UNION LAKE SUPERMARKET LLC v. CITY OF MILLVILLE ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

UNION LAKE SUPERMARKET, LLC,

Plaintiff-Appellant/

Cross-Respondent,

v.

CITY OF MILLVILLE ZONING

BOARD OF ADJUSTMENT and

ACP CUMBERLAND ASSOCIATES, LLP,

Defendants-Respondents,

and

WAL-MART STORES, INC.,

Defendant-Respondent/

Cross-Appellant.

________________________________________________________________

September 10, 2014

Argued March 19, 2014 Decided

Before Judges Sapp-Peterson, Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-1050-11.

Ronald S. Gasiorowski argued the cause for appellant/cross-respondent (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, on the briefs).

Stephen R. Nehmad argued the cause for respondent/cross-appellant (Nehmad Perillo & Davis, P.C., and Pamela Marple (Chadbourne & Parke, LLP) of the New York Bar, admitted pro hac vice, attorneys; Mr. Nehmad and Elias T. Manos, on the briefs).

Nathan Van Embden argued the cause for respondent City of Millville Zoning Board of Adjustment.

Hyland Levin LLP, attorneys for respondent ACP Cumberland Associates, LLP (William F. Hyland, Jr., on the brief).

PER CURIAM

Plaintiff Union Lake Supermarket, LLC, representing the interests of ShopRite Supermarkets (plaintiff), appeals from a Law Division order dismissing its action in lieu of prerogative writs, which challenged the decision by defendant City of Millville Zoning Board of Adjustment (the Board) granting preliminary and final site plan approval to defendant Wal-Mart Stores, Inc. (Wal-Mart). We affirm, substantially for the reasons set forth by Judge Georgia M. Curio in her February 1, 2013 oral opinion.

Wal-Mart is part of the Cumberland Crossing Shopping Center (Shopping Center), which is located at the southeast corner of Route 55 and Route 47 in Millville. The Shopping Center property consists of 31.6 acres located in the B-4 Zone (Business Zone) on the Municipal Tax Map of Millville, and 4.32 acres located in the I-3 Zone (Industrial Zone) of the City of Vineland. Shopping centers are a permitted conditional use in the Business Zone. Wal-Mart consists of 11.7 acres of the Shopping Center property.

The Millville Zoning Board originally granted preliminary and final site plan approval for the Shopping Center the in 1991 and 1992. The approval included a conditional use permit and variances from the conditional use requirements. The Shopping Center, incorporating the Wal-Mart store, was built shortly thereafter.

Wal-Mart filed the instant application to the Board seeking preliminary and final site plan approval, and a conditional use permit to expand its existing retail store. The application also sought conditional use variances for reduced perimeter buffers and landscaping in the parking lot. Wal-Mart also requested design waivers and relief from the bulk requirements for the number of loading docks and the building's mounted signage.

The Board conducted public hearings over four days in 2011 to consider Wal-Mart's application. ShopRite, a competing grocery store located across the street from the Shopping Center and the only objector to the application, participated in the hearings. During the hearings, each side presented several witnesses, including experts who rendered conflicting opinions regarding the impact of the proposed expansion. Wal-Mart presented testimony from its engineer, architect, planner, and traffic engineer with respect to the existing condition of the property and the requested variance relief. The traffic engineer testified as to the ingress, egress and on-site traffic circulation plan, which involved the continued use of two access points. Plaintiff's counsel cross-examined all of these professionals. A Wal-Mart representative testified with regard to operational matters, including the number of required loading docks and the need for additional employees.

Plaintiff presented testimony from a traffic engineer and a professional engineer/community planning consultant. Plaintiff raised several challenges to the application. Notably, it questioned the traffic flow into and throughout the Shopping Center, as well as Wal-Mart's failure to address the use of the Joe Canale's Liquor Store driveway located off Route 47, as access to the Shopping Center. Plaintiff also presented testimony that the Cumberland Recycling Center, located in the Industrial Zone adjacent to Wal-Mart, was a non-conforming use in the Business Zone, and the use of the Recycling Center's access road by Wal-Mart created a "dual mixed use," which rendered the Shopping Center site non-conforming, thereby necessitating a use variance. Plaintiff asserted that Wal-Mart's application, as presented, did not qualify for a conditional use because its site, consisting of only 11.7 acres of the entire Shopping Center property, constituted insufficient land mass under the municipal zoning ordinance.

