VILLAGE SUPERMARKETS, INC v. PLANNING BOARD OF THE TOWNSHIP OF UNION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6340-08T26340-08T2

VILLAGE SUPERMARKETS, INC.,

Plaintiff-Appellant,

v.

PLANNING BOARD OF THE TOWNSHIP

OF UNION, NEW JERSEY and ALDI,

INC. (PENNSYLVANIA),

Defendants-Respondents.

_______________________________

 

Argued March 9, 2010 - Decided

Before Judges Wefing, Grall and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3398-08.

Lance N. Olitt argued the cause for appellant (Mandelbaum Salsburg, PC, attorneys; Mr. Olitt, on the brief).

Robert J. Pansulla argued the cause for respondent, Planning Board of the Township of Union (Gaccione, Pomaco & Malanga, attorneys; Mr. Pansulla, on the brief).

Howard D. Geneslaw argued the cause for respondent, Aldi Inc. (Pennsylvania) (Gibbons P.C., attorneys; Mr. Geneslaw and Jennifer P. Smith, on the brief).

PER CURIAM

Plaintiff Village Supermarkets, Inc. (Village), appeals from the July 15, 2009 order of the Law Division entering judgment in favor of defendants, Planning Board of the Township of Union (Board) and Aldi, Inc. (Pennsylvania) (Aldi), upholding the decision of the Board granting certain variance relief to Aldi for the construction of a supermarket in Union. Village, a corporation headquartered in Union, operates a ShopRite supermarket located approximately one mile from the property on which Aldi proposes to construct its supermarket. Aldi's property is 1.662 acres in dimension and is located in Union's "BB Business Retail District[,]" which is zoned for commercial uses including food stores; a 7500-square-foot structure is currently located on the property.

On November 1, 2007, Aldi filed its application for final site plan approval and variances under N.J.S.A. 40:55D-70(c)(2). Specifically, Aldi sought variances from municipal ordinances that (1) prohibited parking in the front of the lot, (2) required that the building be of colonial design, and (3) required the signage also to be of colonial design.

Aldi presented four witnesses before the Board: (1) James P. Curran, Aldi's Director of Real Estate; (2) Robert P. Switala, a civil engineer; (3) Gary W. Dean, a traffic engineer; and (4) Francis J. Banisch, a licensed professional planner. Village presented one witness, Hal Simoff, a traffic expert.

Curran described the property as "surrounded by deteriorating asphalt, with approximately two entrances directly in and out off of Commerce Avenue." He estimated that once the store was operative, approximately seven to ten deliveries per week would be made in trucks with fifty-three-foot trailers; deliveries would be made "any time from [six] a.m. to [seven] p.m. . . . depend[ing] upon traffic and the operations of the store[,]" and would take approximately one hour to complete.

Switala testified that a variance to allow parking in front of the building, rather than behind, was sought because it was "a pretty common design element to have parking for a retail use in a front yard[,]" as evidenced by the parking at a CVS pharmacy next door. Switala also explained that "[w]ith retail, the intent is most people like to park close to the building if they can, and that, typically, would mean you have parking in the front yard."

Regarding the variance from colonial design, Switala noted that "throughout the Township . . . other retail uses . . . are either per . . . the company prototype, or just not colonial in nature at all." Likewise with respect to the sign variance, Switala pointed out that the CVS pharmacy immediately to the left of the property and the Commerce Bank on its immediate right do not have colonial signage.

Switala also engaged in calculations regarding truck deliveries that led him to conclude there would be sufficient room for the tractor-trailers making deliveries to maneuver in the parking lot and reach the loading dock in the rear of the building, stating that "[i]t is not anything that is going to create a serious hardship for the infrequent amount of time that this is going to happen." Switala "believe[d] the site itself has been designed in a manner that safely moves trucks in and out of the site in what . . . is probably the most efficient manner that [the] site could be laid out." Switala testified that any difficulties the tractor-trailers might have exiting the premises were problems that other businesses in the area also faced.

In response to concerns raised by the Union Township Board of Education concerning deliveries occurring at the start and conclusion of the school day, Aldi agreed that deliveries would not be made between "7:30 a.m. and 9:15 a.m., and between 2:00 p.m. and 4:00 p.m." The Board of Education thereupon withdrew its objections to Aldi's project.

Dean testified that "[i]n terms of general traffic parameters, this store is now actually smaller than the CVS immediately adjacent to the south." Dean further testified that any problems associated with trucks exiting the site onto the street would be marginal. With respect to the ability of delivery trucks to move on and off the premises, Dean stated that "the design as proposed will be more than adequate to meet the needs of the site and for Aldi."

Regarding the variance for allowing parking in front of the store, Dean testified that Aldi's proposed design "mirrors every building along Commerce Avenue. Commerce Bank and CVS, . . . they all have an identical parking arrangement." Furthermore, Dean testified, having parking in the front allows customers to park "closest to the building['s] fa ade so that [they] can walk directly in on a sidewalk and not all of them have to go through an access aisle."

