trust (Nehmad, Perillo & Davis, P.C., attorneys; Mr. Nehmad and Michael R. Peacock, on the brief). PER CURIAM
Village Supermarket, Inc. (Village) appeals from a February 5, 2015 order rejecting its challenges to the Middle Township Planning Board's (the Board) grant of Wal-Mart Real Estate Business Trust's (Wal-Mart) application for preliminary and final major site plan approval, and finding that Wal-Mart's application was properly noticed under the Municipal Land Use Law (MLUL). We affirm.
Wal-Mart applied to the Board for an expansion of its store to sell an expanded line of products, specifically grocery products, creating what is commonly known as a "Wal-Mart Supercenter." Grande Properties Development, L.L.C. (Grande) is the owner of the property known as Lot 15, Block 1464 (Lot 15), and Wal-Mart is the lessee. Delco, L.L.C. and Delco Development, L.L.C. (Delco) own the property next to the Wal-Mart, on which a Lowe's home improvement store is located. The Lowe's property is known as Lot 8, Block 1464 (Lot 8). Village is a competitor of Wal-Mart and owns property located within a mile of Lot 15.
Both Lot 15 and Lot 8 are contained within the Rio Grande Shopping Center. The Wal-Mart and Lowe's are the anchor stores among the various tenants and stores within the Rio Grande Shopping Center, which is advertised as one cohesive unit. The existing Wal-Mart structure is approximately 164,004 square feet with approximately 25,254 square feet of attached retail stores. The shopping center has 836 parking spaces and four access drives.
In January 2005, Wal-Mart, Grande, and Delco entered into a "Tri-Party Agreement" which established a "non-exclusive easement for foot and vehicular ingress, egress, and regress." Between Lots 8 and 15, there is a cross-access driveway that motorists can use to access the other store. In 2013, Wal-Mart applied to the Board to expand the existing structure from 164,004 square feet to 196,380 square feet by re-purposing a part of the existing retail strip and constructing a new portion of the structure. In addition, the application sought variances and design waivers from the Middle Township Subdivision of Land and Site Plan Review Ordinance and Zoning Ordinance.
Wal-Mart published a public notice of the application in January 2014 and mailed it to property owners within 200 feet of the Wal-Mart lot (Lot 15), as required by the MLUL. Wal-Mart did not mail the notice to property owners within 200 feet of the Lowe's lot (Lot 8). The Board held public hearings between February and April 2014, and unanimously adopted a Resolution of Approval of the application on May 22, 2014.
During the hearings, Wal-Mart offered four expert witnesses: David Wisotsky, a licensed professional engineer; Perry Petrillo, a licensed architect; Mark Roth, a licensed professional engineer; and Creigh Rahenkamp, a licensed professional planner. Wal-Mart also presented two fact witnesses: Sherry Thomas, Wal-Mart Market Manager; and Sam Allen, Store Manager. Village offered expert testimony from Alexander Litwornia, a licensed professional engineer; and Andrew Thomas, a licensed professional planner. The Board's engineer and planner, Vincent Orlando, provided testimony, as did the Board's Traffic Engineer and Transportation Planning Consultant, Gregory K. Farnum.
Village filed a complaint in lieu of prerogative writs against the Board, Wal-Mart, and Grande (collectively defendants). The judge conducted a final hearing in December 2014, and thereafter issued the order under review, with an accompanying written decision.
Village raises two primary arguments on appeal. First, Village argues that the application should have been presented as a proposal to expand the Rio Grande Shopping Center as a whole, which would include the Wal-Mart and Lowe's lots, and as a result would require notice to all property owners within 200 feet of both locations. Village contends that because property owners within 200 feet of the Lowe's were not noticed, the public notice requirement was not satisfied and the application thereby invalid. Second, Village argues that the parking variance and deficient buffer variances were for the personal benefit of Wal-Mart, and that the Board's decision to grant the variances was arbitrary.
