MELISA MALASHEVITZ v. GOVERNING BODY OF THE TOWNSHIP OF LITTLE EGG HARBOR

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2143-11T1

MELISA MALASHEVITZ,

Plaintiff-Appellant,

v.

GOVERNING BODY OF THE

TOWNSHIP OF LITTLE EGG

HARBOR, LITTLE EGG HARBOR

PLANNING BOARD, and WAL-MART

REAL ESTATE BUSINESS TRUST,

Defendants-Respondents.

________________________________

Argued April 10, 2013 Decided May 30, 2013

 

Before Judges Sapp-Peterson, Haas and Happas.

 

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1919-09.

 

Ronald S. Gasiorowski argued the cause for appellant (Gasiorowski & Holobinko, attorneys; Cathy S. Gasiorowski, on the brief).

 

Michael J. Gilmore argued the cause for respondent Governing Body of the Township of Little Egg Harbor (Gilmore & Monahan, P.A., attorneys; Mr. Gilmore, on the brief).

 

Terry F. Brady argued the cause for respondent Little Egg Harbor Planning Board (Brady & Kunz, P.C., attorneys; Mr. Brady, on the brief). 0

 

Kenneth D. Friedman argued the cause for respondent Wal-Mart Real Estate Business Trust (Manatt, Phelps & Phillips, L.L.P., attorneys; Mr. Friedman, on the brief).

 

PER CURIAM

Plaintiff, Melisa Malashevitz, appeals from the dismissal of her complaint in lieu of prerogative writs filed against Little Egg Harbor Township (Township), Little Egg Harbor Township Planning Board (Planning Board), and Wal-Mart Real Estate Business Trust ("Wal-Mart") (collectively "defendants"). We affirm substantially for the reasons expressed by Judge Vincent Grasso in his comprehensive and well-reasoned December 2, 2011 written opinion.

Wal-Mart filed preliminary and final subdivision and site plan applications with the Planning Board to construct a Wal-Mart supercenter and a bank on the site of an abandoned sand and gravel pit along Route 9 within the Township. The property consists of 70.73 acres, of which 64 acres are located within the General Business (GB) commercial zone and 6.7 acres are situated within the R-200 residential zone. Under Wal-Mart's proposed plan, none of the property located within the R-200 residential zone would be subjected to site improvements or land disturbances. Rather, this property would remain in its natural wooded state and be deed-restricted against any future development. The proposed development within the GB zone is a

permitted use and is consistent with the Township's Master Plan, which allows for commercial development along the Route 9 corridor. Wal-Mart did, however, seek variances for the number, size and location of signs, and for the height of a sound wall it proposed to construct behind the supercenter. It additionally requested waivers for parking lot design and landscaping. The Planning Board conditionally approved the C-variances and waiver requests.

Meanwhile, the Planning Board approved the application. It noted that over 90% of the site is located in the GB zone and concluded Ordinance 2005-002 (Ordinance), which it adopted in February 2005, would apply to the project. Under the Ordinance,

[w]here a zoning lot is located in part in one zoning district and in part in another zoning district, the entire lot may be used for permitted uses in the zone containing the majority (greater than 50%) of the land area of the split zoned lot and all zoning requirements for that zone shall apply to the entire lot.

 

On May 26, 2009, plaintiff filed a six-count complaint in lieu of prerogative writs against defendants, seeking a judgment declaring the Ordinance to be null and void, and reversing the Planning Board's approval of Wal-Mart's subdivision and site plan applications. In Counts One through Five, plaintiff alleged the Ordinance is facially invalid because it contravenes

the Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-1 to 163. In Count Six, plaintiff alleged the Planning Board's approval of Wal-Mart's application was based upon its reliance upon an inaccurate traffic impact study. Following a brief remand to permit the Planning Board to consider Wal-Mart's amended plan, which the Planning Board unanimously approved, Judge Grasso conducted a bifurcated bench trial. The first portion of the trial addressed the validity of the Ordinance, while the second portion focused upon the Planning Board's approval of Wal-Mart's site plan application. The witnesses who testified, however, all testified during the first phase of the trial.

At the conclusion of the first phase, Judge Grasso rendered an oral decision finding that plaintiff failed to satisfy her burden to overcome the presumption of validity attached to municipal ordinances, either facially or as applied. Consequently, the judge dismissed the first five counts of the complaint. At the conclusion of the second phase of the trial, Judge Grasso concluded the Planning Board's decision was supported by ample and competent evidence in the record and was not arbitrary, capricious, or unreasonable. Thereafter, the judge entered an order dismissing the remaining count of the complaint with prejudice and the present appeal followed.

