JANICE HARPER-YOUNG v. LAND USE BOARD, BOROUGH OF BUTLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3121-13T4

JANICE HARPER-YOUNG,

Plaintiff,

and

CRAIG BRINSTER c/o STONY BROOK

LAND DEVELOPMENT L.L.C., JERRY

ALLISON, AMEER KRASS, and DOREEN

HUBER,

Plaintiffs/Intervenors-

Appellants,

v.

LAND USE BOARD, BOROUGH OF BUTLER,

QUICKCHEK CORPORATION,

Defendants-Respondents,

and

MAYOR and GOVERNING BODY OF THE

BOROUGH OF BUTLER, a municipal

corporation of the State of

New Jersey,

Defendants.

____________________________________

Argued May 5, 2015 Decided June 4, 2015

Before Judges Koblitz, Haas and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2252-12.

Robert J. Pansulla argued the cause for appellants (Finazzo Cossolini O'Leary Meola & Hager, L.L.C., attorneys; Mr. Pansulla, on the briefs).

John M. Barbarula argued the cause for respondent Land Use Board, Borough of Butler (Barbarula Law Offices, attorneys; Mr. Barbarula, on the brief).

Peter V. McArthur argued the cause for respondent QuickChek Corporation (Azrak & Associates, L.L.C., attorneys; Fredric F. Azrak, of counsel and on the brief; Mr. McArthur, of counsel and on the brief; Wolfgang G. Robinson, on the brief).

PER CURIAM

In this action in lieu of prerogative writs, intervenors Craig Brinster,1 c/o Stony Brook Land Development, L.L.C., Jerry Allison, Ameer Krass, and Doreen Huber, appeal from a February 7, 2014 order affirming the Borough of Butler Board of Adjustment's resolution, after remand by the court, giving further reasons for its July 19, 2012 approval of the QuickChek Corporation application for a conditional-use variance, site plan approval, and bulk variances in order to construct an integrated convenience center and gasoline service station on route 23 in Butler. We affirm.

The property is located within the Highway Commercial-2 zoning district of Butler. In conformance with the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163, QuickChek notified all the property owners within 200 feet of the proposed development.

Over the course of eight hearing days, QuickChek presented testimony from its real estate manager, professional engineering expert, traffic expert and planning expert. The Board then heard testimony from the objectors' witnesses and visited the site to resolve conflicting testimony between traffic experts presented by the opposing parties. The Board voted, five to two, to approve QuickChek's application and, on July 16, 2012, adopted a resolution to that effect.

Plaintiff filed a complaint in lieu of prerogative writs, challenging the Board's findings and the adequacy of the initial notice given by QuickChek to the neighbors. Before the court ruled, intervenors were included by consent on condition that there be no amendments to the pleadings or supplementation of the record.

Assignment Judge Thomas L. Weisenbeck remanded to the Board to make more specific and comprehensive findings of fact and conclusions of law. The three remaining Board members who had voted favorably on the application made additional supportive findings that resulted in a new resolution, in which they found QuickChek's witnesses more credible than the those of the objectors. The new resolution also contained exhaustive, detailed findings of fact and a thorough legal analysis. In his second written opinion, of February 7, 2014, Judge Weisenbeck reviewed these detailed findings, determining that the resolution was supported by the record and was not arbitrary or capricious.

Intervenors argue that they were improperly prevented from amending their complaint so as to allow them to properly put before us their objection to the second resolution. R. 4:69-6(b)(3). The denial of their right to amend their complaint does not preclude us from reviewing the second resolution, as we perceive review of the second resolution to be encompassed within the appeal of the initial resolution.

Judge Weisenbeck also approved the vote by the three remaining members of the Board who had voted for the approval in 2012. He cited to N.J.S.A. 40:55D-10(g)(2), which provides in pertinent part that "[o]nly the members of the municipal agency who voted for the action taken may vote on the memorializing resolution[.]"

Intervenors object that only the members of the current Board who voted affirmatively to approve QuickChek's application were permitted to vote on the second resolution. Our Supreme Court has opined that newly appointed Board members are only required to participate in a vote if there is a "need to go beyond the record to reach a proper decision." Pizzo Mantin Grp. v. Twp. of Randolph, 137 N.J. 216, 234 (1994) (citation omitted). A majority of the Board members who had voted affirmatively, three out of five, voted on the second resolution. One member had passed away and the fifth was no longer on the Board. We agree with Judge Weisenbeck that these were the proper members to vote and a sufficient number of Board members to affirm the resolution. See N.J.S.A. 40:55D-10(g)(2) (allowing a memorializing resolution, passed within forty-five days of the resolution, to be voted on by as few as one member of the Board).

Intervenors also argue that QuickChek failed to satisfy the statutory criteria for the grant of a conditional-use variance, pursuant to N.J.S.A. 40:55D-70(d)(3). Use variances require proof of both positive and negative criteria. Sica v. Bd. of Adjustment, 127 N.J. 152, 156 (1992). To satisfy the positive criteria, the applicant must demonstrate "'special reasons' for the grant of the variance." Ibid. Therefore, "a conditional-use variance applicant must show that the site will accommodate the problems associated with the use even though the proposal does not comply with the conditions the ordinance established to address those problems." Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 299 (1994). As for the negative criteria, it necessitates "proof that the variance can be granted without substantial detriment to the public good and that it will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." Sica, supra, 127 N.J. at 156 (internal quotation marks omitted).