Dean testified that safety issues would arise if parking and loading were both in the rear because "all of the pedestrians in that back area . . . [would] need to negotiate and walk through the loading area . . . ." Dean concluded that the proposed design, with parking in the front and on the side, as evidenced by the arrangement at CVS and Commerce Bank, was "a safer alternative . . . trading off safety versus aesthetics."

Banisch had reviewed Aldi's preliminary and final site plan drawings, as well as the site itself and the Township's master plan. Based upon that review, he opined that what Aldi was requesting was "not inconsistent with what has been proposed and developed through large portions of Union." Banisch noted that much of the area surrounding the subject property has "blighting characteristics . . . that will be relieved by [Aldi's] proposal[,]" and that the proposed store's "improved character that will be brought into the area . . . will be reflective of a modern and contemporary standard of design and construction."

Banisch summarized the character of the surrounding businesses and opined that, based upon a visual comparison of those properties with Aldi's proposal, the Board "will probably be able to conclude that what [Aldi is] requesting will be a more attractive version of what may have happened in some other situations." He pointed out that "a number of features" on the subject property are "effectively blighting influences that [Aldi] will remove as they replace this building with a modern, contemporary building, with landscaping and up-to-date improvements."

Regarding the variance from the colonial design requirement, Banisch opined that Aldi's proposed building design "is harmonious with the existing buildings and particularly the newer construction that has occurred next to it . . . ."

Banisch testified that the variances are appropriate because the proposed store would replace the former "unattractive older structure with outdated site improvements that has been vacant for a number of years, not generating income or revenue, and not providing any service to the community with a modern up-to-date facility . . . that will provide service to the community and . . . become a productive ratable." Specifically, Banisch testified that the project would advance the purposes of the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163 (MLUL), in the following ways: (1) the general welfare would be "advanced by the replacement of [the] blighting influence in the neighborhood with an attractive new building[,] . . . site improvements, and the introduction of landscape plantings"; (2) the "site provides sufficient space in this appropriate location to carry out the proposed activities sufficiently and effectively"; (3) the "proposed site plan and the architectural plans . . . provide for good civic design . . . and . . . will attractively provide for a new building and improved site that will be up to contemporary standards . . . and replace the unsightly conditions on the property"; and (4) "replacing what is there with what is proposed and providing for an efficient use of the property" clearly promotes "the public interest . . . ." Banisch concluded that there would be no substantial detriment because the proposal "does meet the zone requirements except for those departures" which "don't . . . in any way, undermine the ability to be a productive and valuable component under [the] zon[ing] plan."

Village's traffic expert, Simoff, opined that "there w[ould] be a negative impact to the neighborhood from a traffic point of view[,]" and that access to the site by trucks was problematic because "the internal circulation and the constraints of the site don't allow a truck with a [fifty- three-]foot trailer to circumvent or to go into the site, nor be able to get out of the site." Simoff opined that a delivery truck "cannot make the turning movement on[-]site without the loss of parking spaces . . . ." He estimated that truck delivery activity would result in the loss of "about six [parking] spaces."

Dean testified in rebuttal, opining that delivery trucks would, at most, encroach on only one parking spot and any problem for trucks leaving the premises could be remedied by widening the exit onto the street.

At its August 14, 2008 hearing, the Board voted unanimously to approve Aldi's application including the three variances requested; a resolution memorializing that vote was issued on August 28, 2008. The Board made extensive findings of fact which essentially reflected the testimony and opinions proffered by Aldi's four witnesses.

On October 10, 2008, Village filed a complaint in lieu of prerogative writs, claiming that the Board's resolution was an abuse of its discretionary authority in that it was "in all regards arbitrary, capricious, unreasonable and otherwise wrongful[.]"

Judge Karen Cassidy heard argument on June 4, 2009. Village contended that, in approving Aldi's application and granting the three variances, the Board had essentially "chose[n] to treat" the governing ordinances as "insignificant." Village also argued that Aldi needed a variance for the number of parking spaces it proposed to have since "truck deliveries . . . w[ould] result in . . . some loss of parking spaces."

In a letter opinion of July 15, 2009, Judge Cassidy reviewed the testimony and evidence presented before the Board and concluded that "in light of the evidentiary support in the record for the ultimate decision by the Board . . . this court finds that the decision . . . granting final site plan approval and variance relief was within the discretion granted the Board by the MLUL." The judge found that "[t]he Board's decision was supported by substantial evidence in the record below, and as such, cannot be said to be arbitrary or capricious."

With respect to the issue of parking spaces, in a letter brief filed with this court pursuant to Rule 2:6-11(d) on February 18, 2010, Aldi advised of changes to the Union Township Land Development Code (LDC), specifically the adoption of Ordinance 5120 which "amended 170-239(A) of the [LDC] to change the parking requirements . . . ." Under the amended LDC, retail food establishments with less than fifty thousand square feet of gross floor area must provide one parking spot for every 200 square feet of gross floor area, as contrasted with the previous requirement of one space for every 150 square feet of gross floor area. As a result, the number of parking spaces required on the subject property was reduced from eighty-nine to sixty-seven. "Under the time of decision rule, an agency or reviewing court will apply the law in effect at the time of its decision rather than the law in effect when the issues were initially presented." Maragliano v. Land Use Bd. of Tp. of Wantage, 403 N.J. Super. 80, 83 (App. Div. 2008), certif. denied, 197 N.J. 476 (2009). We therefore consider the amended ordinance applicable to our decision.