In "reviewing a trial court's decision regarding the validity of a local board's determination," this court is "bound by the same standards as was the trial court." Jacoby v. Zoning Bd. of Adjustment, 442 N.J. Super. 450, 462 (App. Div. 2015) (citation omitted). We defer to the factual findings of the local board and will not disturb its findings unless they are "arbitrary, capricious, or unreasonable." Ibid. We review a local board's legal determinations de novo. Ibid.
I.
First, Village contends Wal-Mart's application should have included Lot 8, as the two lots are part of one integrated shopping center with an existing, connecting driveway between the two; and, as a result, the public notice should have included property owners within 200 feet of both Lot 8 and Lot 15, essentially all owners within a 200 foot radius of the shopping center.
The issue of adequacy of notice is a question of law subject to this court's de novo review. Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment, 397 N.J. Super. 335, 350 (App. Div. 2008) (stating that "[a] board's decision regarding a question of law, such as whether it has jurisdiction over a matter, is subject to de novo review by the courts and thus is afforded no deference" (citation omitted)).
The MLUL sets forth the notice requirements for applications for development, it states the notice
shall state the date, time and place of the hearing, the nature of the matters to be considered and, in the case of notices pursuant to subsection 7.1 of this act, an identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the municipal tax assessor's office, and the location and times at which any maps and documents for which approval is sought are available pursuant to subsection 6b.The MLUL defines "development" as
[N.J.S.A. 40:55D-11 (emphasis added).]
the division of a parcel of land into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation or enlargement of any building or other structure, or of any mining excavation or landfill, and any use or change in the use of any building or other structure, or land or extension of use of land, for which permission may be required pursuant to P.L.1975, c.291 (C.40:55D-1 et seq.).Finally, N.J.S.A. 40:55D-12(a) provides that "[p]ublic notice shall be given by publication in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality." Moreover, a
[N.J.S.A. 40:55D-4.]
notice of a hearing requiring public notice pursuant to subsection a. of this section shall be given to the owners of all real property as shown on the current tax duplicates, located in the State and within 200 feet in all directions of the property which is the subject of such hearing.
[N. J.S.A. 40:55D-12(b).]
"We have recognized the importance of the public notice requirements of the [MLUL] and the fact that such notice is jurisdictional." Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 237 (App. Div. 1996). The failure to provide notice "is fatal to [a board's] approval." Id. at 236; see also Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adjustment, 154 N.J. 62, 79 (1998) ("[T]he giving of statutory notice of hearing is a jurisdictional requirement, and unless notice is given as required by statute the board lacks power to hear or consider an application even if the subject matter is within its statutory power." (citation omitted)). The purpose of notifying the public
is to ensure that members of the general public who may be affected by the nature and character of the proposed development are fairly apprised thereof so that they may make an informed determination as to whether they should participate in the hearing or, at the least, look more closely at the plans and other documents on file.
[Lacey Twp. Planning Bd., supra, 295 N.J. Super. at 237-38.]"[T]he critical element of such notice has consistently been found to be an accurate description of what the property will be used for under the application." Id. at 238.
Here, on January 1, 2014, Wal-Mart published a notice of public hearing in the official newspaper of Middle Township. Wal-Mart also provided notice to all property owners within 200 feet of Lot 15. Village does not claim any deficiencies in the notice provided by Wal-Mart except that it should have described the subject property as both Lot 15 and Lot 8.
Village notes that the shopping center is interconnected, that the Lowe's section was developed in 2003, and the Wal-Mart section developed between 2004 and 2006, and that both sections were developed by the same owner, Delco. Village notes that Delco conveyed title to Lot 15 to Grande, which Village contends is a "related entity" that "operates with the same principals and from the same office." The two plots are joined by the common road, which Village contends requires that both lots be part of the application for development.
