JAMES AUBREY v. DEPTFORD TOWNSHIP PLANNING BOARD et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6149-05T56149-05T5

JAMES AUBREY,

Plaintiff-Appellant,

v.

DEPTFORD TOWNSHIP PLANNING BOARD

and AIG BAKER REAL ESTATE, LLC,

Defendants-Respondents.

________________________________________________________________

 

Submitted March 7, 2007 - Decided June 11, 2007

Before Judges Wefing, Parker and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. GLO-L-2124-05.

Baron & Riefberg, attorneys for appellant (Jeffrey M. Brennan, on the brief).

Dembo & Saldutti, attorneys for respondent Deptford Township Planning Board (James W. Burns, on the brief).

Ballard, Spahr, Andrews & Ingersoll, attorneys for respondent AIG Baker Real Estate (William F. Hyland, Jr. and Eugene J. Kuzinski, on the brief).

PER CURIAM

Plaintiff James Aubrey appeals from an order entered on June 29, 2006 granting summary judgment in favor of defendants, dismissing the complaint in lieu of prerogative writs. We affirm.

Plaintiff is an objector to a commercial development project that was granted preliminary and final site plan approval by defendant Deptford Township Planning Board (Board). In January 2004, defendant AIG Baker Real Estate, LLC (AIG) made an application to the Board for preliminary and final site plan approval "for a number of retail uses together with site improvements," which included "two major anchor stores, four large retail spaces, smaller shops, pad sites, and a gas station." The proposed project was to be built on property located in a Business Commercial Two Zone, as designated in the Unified Development Ordinance of Deptford Township (UDO). The zone permits "(1) shopping centers, when part of a planned commercial development; (2) garden centers; and (3) automobile service stations, including facilities for the retail sale of gasoline." The initial application required some variances and waivers in order to comply with the UDO. After hearings, which included strong opposition voiced by the public, the Board denied the application on June 9, 2004.

In August 2004, AIG submitted a revised plan that conformed to the ordinance after removing the features that required variances and design waivers. The Board held several hearings, during which the public again expressed strong opposition to the project, particularly with respect to reports that Wal-Mart would be one of the anchor tenants. While the revised application was pending, the Deptford Township Council adopted two ordinances to exclude or regulate certain uses: Ordinance 0.16.04, which directly affected the pending site plan application, and 0.17.04, which regulated hours of operation for selected businesses within the township. After a public hearing on October 6, 2004, the Board again denied the application, this time applying the newly-adopted ordinances.

On October 25, 2004, AIG filed a complaint in Superior Court contesting the two newly-adopted ordinances on procedural and substantive grounds, alleging that they were unconstitutional. The Board removed the case to the Federal District Court on the ground that the complaint included federal civil rights claims under 42 U.S.C. 1983. AIG moved for partial summary judgment and, on July 28, 2005, Freda L. Wolfson, U.S.D.J., found that the two ordinances adopted during the pendency of AIG's application were unconstitutional and could not be applied to the application. She found further that the application fully conformed to the Township's prior ordinances. Nevertheless, she declined to approve the site plan and remanded it to the Board for completion of public comment and a final decision, thereby allowing the Board to make its final decision based upon the entire record, including any additional evidence presented. The Board subsequently approved the application on September 21, 2005, and adopted a resolution memorializing the approval on November 9, 2005.

On December 23, 2005, plaintiff filed a complaint in lieu of prerogative writs against AIG and the Board seeking to void the preliminary and final site plan approval. On June 29, 2006, the trial court granted summary judgment in favor of defendants dismissing the complaint. The court's letter opinion provides a detailed finding of facts and analysis of the issues, concluding that plaintiff had not met his burden of proving that the Board's decision was arbitrary, capricious or unreasonable. Although the court found that it was bound by Judge Wolfson's findings of fact and conclusions of law under the doctrine of collateral estoppel, it determined that "even if the decision of Judge Wolfson is given no weight by this [c]ourt, the same decision results."

In this appeal, plaintiff argues:

POINT ONE

THE TRIAL COURT COMMITTED ERROR BY UTILIZING THE "ARBITRARY, CAPRICIOUS AND UNREASONABLE" STANDARD TO ANALYZE THE PURELY LEGAL ISSUE OF WHETHER THE IMPROVEMENTS PROPOSED BY AIG BAKER CONSTITUTE A "SHOPPING CENTER" AS DEFINED BY DEPTFORD'S UNIFIED DEVELOPMENT ORDINANCE.

POINT TWO

THE TRIAL COURT COMMITTED ERROR BY HOLDING THAT THE DOCTRINE OF COLLATERAL ESTOPPEL APPLIED TO ANY ASPECT OF THIS CASE.

POINT THREE

THE TRIAL COURT COMMITTED ERROR BY UPHOLDING THE PLANNING BOARD'S DETERMINATION THAT NO VARIANCES WERE REQUIRED FOR AIG BAKER'S SITE PLAN.

A. AIG Baker's Site Plan Required a Variance for Parking Spaces.

B. AIG Baker's Site Plan Required a Variance for Loading Spaces.

POINT FOUR

THE COURT SHOULD VOID THE PRELIMINARY AND FINAL SITE PLAN APPROVAL GRANTED TO DEFENDANT AIG BAKER REAL ESTATE, LLC BY DEFENDANT DEPTFORD TOWNSHIP PLANNING BOARD BECAUSE DEFENDANT AIG BAKER REAL ESTATE, LLC FAILED TO SECURE THE NECESSARY WAIVERS FOR THE DEVELOPMENT.

Plaintiff argued before the trial court that the deferential standard of review should be applied, and that the Board's approval of the application was arbitrary, capricious, unreasonable and contrary to law. Plaintiff now contends that the de novo standard of review should be applied. Defendants respond that plaintiff cannot now argue contrary to his position before the trial court, and that issues not raised before the trial court are ordinarily not reviewable on appeal. State v. Arthur, 184 N.J. 307, 327 (2005). When such issues involve a substantial public interest, however, we will consider them. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); Pressler, Current N.J. Court Rules, comment 2 on R. 2:6-2.

The deferential standard applies to factual issues. "[F]actual determinations by [a] board are presumed to be valid, and its exercise of authority based on those facts is sustainable absent a showing that the board's actions [were] arbitrary, capricious or unreasonable." Adams v. DelMonte, 309 N.J. Super. 572, 583 (App. Div. 1998) (citing Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990). Deference is given to planning boards' factual findings because "local citizens familiar with a community's characteristics and interests are best equipped to assess the merits of applications." Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 198 (App. Div. 2001); see also Scully-Bozarth Post 1817 of the VFW v. Planning Bd., 362 N.J. Super. 296, 314 (App. Div.), certif. denied, 178 N.J. 34 (2003).

The standard of review differs, however, when the issue is one of ordinance interpretation because that "is a judicial function." Adams, supra, 309 N.J. Super. at 583. Legal questions are, therefore, reviewed under a de novo standard. Ibid. Nevertheless, because of a municipality's "'knowledge of local conditions,'" we generally defer "'to a municipality's informal interpretation of its ordinances.'" Fallone Props. LLC v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004) (quoting DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super. 161, 174 (App. Div.), certif. denied, 181 N.J. 544 (2004) and Burbridge, supra, 117 N.J. at 385.

Plaintiff argues that we should review the matter under a de novo standard because the key question is whether AIG's site plan application qualifies as a "shopping center" under the UDO. A "shopping center" is defined in the UDO as:

A group of commercial establishments planned, constructed and managed as a total entity and which include on-site customer and employee parking, loading areas, common design features, and semi-enclosed or enclosed customer walkways adjacent to the establishments. For the purposes of this ordinance, shopping centers shall contain a minimum of 100,000 square feet of gross leaseable area.

[Deptford Twp., N.J., Unified Dev. Ordinance art. II 6 (2004).]

Plaintiff maintains that AIG failed to present evidence that the project will be "managed as a total entity," or that "semi-enclosed or enclosed customer walkways [will be] adjacent to the establishments." Plaintiff has not provided us with transcripts from the Board hearings, however, in order for us to determine whether his contentions are accurate. In reviewing the resolutions included in the record it appears that the applicant presented sufficient information for the Board to determine that the application fell within the definition of a "shopping center" under the UDO. In the absence of evidence to the contrary, we defer to the Board's interpretation of the UDO. Fallone, supra, 369 N.J. Super. at 561. We find nothing in the record before us to indicate that the Board acted arbitrarily, capriciously or unreasonably in finding that the application conformed to the definition of a "shopping center" and required no waivers or variances. See Adams, supra, 309 N.J. Super. at 583.

Plaintiff next argues that the trial court erred in applying the doctrine of collateral estoppel to the issues litigated in the federal court. For collateral estoppel to apply, the party asserting the doctrine must demonstrate that

"(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding."

[Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006) (quoting In re Estate of Dawson, 136 N.J. 1, 20-21 (1994)).]

Collateral estoppel provides parties with "'finality and repose; prevention of needless litigation; avoidance of duplication; reduction of unnecessary burdens of time and expenses; elimination of conflicts, confusion and uncertainty; and basic fairness.'" Id. at 522 (quoting Hennessey v. Winslow Twp., 183 N.J. 593, 599-600 (2005)) (finding that the application of collateral estoppel was inappropriate where procedural safeguards were absent from the prior proceeding). The equitable doctrine, however, "'will not be applied when it is unfair to do so.'" Id. at 521-22 (quoting Pace v. Kuchinsky, 347 N.J. Super. 202, 215 (App. Div. 2002)).

Here, plaintiff contends that the trial court erred in its application of collateral estoppel for two reasons: (1) the issues raised here differ from those litigated in the federal court; and (2) plaintiff was not a party or in privity with a party in the federal proceedings. Because plaintiff has not provided us with a record of the federal proceedings, we have no basis upon which to conclude that the trial court was incorrect in its determination that the federal decision was entitled to collateral estoppel. We agree with the trial court, however, in "that even if the decision of Judge Wolfson is given no weight by this Court, the same decision results."

With respect to plaintiff's final arguments, that the trial court erred in determining that no variances or waivers were required, we have previously noted that the Board correctly determined this issue. We find no merit in plaintiff's argument regarding variances and waivers. R. 2:11-3(e)(1)(E).

We have carefully considered all of plaintiff's arguments in light of the record presented to us and the applicable law. We are satisfied that the trial court properly applied the deferential standard of review in determining that the Board was not arbitrary, capricious or unreasonable in approving the application. We note that even if the de novo standard were applied, the application conforms to the definition of a "shopping center" and did not require any variances or waivers. Accordingly, we affirm the decision of the trial court substantially for the reasons stated by Judge Walter L. Marshall in his letter opinion dated June 29, 2006.

Affirmed.

 

Plaintiff has provided a brief excerpt of his expert's testimony before the Board during which the expert testified that the application did not conform to the UDO definition of a "shopping center." We have not been provided with the expert's complete testimony, however, and cannot, therefore, consider it in this appeal. R. 2:5-3(b) and (c).

(continued)

(continued)

10

A-6149-05T5

June 11, 2007