Furthermore, intervenors argue that QuickChek failed to meet its burden of demonstrating that the statutory criteria for the grant of a bulk variance were met. Pursuant to N.J.S.A. 40:55D-70(c)(2), a variance for a specific property is allowed so long as the deviation from the bulk provision "of a zoning ordinance would advance the purposes of the zoning plan and if the benefit derived from the deviation would substantially outweigh any detriment." Ten Stary Dom P ship v. Mauro, 216 N.J. 16, 30 (2013). "The applicant bears the burden of proving both the positive and negative criteria" for a c(2) variance." Ibid. (citation omitted).

We affirm Judge Weisenbeck's decision that the detailed and thorough findings of the Board after remand were not arbitrary or capricious, substantially for the reasons expressed in his written opinion attached to the February 7, 2014 order. The Board's approval of the QuickChek next door to the 7-Eleven on Route 23 in Butler was not unreasonable.

Intervenors also argue that QuickChek failed to properly notice the County Planning Board (CPB) and the State Department of Transportation (DOT), and that the changes to the application were so significant that it nullified the notices that were provided to neighbors.

Proper notice is a jurisdictional prerequisite to a land-use board's authority to conduct a hearing on an application. See N.J.S.A. 40:55D-12; Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adjustment, 154 N.J. 62, 79 (1988); Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 236 (App. Div. 1996). If the content of the notice is defective or those entitled to receive notice are not served, the notice is invalid and the board is not authorized to act on the application. Stafford, supra, 154 N.J. at 79.

We have interpreted N.J.S.A. 40:55D-11 to require "an accurate description of what the property will be used for under the application." Perlmart, supra, 295 N.J. Super. at 238 (citation omitted). To fulfill that prerequisite, the application must describe "the nature of the matters to be considered" in such a "common sense description of the nature of the application . . . that the ordinary layperson could understand its potential impact upon him or her." Id. at 236-39; Shakoor Supermarkets, Inc. v. Old Bridge Twp. Planning Bd., 420 N.J. Super. 193, 201 (App. Div.), certif. denied, 208 N.J. 598 (2011).

Additional notice is only required if an application is amended to the point that it may be deemed "a substantially new application[.]" Lake Shore Estates, Inc. v. Denville Twp. Planning Bd., 255 N.J. Super. 580, 592 (App. Div. 1991), aff'd o.b., 127 N.J. 394 (1992). Re-notice is not required so long as the "central focus" of the matter has not changed. Schmidhausler v. Planning Bd. of Lake Como, 408 N.J. Super. 1, 11 (App. Div. 2009).

Intervenors failed to establish that re-notice was required because of a substantial change or that the Board lacked jurisdiction. The notice mailed by QuickChek to all property owners within 200 feet stated in pertinent part

Please take Notice that an Application has been filed to the Planning Board for the Borough of Butler to permit for the demolition of all existing buildings and structures and the construction of a 5,190 square foot QuickChek Food Store with thirteen (13) seats and with associated retail sale of gas under a 4,610 square foot canopy with sixteen (16) fueling positions.

This notice was sufficient to inform a layperson about the construction proposed by QuickChek. The focus of QuickChek's project never changed from an integrated gas station and convenience store,2 so there was no need for a re-notice. As for intervenors' contention that the change in the height of the wall was a substantial change requiring re-noticing, the wall was made higher only to provide enhanced screening and sound attenuation to benefit the neighbors.

Intervenors argue that the Morris County Planning Board (MCPB) and the DOT were not properly provided notice. The State Commissioner of Transportation and the MCPB knew about the proposed construction and were provided a full opportunity to contest QuickChek's application. QuickChek engaged in correspondence with the MCPB before the first hearing. QuickChek was required to and did obtain pre-approval from the DOT. Additionally, intervenors' failure to timely assert lack of notice on the record of the proceedings, pursuant to N.J.S.A. 40:55D-12(e) or (f), resulted in a waiver of the claim. Izenberg v. Bd. of Adjustment, 35 N.J. Super. 583, 588 (App. Div. 1955).

QuickChek gave proper notice; the Board, after remand for clarification, made a well-reasoned decision in conformity with legal requirements; and the second resolution commemorating those reasons was voted on by the appropriate Board members. We thus affirm the decision of Judge Weisenbeck in all respects.

Affirmed.

1 Brinster is the principal and owner of Stony Brook Land Development, L.L.C., which owns property where a 7-Eleven convenience store is located, adjacent to the proposed QuickChek. The original plaintiff, who lived directly to the rear of the site and feared the proposed construction would negatively impact her disabled son, settled with QuickChek prior to the judge's initial review of the Board's decision.

2 QuickChek abandoned plans for a restaurant to accommodate the concerns of the Board.