At the conclusion of the hearings, the Board unanimously approved the application, finding that, based upon credible evidence presented, site plan approval and the requested variances were warranted under the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -136, and local ordinances. The Board memorialized its decision in Resolution No. 12-2011, on October 6, 2011.1

The Board made detailed factual findings and conclusions. It credited Wal-Mart's professional witnesses and adopted their opinions and conclusions. It found plaintiff's witnesses lacked credibility, and rejected all of its objections. The Board specifically rejected the need for variance relief for a third access road near Joe Canale's Liquor Store, and for a use variance related to the access road adjacent to the Cumberland Recycling Center.

Plaintiff filed this prerogative writ action seeking to overturn the Board's approval. Wal-Mart filed a motion alleging Union Lake lacked standing to challenge its application, which Judge Curio denied. In rendering her decision, Judge Curio thoroughly canvassed the record, giving due deference to the Board's credibility findings, while accurately applying the legal principles governing the action in lieu of prerogative writs. She ultimately dismissed plaintiff's complaint, holding the Board's findings and conclusions were supported by the evidence, were in conformity with controlling legal principles, and were neither arbitrary, capricious, nor unreasonable.

With regard to the Board's decision, the judge stated:

[T]he matters were very thoroughly explored and [ ] the findings of fact that were articulated by the board members, I thought, were quite justified.

In particular, the board in accepting the testimony of the defendants' experts over the testimony of the plaintiff's experts . . . made sense to me and I thought [it] was appropriate . . . . [The Board's] conclusions were well reasoned and appropriate because the testimony was undermined by cross-examination and by subsequent facts that came to light that made it clear that there was misinformation or just wrong statements. And obviously, that affects the overall credibility of the experts. So for the reasons that I [have] stated judgment will be entered in favor of the defendants and against the plaintiff.

These cross-appeals followed in which both parties have substantially raised the same claims presented to the trial judge:

POINT ONE

THE DEFENDANT APPLICANT FAILED TO APPLY FOR OR SUPPORT THE REQUIRED USE VARIANCE FOR THE DUAL MIXED USE FOR A SHOPPING CENTER AND OFF-SITE INDUSTRIAL PROPERTY DRIVEWAY ACCESS, AND THE BOARD FAILED TO ADDRESS OR GRANT THAT USE VARIANCE; CONSEQUENTLY, THE APPLICATION AND APPROVAL IS DEFICIENT AND VOID.

POINT TWO

THE APPLICATION FAILED TO INCLUDE AND ADDRESS THE INTENSIFICATION OF THE USE OF LOTS 20 AND 21 BY INCREASED TRAFFIC AND USE BY TRAFFIC ACCESSING THE EXPANDED SHOPPING CENTER THROUGH THE ACCESS DRIVE/EASEMENT ON LOTS 20 AND 21.

POINT THREE

THE PUBLIC NOTICE FOR THE WAL-MART APPLICATION W[AS] DEFICIENT, AND INVALIDATION IS REQUIRED.

POINT FOUR

THE BOARD ERRED IN ALLOWING THE APPLICANT WAL-MART TO ADDRESS ONLY ITS 11.7 ACRE PORTION OF THE SHOPPING CENTER SITE AND APPROVING THE RENOVATION OF ONLY THIS PORTION WHILE NOT ADDRESSING NON-CONFORMITIES ON AND THE EXPANSION TO THE BALANCE OF THE SITE.

POINT FIVE

THE DETERMINATION OF THE ZONING BOARD --- FAILING TO ADDRESS NEEDED VARIANCES AND RELYING ON SELF-CREATED DIVISION OF THE PROPERTY --- IS ARBITRARY, CAPRICIOUS AND UNREASONABLE. [Consolidated below]

In its cross-appeal, Wal-Mart again argues plaintiff lacked standing to challenge the application, and now the Board's decision.

We review the Board's action using the same standard of review as the trial court. Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). We must determine whether the "board'[s] decision 'is supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion.'" New Brunswick Cellular Tel. Co. v. S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999) (quoting Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998)). The Board's decision must be supported by substantial evidence in the record, Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 33 (2013), not by unsupported allegations or conjecture, Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 88 (2002). The grant or denial of a use variance is committed to the sound discretion of the board because the members have superior knowledge of local conditions and are "best equipped to assess the merits of variance applications." Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 198 (App. Div. 2001).

Having reviewed the record, briefs, and arguments of counsel, and in light of controlling legal standards, we reject the parties' contentions and affirm substantially for the reasons expressed by Judge Curio in her well-reasoned oral decision dated February 1, 2013. R. 2:11-3(e)(1)(A). No basis is presented to disturb her insightful analysis of the issues presented.

Affirmed.

1 The resolution was later modified and re-adopted on November 3, 2011. The modification does not affect this appeal.