VILLAGE SUPERMARKETS INC v. THE PLANNING BOARD OF THE TOWNSHIP OF HANOVER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

VILLAGE SUPERMARKETS, INC.,

Plaintiff-Appellant,

v.

THE PLANNING BOARD OF THE

TOWNSHIP OF HANOVER, and

HANOVER 3201 REALTY, LLC,

Defendants-Respondents.

Argued telephonically November 17, 2015

Decided December 14, 2015

Before Judges Simonelli, Carroll, and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2159-13.

David W. Fassett argued the cause for appellant (Arseneault & Fassett, LLP, attorneys; Mr. Fassett and Jack Arseneault, on the briefs).

Richard L. Rudin and Michael D. Sullivan argued the cause for respondents (Stickel, Koenig, Sullivan & Drill, attorneys for respondent Planning Board of the Township of Hanover; Weiner Lesniak, LLP, attorneys for respondent Hanover 3201 Realty, LLC; Mr. Rudin, Mr. Sullivan, and Glenn C. Kienz, of counsel and on the joint brief; Richard Brigliadoro, Ronald D. Cucchiaro and Joseph T. Daly, on the joint brief).

PER CURIAM

Village Supermarkets, Inc. (Village) is the owner and operator of a supermarket in the Township of Hanover (the Township), and the holder of a leasehold interest in property where it previously operated a supermarket in neighboring Morris Plains. Village appeals from a June 30, 2014 Law Division judgment dismissing its action in lieu of prerogative writs. Village's lawsuit challenged site plan approval and certain "subsection c" bulk variances under N.J.S.A. 40:55D-70(c)(2) ("the approvals") that the Township Planning Board (the Board) granted to defendant Hanover 3201 Realty, LLC (Hanover 3201). Hanover 3201 obtained the approvals to enable it to construct a shopping center consisting of a Wegmans supermarket, three restaurants, and a bank.

The trial judge found that Village lacked standing to challenge the approvals. Notwithstanding, in a comprehensive thirty-page written opinion, the trial judge also carefully examined each of the issues raised by Village and determined that they lacked merit. Having reviewed the record in light of the arguments presented, we conclude that Village established the requisite standing to challenge the Board's approvals. On the merits, we affirm the trial judge's findings rejecting Village's various challenges to the approvals. We do so substantially for the reasons set forth in the judge's cogent written decision.

The property in question consists of approximately 38.5 acres located at the intersection of Sylvan Way and Ridgedale Avenue in Hanover (the "Property"). It is part of a larger parcel consisting of approximately 400 acres known as the Mack-Cali ("MC") Business Campus ("Campus"). The Campus is located on Route 10 between I-287 and Route 202 in the Townships of Hanover and Parsippany-Troy Hills.

As noted, Village presently owns a supermarket in Hanover that is located approximately two miles from the Property. Village also previously operated a supermarket at the intersection of Route 10 and Route 202 in Morris Plains, approximately one mile from the Property. Although Village closed its Morris Plains supermarket when it opened its Hanover store in November 2013, it retained a leasehold interest in the Morris Plains location and potentially may resume operations there in the future.

Prudential Insurance Company of America (Prudential), the original owner of the Campus, had previously sought to develop it into a multi-million square foot office complex. On November 14, 1978, Prudential entered into a developer's agreement with the New Jersey Department of Transportation (NJDOT). This agreement required Prudential to construct various roadway improvements in exchange for the right to develop the Campus in four phases. On June 16, 1981, Prudential and the NJDOT entered into an addendum to the developer's agreement as part of the project's second phase. Prudential thereby agreed to construct additional traffic improvements, and obtained approval to build two office buildings and a hotel. On May 27, 1986, Prudential and the NJDOT entered into a second addendum to their developer's agreement that obligated Prudential to make additional traffic improvements in the third and fourth phases of the development. Exhibit A-2 of the 1986 addendum described the phase three construction schedule as consisting of 1,750,000 square feet of office space. Notably, in connection with the fourth phase, Prudential was required to construct a grade separation with ramps above I-287 (the "overpass").

On February 25, 1986, the Board adopted a resolution granting Prudential preliminary major subdivision approval for the Campus development. The Board's approval was conditioned on Prudential's compliance with the Township's engineering report, and "[i]mplementation of the highway improvement plan . . . including the construction of Dryden Way ramps, Ridgedale Avenue extension and improvements, and the bridge over I-287 with ramps."