On appeal, plaintiff contends:

POINT ONE

 

LITTLE EGG HARBOR'S ORDINANCE 2005-002 IMPERMISSIBLY BESTOWS RIGHTS UPON AN OWNER OF A SPLIT ZONED LOT WHICH ARE BY STATUTE EXCLUSIVELY RESERVED FOR LITTLE EGG HARBOR'S ZONING BOARD OF ADJUSTMENT OR ITS GOVERNING BODY.

 

POINT TWO

 

JUDGE GRASSO FAILED TO RECOGNIZE OR ADDRESS THE NEGATIVE IMPACTS THE APPLICANT'S PROPOSAL WOULD HAVE UPON ADJACENT PROPERTY OWNERS IN THE R-200 ZONE AS WELL AS LITTLE EGG HARBOR'S MASTER PLAN.

 

POINT THREE

 

ORDINANCE 2005-002 WAS PROCEDURALLY FLAWED AND MUST BE INVALIDATED AS A MATTER OF LAW AS NO CONSISTENCY REPORT WAS TRANSMITTED TO OR REVIEWED BY THE LITTLE EGG HARBOR GOVERNING BODY'S FINAL READING AND ADOPTION OF SAID ORDINANCE ON FEBRUARY 5, 2005.

 

I.

 

Plaintiff's contention in Point Three that the Ordinance is procedurally flawed and therefore invalid as a matter of law is based upon the Township's failure to obtain a consistency report from the Planning Board prior to its adoption of the Ordinance. We reject this contention on procedural grounds as well as substantively.

This argument was never presented to the trial court, notwithstanding that the opportunity to do so was available to plaintiff. Ordinarily, we will decline consideration of an

issue not properly raised before the trial court, unless the jurisdiction of the court is implicated or the matter concerns an issue of great public importance. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Neither situation exists here.

Moreover, the Ordinance was adopted on February 5, 2005, at a public meeting where the public was afforded an opportunity to comment on the proposed ordinance in advance of its adoption. No public comments were offered and the Ordinance was unanimously approved by roll call vote. Plaintiff's challenge to the validity of the ordinance four years later is grossly out of time. See R. 4:69-6(a) (providing that "[n]o action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing or relief claimed.").

Finally, even if we were to assume the Planning Board never submitted a consistency report in response to the proposed Ordinance, the result would have been that the Township could adopt the ordinance without the necessity to respond to the Planning Board. See N.J.S.A. 40:55D-26(a) (providing that failure of a planning board to transmit a consistency report relieves the governing body of the requirement to disapprove the

planning board's recommendation with a majority vote accompanied by reasons duly recorded in the minutes).

II.

Next, plaintiff urges that the Ordinance is contrary to the MLUL because it usurps zoning authority the Legislature has expressly conferred upon municipalities. Plaintiff's planning expert, Peter G. Steck, testified that a land use plan, such as exists under the Ordinance, consisting of zoning lines which did not coincide with lot lines or the center lines of the streets, was palpably unreasonable. He acknowledged, however, that forty-three municipalities in New Jersey have similar split zoning ordinances. Steck also opined that the Ordinance contravenes the MLUL because it places the zoning authority delegated to planning boards into the hands of individual property owners. He offered hypothetical situations to illustrate this point, none of which, as Judge Grasso observed, related to any actual land use patterns in the Township. Finally, he posited that the Ordinance could result in re-zoning of thousands of acres, but testified he was unaware of any lots in the Township that were as large as 1000 acres.

While finding this testimony interesting, Judge Grasso concluded it was not helpful to resolving whether plaintiff had satisfied her burden of overcoming the presumption of validity

attached to the Ordinance. He specifically noted that the hypothetical scenarios posited by Steck did not relate to the Ordinance, nor to any specific properties in the Township.