Applying the plain language of the MLUL, we conclude that Lot 8 was not a part of the "development." Therefore, Lot 8 did not have to be part of the application for development and Wal- Mart was not obligated to give notice to all property owners within 200 feet of Lot 8. Testimony from Wisotsky, Wal-Mart's expert witness, established that the existing connection between the two properties was not going to be modified. Moreover, on cross-examination, Village's expert, Andrew Thomas, confirmed that "the reciprocal access driveway between [Wal-Mart] and the Lowe's [Lot 8] site is not being modified in any way by this development application." The driveway would not be "widened or expanded or constricted," but rather was "proposed to stay exactly" as it was. Mr. Thomas agreed that "all of the development . . . taking place in conjunction with [the] application is . . . entirely occurring on [Wal-Mart's] site." As a condition of approval of Wal-Mart's application, the Board required it to
provide sidewalk or striped pavement in lieu thereof, the exact substance and location of which will be determined in the reasonable discretion of the Board Engineer/Planner, leading from the existing Wal-Mart garden center to the property line adjacent to the existing cross-access driveway that the [Wal-Mart] shares with the adjacent Lowe[']s[] shopping center property.Thus, contrary to Village's assertion, there is no construction or work being performed on Lot 8. The testimony and the Board's Resolution make clear that all work will be confined to Lot 15.
Village has failed to provide any persuasive authority suggesting that an existing cross-access driveway, which is not the subject of the development, requires that the adjoining property be part of the application. The purpose for providing notice to the public and providing a proper description of the property "is to ensure that members of the general public . . . affected by the nature and character of the proposed development are fairly apprised thereof [and] may make an informed determination as to whether they should participate." Lacey Twp. Planning Bd., supra, 295 N.J. Super. at 237 (emphasis added). Village relies on various cases, but the key distinguishing factor in all of them is that they involved new development. See Angel v. Bd. of Adjustment, 109 N.J. Super. 194 (App. Div. 1970) (addressing whether an owner of a non-conforming lot could construct an access driveway on two newly purchased lots); Wolf v. Zoning Bd. of Adjustment, 79 N.J. Super. 546 (App. Div. 1963) (involving a restaurant owner's application to pave an otherwise unpaved, residentially-zoned tract of land, which we concluded created a non-conforming accessory use); Mountain Hill, L.L.C. v. Zoning Bd. of Adjustment, 403 N.J. Super. 210 (App. Div. 2008) (involving construction of internal driveways across multiple lots), certif. denied, 197 N.J. 475 (2009); Nuckel v. Borough of Little Ferry Planning Bd., 208 N.J. 95 (2011) (involving construction of a driveway on an adjacent lot with an existing principal use).
There is no dispute that if Wal-Mart were constructing a new road on the Lowe's lot, notice would have to include Lot 8, which is intuitive as it is a new development that would change the existing parcel. It is undisputed the cross-access drive was constructed in 2005 as a result of the Tri-Party Agreement, that the two lots in question were developed at different times, and that they have related but not identical owners. While the two lots are integrated into one shopping center, they were developed separately. There are no changes or new developments as to the common driveway, and therefore no new "development" for the public to comment on.
Village also fails to provide authority for its argument that a lot which is not the subject of the development must be included in the application because it is part of a shopping center, or that an overlap in management between two separate owners requires a lot undergoing no development to be part of the application. Instead, the MLUL states that the applicant must only provide notice regarding the property "proposed for development." N.J.S.A. 40:55D-11. "Development" is defined, in pertinent part, as "the construction, reconstruction, conversion, structural alteration, relocation or enlargement of any building or other structure." N.J.S.A. 40:55D-4. Here, there is no new "development" taking place on Lot 8, and therefore it need not be noticed or included in the application.