On February 28, 1989, the Board adopted a second resolution granting Prudential preliminary major subdivision approval for the Campus project.1 The 1989 approval was conditioned on Prudential's compliance with designated items contained in the December 20, 1988 Township engineer's review list. Although the 1989 resolution itself was silent as to the I-287 overpass requirement, item 1(c) on the engineer's list contained the notation, "[NJDOT] 287 overpass approval pending."

On February 23, 1993, the Board granted Prudential final major subdivision approval for the Campus project. This third Board resolution required Prudential to enter into a developer's agreement with the Township regarding the Route I-287 overpass improvements.

On March 23, 1995, the Township entered into a developer's agreement with Prudential's affiliate, PRUBETA-3, to implement the Board's 1989 and 1993 preliminary and final subdivision approvals. Under this agreement, all work was to be completed within forty-eight months, unless extended by the Township. With respect to the I-287 overpass, the developer's agreement recited

17. The issue of construction of a bridge over [I-287] connecting Ridgedale Avenue to Stoney Brook Road (the "Bridge") shall be resolved by mutual agreement between Township and Developer and shall be subject to obtaining all necessary governmental approvals. In no event shall construction of any Bridge precede completion and occupancy of one or more buildings on the subdivided lots in the Township, having an aggregate floor space of 250,000 square feet.

The agreement also provided that it "shall run with the land as shall also the covenants herein contained, and shall be to the benefit of the Developer and the Township and their respective successors and assigns."

In 1998, Prudential sold the Campus to MC, which agreed to assume all of Prudential's obligations under its developer's agreement with the Township. At that time, Prudential had completed most of the traffic improvements required by the 1978 NJDOT developer's agreement, but not the phase four improvements or the I-287 overpass. In March 1999, MC wrote to the Township requesting a two-year extension to complete the improvements. The record before the trial court appears to be silent on whether this request was granted.

On December 13, 2012, the Township amended its zoning ordinance, thereby rezoning the Property to an Office Building Designated Shopping Center Zone District in which supermarkets were a permitted use. Following the zone change, Hanover 3201 applied to the Board for preliminary and final site plan approval and bulk variance relief ("the 2013 application").2 Hanover 3201 sought approval to construct five buildings totaling 170,550 square feet on the Property, including a 140,000 square foot Wegmans supermarket, three restaurants, and a bank.

Encompassed within the 2013 application were proposed changes to the intersection of Route 10 and Ridgedale Avenue. Hanover 3201 sought to transform this intersection into the shopping center's primary means of ingress and egress. Specifically, Hanover 3201 proposed to: (1) add an exclusive left-turn lane to eastbound Route 10; (2) modify southbound Ridgedale Avenue to add a double left-turn lane and a through lane within the intersection; and (3) modify northbound Ridgedale Avenue to include a double left-turn lane and a through lane.

The Board's application form required the applicant to (1) disclose "any deed restrictions, protective covenants, easements, etc. affecting the subject property;" and (2) attach any prior resolutions involving the Property. In response, Hanover 3201 submitted the 1989 and 1993 Board resolutions. It did not submit the Board's 1986 resolution, the NJDOT developer's agreement and its two addendums, the 1995 Township developer's agreement, or the 1999 extension request ("the omitted documents").

At a public hearing conducted on June 18, 2013, Hanover 3201 presented the testimony of its site engineer, Joseph Fleming; its traffic engineer, Joseph Staigar; and its expert planner, Thomas Golden. The Board also reviewed reports by the Township's professional planner and engineer. No local residents or any representative of Village testified in opposition to the application.

Testifying to the results of his traffic study, Staigar stated: "[t]hose intersections that we [] studied incorporate intersections within the Township," including the Route 10 intersections with Ridgedale Avenue, [I-]287, and Jefferson Road. Notably, Staigar testified that the traffic improvements proposed for the Route 10/Ridgedale Avenue intersection were presently pending review by the NJDOT. He commented

[s]o given the improvements that we're proposing, and again the land systems all work as well. [NJ]DOT is concerned about the potential backup from the traffic light onto the off ramp of [I-]287 to Route 10. Again, we illustrated to them that that doesn't come near to backing up onto that ramp system. So we have good levels of service throughout and again the improvements that we're making at the Route 10/Ridgedale Avenue [intersection] are significant in the sense that they mitigate any potential impacts you have at that intersection.

Staigar also observed that there were "at least four other major access points" that "help[ed] disburse traffic to and from the site."