On appeal, Village contends that the Board's decision approving the application and granting the three variances was arbitrary and capricious. We have carefully reviewed the record in light of this contention and conclude it is without merit. We affirm substantially for the reasons given by Judge Cassidy in her thoughtful and comprehensive letter opinion of July 15, 2009. R. 2:11-3(e)(1)(A). We add only the following comments.

When confronted with a claim that a board's exercise of discretionary authority was arbitrary, capricious or unreasonable, we are mindful that "[b]ecause of their expertise and knowledge of local conditions," such boards have "wide latitude in the exercise of their delegated discretion." N.Y. SMSA Ltd., P'ship v. Bd. of Adjustment., 324 N.J. Super. 149, 163-64 (App. Div.) certif. denied, 162 N.J. 488 (1999). Therefore, a board's decision will not be overturned on appeal absent a clear abuse of discretion. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor, 172 N.J. 75, 82 (2002). The variances at issue are so-called "c(2) variances" governed by N.J.S.A. 40:55D-70(c)(2), which provides, in pertinent part:

[W]here in an application . . . 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, [the board shall have the power to] grant a variance to allow departure from regulations . . . .

"The grant of approval [of a c(2) variance] must actually benefit the community in that it represents a better zoning alternative for the property. The focus of a c(2) case . . . [is] on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community." Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 563 (1988). A c(2) variance "requires a balancing of the benefits and detriments from the grant of the variance." Bressman v. Gash, 131 N.J. 517, 523 (1993).

What must be shown is that the application (1) relates to a specific piece of property; (2) that the purposes of the [MLUL] would be advanced by a deviation from the zoning ordinance requirement; (3) that the variance can be granted without substantial detriment to the public good; (4) that the benefits of the deviation would substantially outweigh any detriment; and (5) that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance.

[William M. Cox, New Jersey Zoning and Land Use Administration, 6-3.3 (2010).]

The record clearly established the blighted conditions that currently exist on the subject property. Aldi's proposal will not only eliminate those conditions, but will "enhance the [p]roperty and the use thereof, and will not cause a detrimental impact[,]" as the Board found and as Judge Cassidy concurred. Under these circumstances, we conclude that Village is hard-pressed to argue that "the record lacks any indication that the Board even applied the MLUL criteria . . . , despite the Board's 'lip service' to those statutory criteria."

We briefly address Village's arguments specifically directed to the Board's grant of a c(2) variance to permit front yard parking on the subject property. We reject as wholly without merit the contention that the Board erred by treating the front-yard parking issue as a pre-existing non-conforming condition, as contemplated by N.J.S.A. 40:55D-68. To support this argument, Village points to paragraph 17 of the Board's August 28, 2008 resolution, which provides in pertinent part that "the front yard parking deviation is an existing condition realized by the prior user, and one impacting most other retail uses in the area." Village has taken this language out of context. The Board clearly approved front-yard parking as a variance under N.J.S.A. 40:55D-70(c)(2), and not as a non-conforming use under N.J.S.A. 40:55D-68, which statute is nowhere cited in the Board's resolution.

Village's next argument, that the Board's decision to grant a variance for front-yard parking was without "an adequate basis in the record[,]" lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say, the Board's decision is supported by Aldi's experts who noted similar parking arrangements in the neighboring business establishments and who identified specific purposes of the MLUL that would be advanced by the project. Moreover, Aldi's expert, Dean, provided extensive testimony explaining why front-yard parking was the safest option, as it would separate customer parking from delivery activity; this testimony was unrefuted.

 
In sum, we find Village's arguments unavailing, and we conclude, as did Judge Cassidy "that the decision made by the Board granting site plan approval and variance relief was supported by substantial evidence contained in the record and was not arbitrary, capricious, or an abuse of discretion." Affirmed.

Aldi's original application requested twelve variances; however, on March 14, 2008, Aldi submitted a letter to the Board stating that it has revised its plans to "address many of the comments which have come up during the . . . process, and which substantially reduce the items requiring variance . . . relief."

In its complaint, Village also asserted that because four of the six Board members who voted to approve the application had been absent from one of the hearings and had failed to certify in writing that they had either listened to a recording or read the transcript of that hearing, the resolution should be declared null and void and of no force and effect. Village has not pursued this issue on appeal.

We note that in her decision the judge inadvertently referred to N.J.S.A. 40:55D-70(c)(1), rather than (c)(2); however, she correctly cited the pertinent portions of the Board's decision. Furthermore, there is no dispute that the variances were granted under (c)(2).

(continued)

(continued)

14

A-6340-08T2

 

August 6, 2010