We conclude that Village's intensification argument, namely that the construction and expansion of the Wal-Mart will lead to an increased volume of people traveling over the cross-access driveway and an intensification of all access points, including the access points on Lot 8, is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). Not only has Village failed to offer any legal authority supporting the proposition that an alleged intensification of traffic on the Lowe's site requires it be included in the application, but the only testimony at the hearing supporting a proposed increase in traffic volume came from Litwornia, Village's expert, whom the Board found not to be credible. We defer to the Board's conclusion that his on-site traffic study revealed that only ten to fifteen cars traversed the driveway per hour, and that Litwornia "did not prepare any written traffic impact analysis or report to substantiate his opinions." The Board concluded that after
giving due weight to the opinions proffered by Mr. Litwornia and in light of the testimony and "hard" traffic and parking data for the Property provided by [Wal-
Mart's] witness Mr. Roth as well as the written reports provided by the Board's own engineer/planner and traffic engineer, Mr. Orlando and Mr. Farnum, discounted Mr. Litwornia's opinions regarding the proposed traffic, parking and general site engineering conditions for [Wal-Mart's] proposed expansion. Mr. Litwornia did not review the traffic impact study submitted by [Wal-Mart] nor did he review the traffic and parking analysis prepared by the Board's disinterested consultant, Mr. Farnum.
We conclude the Board had authority to rule on the application, and therefore that the judge did not err in rejecting Village's claim.
II.
Village's second argument is that the parking variance and deficient buffer variances granted were solely for Wal-Mart's benefit and that the Board's grant of the variances was arbitrary and untethered from the requirements of the MLUL. Village contends that although a conforming building can be constructed on the site, Wal-Mart is overbuilding on the site.
To the extent Village challenges the buffer and setback variances, the Resolution makes clear that the current plan will not affect the current buffer and setback. See Cortesini v. Hamilton Twp. Planning Bd., 417 N.J. Super. 210, 216 (App. Div. 2010) (denying a challenge where the nonconformity was "preexisting" and would not be affected by the proposed renovations), certif. denied, 207 N.J. 35 (2011).
Further, Village challenges the parking variance, alleging that Wal-Mart proffered inadequate proofs to support a grant of the variance. "Variance questions are entrusted to the sound discretion of the municipal zoning board hearing the application." Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 198 (App. Div. 2001) (citation omitted).
Accordingly, courts reviewing a municipal board's action on zoning and planning matters, such as variance applications, are limited to determining whether the board's decision was arbitrary, unreasonable, or capricious. Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296 (1965); Med. Realty Assocs. v. Bd. of Adjustment of Summit, 228 N.J. Super. 226, 233 (App. Div. 1988). A reviewing court must determine whether the board followed the statutory guidelines and properly exercised its discretion. Burbridge v. Governing Body of Mine Hill, 117 N.J. 376, 385 (1990).
[Id. at 198-99.]
N.J.S.A. 40:55D-70(c)(2) allows a board to grant a variance "where in an application or appeal relating to a specific piece of property the purposes of this act . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment."
To establish a (c)(2) variance, the applicant must show that the purposes of the MLUL would be advanced, the variance can be
granted without substantial detriment to the public good, the benefits of the variance will outweigh any detriment, and that the variance will not substantially impair the intent and purpose of the zoning plan and ordinance. It is the applicant's burden to produce this evidence.
[Jacoby, supra, 442 N.J. Super. at 471 (citations omitted).]
Here, the Board's Resolution sets forth an adequate basis for granting the parking variance. Wal-Mart proposed to add an additional twenty-eight parking spaces to the lot, bringing the total number of spots to 864, which is closer to the required 1,004 spaces. The Board concluded generally that the variance relief requested would further the purposes of the MLUL and enhance the general welfare by providing "an overall refurbishment and upgrade of the site including the upgrades to the existing storm water management system," repaving of the parking field, twenty-eight new parking spaces, and better ingress and egress to and from the property. Specifically as to the parking variance, the Board incorporated the testimony of Roth and Rahenkamp, and the findings of Farnum, and concluded that "this variance can be granted without any detrimental impact upon the public or the zone plan or Zoning Ordinance." The Board's determination is amply supported by the record, which contained Wisotsky's testimony as to improved greenery at the site; Roth's testimony regarding the adequacy of the parking; and Rahenkamp's testimony as to how the plan conforms with the Master Plan and how the parking variance is an appropriate (c)(2) variance.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION