DAVID O. WITHEROW v. BURLINGTON TOWNSHIP PLANNING BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2488-08T32488-08T3

DAVID O. WITHEROW,

Plaintiff-Appellant,

v.

BURLINGTON TOWNSHIP

PLANNING BOARD and

MIDMALL RESOURCES

LIMITED PARTNERSHIP,

Defendants-Respondents.

_______________________________________________

 

Argued November 30, 2009 - Decided

Before Judges Rodr guez, Reisner and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-276-08.

Jeffrey M. Brennan argued the cause for appellant (Baron, Riefberg & Brennan, attorneys; Jeffrey I. Baron, of counsel; Mr. Brennan, on the brief).

Denis C. Germano argued the cause for respondent Burlington Township Planning Board (Hulse & Germano, attorneys; David M. Serlin, on the brief; Mr. Germano on the supplemental brief).

Meryl A. G. Gonchar argued the cause for respondent Midmall Resources Limited Partnership (Greenbaum, Rowe, Smith and Davis, LLP, attorneys; Ms. Gonchar, of counsel and on the brief and supplemental brief; Katie M. Holden, on the brief).

PER CURIAM

David O. Witherow, an objector residing in Burlington Township, challenges the decision of the Law Division upholding the Burlington Township Planning Board's (Board) grant of an application by Midmall Resources Limited Partnership (Midmall). Midmall sought approval for an expansion of an existing Wal-Mart store into a Wal-Mart Super Center. Midmall applied for: (a) preliminary and final site plan application for an approximately 66,172 square feet (SF) net building expansion to the existing Wal-Mart building; (b) as well as a "Bulk" or "C" variance, pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-70c(2), to permit impervious coverage of approximately 54.9 percent where 50 percent is permitted; (c) a design exception from the number and size of parking spaces; and (d) a design exception from the number and size of loading spaces.

The following testimony was presented to the Board. Christine Cofone, a licensed professional planner, testified to the one bulk variance required pursuant to the application. In her opinion, Midmall "qualifie[d] for Flexible C Variance." Such relief is appropriate when the applicant has a hardship. Further, the Board is still well "within its right to grant the variance relief, if the applicant can demonstrate both that[:] there is at least one purpose that the [MLUL] advanced by the grant of the application . . . the negative criteria is satisfied . . . and the impact on the surrounding properties" is not a substantial detriment.

As to the positive criteria, Cofone opined that Criteria A, G and J of the MLUL were satisfied by Midmall's application. See N.J.S.A. 40:55D-2. Cofone found that "the potential of the general welfare is advanced by this application in light of some of the master plan goals that [she] reviewed." Moreover, Cofone believed Criteria G would have a positive impact on Criteria J. Cofone testified that:

[w]hen we look at the fact that this is already a developed site and the applicant is looking to sort of intensify and concentrate those uses here on the existing developed site and take advantage of that existing infrastructure, I think you can absolutely find that [it] would be completely consistent with Smart Growth Principles as well as the feel of and planning development and redevelopment into the area that the applicant is in.

I think it is very important why you are considering this application, the only variance relief that is required by this application is for the maximum impervious coverage. So there is a presumption of validity that all of the other aspects of the application are consistent with the zone plan.

With regard to the negative criteria, Cofone testified:

[t]he first part I have to address in the negative criteria is the impact on the zone plan. The zone allows for 50 percent. Again, we are at 54.9. I believe that clearly this application, although not conforming, takes the site much closer in conformance with the road plan.

The next part of that is the impact on the surrounding properties and the public good. Again, as I said in my opening statement, we talked about the testimony, when you evaluate the negative criteria, the Land Use Law doesn't say that the Board must find that there is no detriment resulting. The Board has to find there is no substantial detriment. I can't think of any detriment that results from the minimal excess coverage that is resulting from this application that would impact the surrounding properties.

The uses as proposed are all completely consistent with the zoning plan and the uses that surround it. The coverage is minimal. A variance was previously granted for the coverage on the front portions of the site and the applicant is significantly reducing that. So to that end, and the fact that the uses are substantially consistent, or completely consistent with the zone plan and the surrounding uses, in my opinion there will be no deleterious impact on the surrounding properties or to the public good as a result of this impervious covered area.

Cofone also testified concerning the loss of fifty-seven parking spaces. There was a basis for granting a flexible "C" variance because:

I believe that it would advance certainly preventing degradation of the environment and preventing urban sprawl and also promoting a desirable and visual environment by allowing for additional green space on the site . . . . [W]e are clearly meeting the intent of the ordinance in as far as parking and both landscaping.

[T]he deficiency in parking will have absolutely no impact on any of the surrounding properties in a negative way in my opinion. So clearly the positive criteria and negative criteria would be satisfied if this were in fact a variance.

Board Planner Joseph Augustyn agreed with Cofone's assessment that the granting of the lot coverage variance would not have a significant negative impact. However, Augustyn recommended that further action could be taken to reduce lot coverage by reducing the number of parking spaces because "too many parking spaces" remained.

Grayson Murray, a licensed professional engineer, testified that as a result of miscalculation, the lot coverage was misstated and was actually 56.1 percent as opposed to 54.9 percent. Murray testified that Midmall requested a design exception with regard to twelve-foot-wide loading spaces versus the ordinance requirement of fifteen feet. Twelve feet satisfied the operational need and was also consistent with standard engineering design for loading docks utilizing tractor trailers. Murray further testified in support of the request for 9 and 9.5-foot wide parking spaces, that 9 feet was "still in accordance with general engineering design and is more than adequate for passenger vehicles."

Michael Moonan, a professional engineer, noted that two lots on the project area (Lots 3 and 4) were landlocked and constrained by wetlands. Prior to any additions, there were 1,842 existing parking spaces, which is 5.4 spaces per 1,000 SF of gross floor area. Midmall proposed 1,988 spaces pursuant to the addition, which is 5.3 per 1,000 SF and in satisfaction of the Township's parking ordinance. The Board engineer, Robert Schreibel, recommended only 5 spaces per 1,000 SF, which would total 1,874 spaces.

Moonan also explained that the Wal-Mart trucks "will enter the site via the truck route access point on the southeast portion of the site . . . behind the Acme building, along the southerly property line, and continue north behind the Wal-Mart building, and there will be a total of six loading docks." John Mims, a Wal-Mart market manager, testified regarding Wal-Mart loading facilities. Wal-Mart currently received one to two Wal-Mart tractor-trailer truck deliveries a day. At the new facility, it would increase to two or three a day. The Wal-Mart trucks make deliveries between 10:00 p.m. and 6:00 a.m. Seven to ten panel truck deliveries a day were to be expected from vendors at the new facility. These trucks complete deliveries by 10:00 a.m. With respect to the holiday season, Mims testified that one additional Wal-Mart truck would make a delivery each day and the number of panel truck deliveries would remain the same. No parking spaces would be lost in this process.

The updated plan added another lane entering "westerly into the site along the main access drive . . . just beyond the main intersection." Moonan confirmed that there were currently three loading docks and the updated plans included the addition of three loading docks in response to the grocery area. He further testified that "only six loading docks maximum would be needed, that . . . there will be no tractor trailers queuing, waiting to get into a spot because of the way that Wal-Mart times their deliveries."

Witherow presented Alexander Litwornia, a professional planner and engineer, who was recognized by the Board as an expert planner and traffic engineer. He testified that he saw no benefit in providing an additional supermarket when one already existed in the complex. Litwornia recommended ten-foot parking spaces because people bring carts between the vehicles, "[a]nd if you don't have additional room, the vehicles [get] scraped and scratched up and people don't like it." Further, the plans did not comply with the Americans with Disability Act (ADA), 42 U.S.C.A. 12101 to -12213. There was no waiver from these standards because of the State and federal government mandates.

Litwornia submitted a report, concluding that: (a) the site has inadequate parking due to the amount and size of the spaces, and no parking study was completed to justify the parking variance; (b) trucks presently park and are stored in the fire zone, which will become worse if the density of the development is allowed to increase; and (c) a parking variance was requested but no parking demand study was performed to determine if the amount of expansion could be accommodated.

Schreibel, the Board Engineer, responded to Litwornia's report. He commented:

[t]he intent of our review of an older site such as this is not to "undo" the approvals, variances, and design exceptions granted by the previous Boards, as Mr. Litwornia would suggest.

Rather, the intent of our review of an older site is to first look at the improvements proposed as part of the application, and then look at the entire site from the standpoint of correcting problems that have been a matter of record; or correcting deficiencies that may impact the public health, safety or welfare.

This typically includes correcting traffic circulation problems; drainage problems; upgrading parking facilities to meet current ADA Standards; checking to see that fire zones have been maintained; correcting any problems being caused to neighboring properties; and repairing deteriorated pavement.

With regard to the number of parking spaces, Schreibel found that in light of the Lot Coverage Variance, his office "does not see a problem with the Applicant obtaining a design exception for less than the number of required parking spaces." In addition, "historical observations have shown that the parking lot is substantially underutilized." He also noted that "a parking ratio of 5.0 spaces/1,000 SF of gross floor area was approved as part of the Towne Crossing Shopping Center, which is a very similar, if not exact, type of use." The proposed parking spaces were consistent with what currently existed on the site and thus his office saw no problem with the proposed parking space width. Further, there was no record of any complaints, either from the public, the tenants, or the police department indicating the size of the parking spaces was problematic. Concerning compliance with the ADA requirements, a note was added to Midmall's site plan, requiring that all "accessible facilities" comply with both the ADA or State regulations.

Schreibel and Augustyn continued to recommend that Midmall reduce the number of parking spaces from 1,929 to 1,874 at a ratio of five spaces per 1, 000 SF. That is 112 spaces less than what is required by ordinance and is within the permissible amount in which the Board can reduce under the ordinance. It would allow "additional opportunities for green space." Schreibel testified that it was a 5.5 percent reduction and the Board is permitted to reduce the parking up to 75 percent.

The Board approved the application directing its Solicitor to prepare a resolution granting preliminary approval subject to the following conditions: architectural elements review; review with Schreibel the possibility of reducing the parking stall size for spaces located in remote areas to provide additional opportunities for landscaping; a Synchro analysis submission to Newman; submission of a copy of the easement agreement which provides for access through the Beneficial Bank property; submission to Schreibel a schedule of parking spaces which comply with the ADA regulations. There is no dispute that these conditions were addressed by the applicant.

The Board adopted the resolution, granting preliminary major site plan approval on December 13, 2007. The Board resolved:

[it] will further several salutary purposes of the [MLUL] without any substantial detriment. The development of the Property will promote the general welfare by combining two lots with limited utility with an existing retail center permitting it to expand to further serve the regional market. The proposed improvements to the retail shopping center will cause it to be more aesthetically pleasing and will result in increased landscaping which will ameliorate the existing barren parking lot. The negative impact is limited in scope by the minimal deviation from the lot coverage standard and the absence of any substantial impact on any residential property. Insofar as a variance may be required for reduction in the width of parking stalls, the [Board] adopts the same reasoning.

The deviations from the site plan approval requirements were noted by the Board as being reasonable and literal enforcement would be impracticable. The Board approved design exceptions as follows: Midmall was permitted to reduce the number of parking stalls to 1,929 spaces; vary the width of the designated parking stalls between 9 and 9.5 feet; and provide eight loading bays having a width of 12 feet.

Witherow brought this Action in Lieu of Prerogative Writs, alleging that the Board's grant of a variance and design exceptions was arbitrary and capricious. Judge Michael J. Hogan presided over the trial, rejected these arguments and dismissed the complaint. He upheld the Board's grant of approval to Midmall, in a September 2, 2008 written decision. Witherow moved for reconsideration; Midmall and the Board opposed. The judge denied the motion in another written opinion dated December 3, 2008.

Witherow filed a notice of appeal on January 29, 2009, twenty-two days after the filing deadline set by Rule 2:4-1(a). Midmall moved to dismiss the appeal. Witherow filed a cross-motion seeking an extension of time for appeal. We granted Witherow's motion to file a notice of appeal as within time. Witherow v. Burlington Twp. Planning Bd., No. M-3268-08 (App. Div. March 13, 2009).

Impervious Coverage

On appeal, Witherow argues that the trial judge erred in upholding the Board's grant of a variance permitting excessive impervious coverage. Witherow argues that the "the harms, if any, are [not] substantially outweighed by the benefits." Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 565 (1988). He contends that "[t]he Board should not have granted the variance because Midmall never established (and the record does not otherwise support) that the benefits from the impervious coverage variance 'substantially outweigh' any detriment." We disagree.

Judicial review of a local land use agency decision consists of a determination of whether the agency, when acting upon the requested relief, followed the statutory criteria and exercised its discretion based upon the evidence in the record. Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990). "[P]ublic bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion." Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005); see also Booth v. Bd. of Adjustment of Rockaway Twp., 50 N.J. 302, 306 (1967). Therefore, "[t]he proper scope of judicial review is not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record." Jock, supra, 184 N.J. at 597. Generally, greater deference is given to a denial of a variance than to a grant. Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 208 (App. Div. 1999).

Midmall applied to the Board for a "flexible c" variance to exceed the permitted lot coverage. The Board granted the variance and the trial court affirmed.

According to the MLUL, a "variance" is "permission to depart from the literal requirements of a zoning ordinance." N.J.S.A. 40:55D-7. Moreover, N.J.S.A. 40:55D-70c provides for two major categories of variances. Subsection c(1) is known as the "hardship" variance and c(2) is known as the "flexible c" variance. See Kaufman, supra, 110 N.J. at 560-61.

The c(2) variance was the result of a 1984 amendment to the MLUL and represents a middle ground between the traditional hardship variance pursuant to N.J.S.A. 40:55D-71c(1) and the special reasons or use variance pursuant to N.J.S.A. 40:55D-70d. Kaufmann, supra, 110 N.J. at 560.

The grant of a c(2) variance must be rooted in the purposes of zoning and planning itself and must advance the purposes of the MLUL. Id. at 562; see also Smith v. Fair Haven Zoning Bd. of Adjustment, 335 N.J. Super. 111, 122 (App. Div. 2000). Speaking to the general concept of the c(2) variance, the Court held:

[b]y definition, then, no c(2) variance should be granted when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property. The focus of a c(2) case, then, will be not on the characteristics of the land that, in light of current zoning requirements, create a "hardship" on the owner warranting a relaxation of standards, but on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community.

[Kaufmann, supra, 110 N.J. at 563.]

With regard to the negative criteria, a variance requires the applicant to establish: (1) that the variance can be granted without substantial detriment to the public good; and (2) that the variance will not substantially impair the intent and the purpose of the zone plan and zoning ordinance. N.J.S.A. 40:55D-70. The variance will be upheld if it is supported by adequate evidence in the record and the Board, without arbitrariness, finds that "the harms, if any, are substantially outweighed by the benefits." Kaufmann, supra, 110 N.J. at 565. The fact that a planner fails to engage in the weighing process is not fatal to the decision, as long as the record reflects that "the benefits envisaged from the grant of the variance were found substantially to outweigh any detriment to the surrounding properties or to the zoning plan." Id. at 565-66.

In determining whether it may grant a variance pursuant to c(2), the Board has the power to grant approval subject to conditions it finds necessary to ensure that the applicant meets the required standards. Cox, New Jersey Zoning and Land Use Administration, comment 6-3.3 at p. 164 (2009). Moreover, it is the applicant's responsibility to provide the Board with the evidence necessary to make its determination. See Trinity Baptist Church v. Louis Scott Holding Co., 219 N.J. Super. 490, 499-500 (App. Div. 1987).

It should, however, be noted that the c(2) variance provisions were not designed to permit a board to rewrite ordinances by "undertak[ing] piecemeal, project-by-project rezoning of substantial tracts." Chesterbrooke Ltd. P'ship v. Planning Bd. of Chester, 237 N.J. Super. 118, 131-32 (App. Div.), certif. denied, 118 N.J. 234 (1989). Rather, there is a strong legislative policy of "encouraging municipalities to make zoning decisions by ordinance rather than by variance." Id. at 127.

Here, Midmall satisfied the positive criteria by providing the testimony of Cofone who testified that the positive criteria were satisfied because the purposes of the MLUL were advanced by the application. Specifically, she testified that Midmall's application advanced the potential of the general welfare by keeping a mix with retail, office, industrial use and heavy industrial uses. See N.J.S.A. 40:55D-2a. This mix worked to achieved economic strength and stability in the municipal tax base.

Cofone also testified that the application would "provide sufficient space in appropriate location for a variety of agricultural, residential and recreational, commercial, industrial uses and open space, both public and private, according to their respective environmental requirements in order to meet the needs of all New Jersey citizens." See N.J.S.A. 40:55D-2g. Cofone found that because half of the housing stock in the Township was built after 1990, the application was an excellent means of meeting the needs of those citizens.

Finally, Cofone testified that Midmall's application would prevent urban sprawl and degradation of environment due to improper use of the land. See N.J.S.A. 40:55D-2j. By including Lots 3 and 4 in the Wal-Mart site, Midmall removed any development potential of said lots. The furtherance of Smart Growth was also discussed, which has as its focus strengthening and directing future development to existing communities using existing infrastructure. Therefore, as Judge Hogan found, "Cofone was explicit that the grant of the requested variance would further many of the salutary purposes of zoning set forth in [the MLUL]." With regard to the negative criteria, Cofone was equally as clear in her testimony that no detriment would result from the grant of the variance.

Based on Cofone's testimony, along with the other professionals presented by Midmall, "the board could reasonably have reached its decision on the record." Jock, supra, 184 N.J. at 597. Therefore, we conclude that the Board did not abuse its discretion in granting the variance for impervious coverage.

Exception To The Site Plan For Off-Street Parking And Loading Deficiencies

Witherow also argues that the trial judge erred in finding that an exception to the site plan was proper with regard to the off-street parking and loading deficiencies. We disagree.

Pursuant to N.J.S.A. 40:55D-51b, a planning board, when acting on a site plan application:

[s]hall 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.

[Ibid. (emphasis added).]

The "article" referred to in the section above is Article 6 of the MLUL, regulating "Subdivision and Site Plan Review and Approval." See Wawa Food Market v. Planning Bd. of Ship Bottom, 227 N.J. Super. 29, 34 (App. Div.), certif. denied, 114 N.J. 299 (1988). Consequently, by the express terms of N.J.S.A. 40:55D-51b, the Board may grant "exceptions" only from the standards set forth in the subdivision and site plan ordinances. Wawa, supra, 227 N.J. Super. at 34. The statute does not provide for any "exceptions" from the zoning ordinance provisions. Ibid. Pursuant to Article 6, a municipality requiring site plan review and approval must include in its site plan ordinance "standards and requirements relating to" several factors, including "[s]afe and efficient vehicular and pedestrian circulation, parking and loading." N.J.S.A. 40:55D-41b.

The Township's site plan ordinance establishing parking and loading requirements is set forth in section 19:12-20 of the Burlington Township Ordinance. Section 19:12-20.2E requires off-street parking spaces to be 10-feet wide and a minimum of 20-feet in length. Shopping centers of 50 acres or more require 5.3 parking spaces per each 1,000 SF of gross floor. 19:12-20.2M(1)(v). It is required that each loading space be at least 15-feet by 40-feet, one loading space for the first 7,000 SF of gross floor area and one additional space for each additional 10,000 SF of gross floor area thereafter. 19:12-20.2M(2)(b).

The governing body may further choose to include certain standards of performance in its zoning ordinance, as opposed to its site plan ordinance. Specifically, N.J.S.A. 40:55D-65d provides that a zoning ordinance may:

[e]stablish, for particular uses or classes of uses, reasonable standards of performance and standards for the provision of adequate physical improvements including, but not limited to, off-street parking and loading areas . . . .

[Ibid.]

The governing body has exclusive local power over the regulation of land use, subject to the strictures imposed by enabling legislation. N.J. Const. art. IV, 6, 2; N.J.S.A. 40:55D-62. See PRB Enters., Inc. v. South Brunswick Planning Bd., 105 N.J. 1, 7 (1987). Once the governing body exercises its zoning power and places standards within its zoning ordinance, the legislative action enjoys a "strong presumption in favor of validity which continues unless overcome by clear showing that it is arbitrary and unreasonable." Wawa, supra, 227 N.J. Super. at 34.

Relief from the standards contained in a zoning ordinance may be sought only through a variance, which is the only process by which one may seek "permission to depart from the literal requirements of a zoning ordinance." N.J.S.A. 40:55D-70. Thus, as mentioned, N.J.S.A. 40:55D-51b does not provide for any "exceptions" from zoning ordinance provisions. Wawa, supra, 227 N.J. Super. at 34.

Zoning standards setting forth permitted uses within each district, and the bulk requirements applicable to each category of use, are set forth here in section 19:7 of the Ordinance, entitled "Zoning Districts." This section contains no reference to the number or dimensions of parking or loading spaces for any particular use or class of use. Therefore, an exception/waiver is applicable here as the governing body did not choose to include such standards within the zoning ordinance.

Moreover, the record establishes that the existing parking spaces are comprised of a mix of 9 and 9.5 foot wide spaces. Furthermore, Cofone testified with regard to the loss in parking spaces that "it would advance certainly preventing degradation of the environment and preventing urban sprawl and also promoting a desirable and visual environment by allowing for additional green space on the site . . . . [W]e are clearly meeting the intent of the ordinance in as far as parking and both landscaping." Cofone further noted that "the deficiency in parking will have absolutely no impact on any of the surrounding properties in a negative way in my opinion."

Likewise, Murray testified that 12 feet was more than adequate to satisfy the loading operational needs and was also consistent with standard engineering design for loading docks utilizing tractor trailers. He opined that 9 feet was "still in accordance with general engineering design and is more than adequate for passenger vehicles." Therefore, we conclude that the Board did not abuse its discretion in granting the design exceptions.

Defective Notice Of Hearing

Witherow also contends that the judge erred in finding that Midmall's notice of the land use hearing was effective. Witherow argues that Midmall's notice failed to alert members of the public to the fact that Midmall essentially sought to build a large grocery store inside of the existing building. Witherow argues that "the addition of a grocery component presents an entirely different set of considerations than those considerations attendant to a mere expansion to the existing 'dry goods' operation." We disagree.

Proper notice is a jurisdictional prerequisite to a Board's consideration of a development application. N.J.S.A. 40:55D-12a; see also Perlmart of Lacey, Inc. v. Lacey Twp. Planning Board, 295 N.J. Super. 234, 236-37 (App. Div. 1996). Defective notice renders all subsequent action by the Board null and void. See Virginia Constr. Corp. v. Fairman, 39 N.J. 61, 70 (1962). Thus, if Midmall failed to provide proper notice, the Board would have been without jurisdiction to consider the Midmall's application.

The contents of such notice is governed by N.J.S.A. 40:55D-11, which states that the notice:

shall state the date, time and place of the hearing, the nature of the matters to be considered and . . . an identification of the property proposed for development by street address . . . and the location and times at which any maps and documents for which approval is sought are available[.]

[Ibid.]

Furthermore, the notice should be drafted in a manner in which an ordinary layman would understand, and not crafted for someone familiar with the technicalities of zoning. Perlmart, supra, 295 N.J. Super. at 238.

Here, the notice provided was in plain language and described the nature of the application as an expansion of "the existing Wal-Mart building." We concur with Judge Hogan that Midmall provided the public with notice that a Wal-Mart store was being expanded.

"Open" Items In Site Plan

Witherow argues that the trial judge erred by approving a site plan having too many open items. Specifically, Witherow argues that the grant of the preliminary site plan approval cannot be conditioned upon subsequent compliance with the parking requirements of ADA. We disagree.

The Board's Resolution recognized that "ADA compliance is not mandated as being a requirement which must be imposed prior to the granting of preliminary approval, nor does a land use agency have the authority to waive a mandatory requirement imposed by a federal or State law." Therefore, the Board granted preliminary approval conditioned upon ADA compliance. The Board's discretion is based on N.J.S.A. 40:55D-49a, which expressly permits planning boards to impose general terms, conditions, and requirements particular to site plan approval as related to public health and safety. W.L. Goodfellows & Co. of Turnersville v. Washington Twp. Planning Bd., 345 N.J. Super. 109, 116 (App. Div. 2001).

Here, there was sufficient information from which the Board could make a decision regarding the feasibility of the ADA requirements. The Board weighed the conflicting expert testimony and decided to accept Midmall's representations that the ADA compliance was feasible and that it was a condition that could not be excused. This determination was within the Board's discretion as feasibility was established. Moreover, the intent and purpose of the MLUL is, as set out in N.J.S.A. 40:55D-2, "is intended to encourage municipal action to guide the appropriate use or development of all lands in this State in a manner which will promote the public health, safety, morals and general welfare" for more efficient use of land. Levin v. Twp. of Parsippany-Troy Hills, 82 N.J. 174, 179 (1980).

Supplemental Briefs

We granted the Board's motion to file supplemental briefs. Witherow v. Burlington Twp. Planning Bd., No.5559-09 (App. Div. June 9, 2010). The supplemental brief essentially brings to our attention a recent, unpublished decision of another Part of this court. We generally do not rely on unpublished decisions. Here, we note that the holding of the decision is consistent with our published decision in Wawa, supra, 227 N.J. Super. at 35.

Affirmed for the reasons stated in this opinion and the findings and analysis given by Judge Hogan in his September 2, 2008 and December 3, 2008 written decisions.

 

N.J.S.A. 40:55D-1 to -163.

(continued)

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