At the conclusion of the hearing, the Board voted to approve the application. On June 25, 2013, the Board adopted a detailed eight-page resolution setting forth its findings and its reasons for granting the approvals. Pertinent to this appeal, the Board determined, through Fleming's testimony, that "adequate and safe ingress [and] egress exist[]." The Board also accepted Staigar's testimony and concluded

[b]ased upon the testimony presented by the applicant and the traffic study, the Board determined the modifications to the intersection of Ridgedale Avenue and Route 10 can be accomplished such that the intersection operates at acceptable peak hour levels of service. The volume-to-capacity ratios for each movement will be less than one, which demonstrates that there is reserve capacity at the intersection to accommodate ongoing area development. More importantly, the improvements will facilitate a more appropriate access scheme for the proposed shopping center to and from the regional roadway network and will eliminate the potential motorists' confusion and safety concerns that could occur should the intersection remain incomplete.

The Board's approval was subject to various conditions, including Hanover 3201's compliance with delineated provisions of the reports submitted by the Township's planner and engineer. Among the noted requirements were written approvals from a number of "[o]utside agencies" including the NJDOT.

Village filed a complaint in lieu of prerogative writs challenging the approvals on three primary grounds: (1) the Board's 2013 resolution merely provided conclusory factual determinations and failed to accurately memorialize the Board's approval; (2) the Board's decision regarding the application's traffic impacts was not supported by the record; and (3) the application was procedurally defective due to Hanover 3201's failure to submit the omitted documents to the Board, especially those pertaining to its obligation to construct the I-287 overpass.

The trial judge reviewed the record before the Board and the written submissions of the parties, and it heard the oral arguments of counsel. The judge issued a written decision and judgment on June 30, 2014, denying relief to Village and dismissing its complaint. In addition to other reasons for rejecting Village's challenge to the approvals, the judge found that Village lacked standing to object to the Board's 2013 resolution. The judge also found that the NJDOT exercised exclusive jurisdiction over the I-287 improvements and that the omitted documents were immaterial to the Board's decision on whether to approve the 2013 application.

In this appeal, Village argues that the trial judge erred in concluding that (1) it lacked standing to challenge the approvals; and (2) NJDOT's exclusive jurisdiction over the traffic improvements excused Hanover 3201's failure to submit the omitted documents. Village also contends that the Board lacked jurisdiction to issue the 2013 resolution until Hanover 3201 either first complied with the improvements required pursuant to the 1995 Township developer's agreement, or obtained relief from those requirements.

The applicable standard of review is well-established. "Judicial review of the decision of a Planning Board or Board of Adjustment ordinarily is limited. A board's decision 'is presumptively valid, and is reversible only if arbitrary, capricious, and unreasonable.'" New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999) (quoting Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998)). The party challenging a municipal board's decision bears the burden of overcoming the presumption of validity and demonstrating the unreasonableness of the board's action. Toll Bros., Inc. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 256 (2008). The reason for this standard is that

public bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion. The 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 v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005) (citation omitted).]

On appeal, we review the Board's action using the same standard as the trial court. Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). The deferential standard of judicial review, however, does not apply to purely legal questions affecting a municipal board's decision. The court must determine for itself whether the law has been applied correctly. See Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993); Urban v. Planning Bd. of Manasquan, 238 N.J. Super. 105, 111 (App. Div.), certif. granted, 121 N.J. 664 (1990), and modified, 124 N.J. 651 (1991).

We first consider Village's contention that the trial judge erred as a matter of law in concluding that it lacked standing to challenge the 2013 resolution. Village asserts that it enjoys standing as a taxpayer in the Township because it owns and operates a supermarket there. Additionally, it argues that the project's direct impact upon Village's Morris Plains site, which is located one mile away at the intersection of Route 10 and Route 202, also confers standing. We agree.

New Jersey courts traditionally have taken a "generous view of standing." In re Protest of Award of N.J. State Contract A71188, 422 N.J. Super. 275, 289 (App. Div. 2011); see also Jen Elec., Inc. v. Cnty. of Essex, 197 N.J. 627, 645 (2009). In the present context of a land use dispute, the Municipal Land Use Law (the "MLUL") specifically allows in N.J.S.A. 40:55D-18 such challenges to be made by "an interested party," which the statute broadly defines to include "any person, whether residing within or without the municipality, whose right to use, acquire, or enjoy property is or may be affected by any action taken under [the MLUL]." N.J.S.A. 40:55D-4. Our courts have expansively applied these standing concepts in land use litigation. See, e.g., Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 215 (App. Div. 1999) (noting that any citizen or taxpayer of a municipality has standing to challenge an action of the board of adjustment under the MLUL); see also Neu v. Planning Bd. of Twp. of Union, 352 N.J. Super. 544, 552 (App. Div. 2002) (holding that owners of property in an adjacent municipality may have a sufficient stake in a land use decision to provide them with standing).