Municipal zoning ordinances enjoy a presumption of validity. Rumson Estates, Inc. v. Mayor & Council of Fair Haven, 177 N.J. 338, 350 (2003); Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 380 (1995); Zilinsky v. Bd. of Adj. of Verona, 105 N.J. 363, 368 (1987). This presumption may be overcome by proof that the ordinance is arbitrary, unreasonable or capricious, or plainly contrary to fundamental principles of zoning or the zoning statute. Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 289-90 (2001); Riggs v. Long Beach, 109 N.J. 607, 611 (1988); Bow & Arrow Manor, Inc. v. Town of West Orange, 63 N.J. 335, 343 (1973). "This showing may be made with respect to the facial validity of a zoning ordinance or its application to particular property." Bailes v. Twp. of East Brunswick, 380 N.J. Super. 336, 348 (App. Div.) (citations omitted), certif. denied, 185 N.J. 596 (2005).

A zoning ordinance must generally meet four criteria: (1) it must advance one of the purposes of the MLUL delineated in N.J.S.A. 40:55D-2; (2) it must be substantially consistent with the land use element and the housing element of the master plan; (3) it must comport with constitutional constraints on the

zoning power, including those pertaining to due process, equal protection and the prohibition against confiscation; and (4) the municipality must follow the prescribed procedures for adopting the ordinance. Riggs, supra, 109 N.J. at 611-12.

Further, "an ordinance that may operate reasonably in some circumstances and unreasonably in others is not void in toto, but is enforceable except where in the particular circumstances its operation would be unreasonable and oppressive." Harvard Enters., Inc. v. Bd. of Adjustment of Madison, 56 N.J. 362, 368 (1970). In order to determine whether an ordinance is enforceable when applied to a particular property, it is necessary to determine whether the ends sought to be accomplished by the ordinance justify the restrictions placed on the property and whether the means used to attain the ends are reasonably related to those ends. Pheasant Bridge, supra, 169 N.J. at 293 (citing Home Builders League v. Berlin, 81 N.J. 127, 138 (1979)). In evaluating that question, primary importance is placed on the "reasonableness" of the municipality's chosen means to accomplish an otherwise valid end. Id. at 290, 294.

Reviewed under these principles, Ordinance 2005-002 satisfies the criteria for validity set forth in Riggs, supra, 109 N.J. at 611-12. It advances the purposes of the MLUL because it allows for the provision of sufficient space in

appropriate locations for a variety of uses, N.J.S.A. 40:55D-2(g), and it lessens the cost of development and encourages the more efficient use of land, N.J.S.A. 40:55D-2(m). It is substantially consistent with the Township's Master Plan, which provides for commercial development along the Route 9 corridor. It comports with constitutional constraints on the zoning power and is not confiscatory. In fact, it empowers the property owner to obtain the best and most efficient use of his or her land.

Moreover, Ordinance 2005-002 satisfies the reasonableness test applied in Pheasant Bridge, supra, 169 N.J. at 290-94. It was adopted to address the hardship imposed on owners of split-zoned lots. Relief from this hardship is a valid public purpose and the means used by Ordinance 2005-002 is reasonably related to that end. Under the circumstances presented here, adjoining property owners are not unduly burdened by application of the ordinance because the portion of Lot 13.01 that was zoned residential will not be developed. Under the proposed plan, the land will remain in its natural state and be deed-restricted against future development. Finally, there are no procedural irregularities associated with the adoption of the Ordinance, which, if timely raised, would have provided a basis to invalidate the Ordinance.

In sum, Ordinance 2005-002 is not arbitrary, unreasonable or capricious, nor is it plainly contrary to fundamental principles of zoning or the MLUL. Because plaintiff failed to overcome the presumption of validity that attaches to the ordinance, Judge Grasso properly dismissed the first five counts of plaintiff's complaint.

III.

Plaintiff additionally argues the court erred in failing to address the negative impact Wal-Mart's proposal would have on adjacent property owners. Relying upon Kinderkamack Road Assocs., L.L.C. v. Mayor & Council of Oradell, 421 N.J. Super. 8 (App. Div. 2011), plaintiff contends the portion of the property that is in the residential zone would assume a commercial character if used as the site of a 100-foot buffer Wal-Mart would be required, by ordinance, to construct. Judge Grasso rejected plaintiff's argument based on Kinderkamack, finding that the situation here is distinguishable because the Wal-Mart property involves a single, split-zoned lot rather than adjoining lots; Ordinance 2005-002 obviates the need for variance relief; and all setback requirements are satisfied.

Because we conclude the Ordinance is valid and does not contravene the MLUL, we need not address this claim. Under the

Ordinance, the entire lot is treated as commercial, obviating the need for variance relief.

Affirmed.

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