Application of these principles leads us to conclude that Village, as a taxpayer, property owner, and business owner in the Township, has a sufficient stake in the approval of Hanover 3201's shopping center to possess standing to challenge the Board's approvals. Additionally, the project is significant in scope and may likely impact Village's Morris Plains location and, in particular, the Route 10 retail corridor. The fact that Village is a retail competitor of the proposed Wegmans supermarket by no means eliminates its standing to pursue this litigation. See DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super. 161, 171-72 (App. Div.) (noting that business competitors may be "particularly well equipped" to pursue a challenge under the MLUL and to provide illuminating background information), certif. denied, 181 N.J. 544 (2004).

Although we part company with the judge's conclusion that Village lacked standing, we find the judge's remaining determinations unassailable. We incorporate and adopt in full the judge's careful analysis of each of the issues raised by Village in challenging the 2013 resolution.

In his written opinion, the judge reviewed the history of the subject application, the prior resolutions and developer's agreements, and the approvals sought in the 2013 application. He concluded that Fleming's expert testimony supported the Board's determination that there was adequate ingress and egress and on-site vehicular circulation. The judge noted Staigar's "comprehensive testimony regarding the [a]pplication's potential impact on nearby roadways." Staigar "studied the intersections on state highways and those near the Property." Specifically, Staigar "studied Route 10, its intersection with Ridgedale Avenue, and the ramp systems between the interchanges of Route 10 and I-287 and Route 10 and Jefferson Road." Contrary to Village's argument that Staigar's calculations were based on "mere conjecture," the judge found that Staigar's "Traffic Impact Assessment for Ridgedale Avenue and Route 10 . . . was based on NJDOT approved methodologies."

The judge further found that the record reflected that the Board considered the concerns set forth in the Township Engineer's and Township Planner's reports, and properly conditioned approval on Hanover 3201's compliance with their reports. The judge concluded that

while adopting [] Staigar's conclusions, the Resolution does not simply parrot his language. Furthermore, the Board recognized that Hanover 3201's improvements would improve the existing roadways and intersections. The [c]ourt is satisfied that the Board made its traffic determinations in light of the evidence before it and that its determination was not arbitrary, capricious[,] or unreasonable.

Finally, the judge rejected Village's arguments that (1) the application should be remanded to the Board because Hanover failed to disclose to the Board the omitted documents; and (2) the Board lacked the ability to ignore or overrule the 1995 Township Developer's Agreement until Hanover 3201 either complied with its obligations or obtained relief from those obligations from the Township's governing body.3 The judge wrote

Preliminarily, the [c]ourt notes that Village fails to support its argument that the Planning Board lacks the authority to ignore or fail to consider agreements into which the [g]overning [b]ody enters. Moreover, . . . the Board had before it the 1993 Hanover [r]esolution, which alerted it to the I-287 [o]verpass issue. In addition, the [c]ourt agrees with defendants that the [o]mitted [d]ocuments are irrelevant to Hanover 3201's requested site plan and "C" variance approvals, because the I-287 improvements are matters within the exclusive jurisdiction of the NJDOT.

The judge found "no colorable claim that Hanover 3201 deceived the Planning Board by fraud." Accordingly, the judge concluded that "Hanover 3201 was not required to submit the [o]mitted [d]ocuments to the Planning Board, nor was the Planning Board required to consider them prior to issuing the [r]esolution."

Having reviewed the record, briefs, and arguments of counsel, we are satisfied we need not add to the judge's thoughtful analysis of the issues presented. Thus, we affirm substantially for the reasons set forth in the trial judge's opinion.

Affirmed.

1 The Township engineer's review letter, referenced in the Board's February 28, 1989 resolution, noted that the Board granted "a similar subdivision . . . on February 25, 1986." The engineer further noted that, since that earlier approval, Prudential had obtained a permit from the Army Corps of Engineers that "changed the alignment of the road system and created large undevelopable wetlands areas."

2 The application certified that Hanover 3201 was owned 100% by MC.

3 While not part of the trial court record, in their briefs both parties refer to (1) a February 20, 2014 resolution adopted by the Township deeming the roadway improvements included in the 1995 developer's agreement inapplicable to the Property's development; and (2) a May 19, 2014 agreement entered into between Hanover 3201 and the NJDOT that effectively rescinded the I-287 overpass and other roadway improvements required by the NJDOT developer's agreement. We observe, without deciding, that these subsequent actions may moot Village's arguments regarding the omitted documents and Hanover 3201's continuing obligation to construct the I-287 overpass.