QUICK CHEK CORPORATION v. HOWELL TOWNSHIP ZONING BOARD OF ADJUSTMENT

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

QUICK CHEK CORPORATION,

Plaintiff,

v.

HOWELL TOWNSHIP ZONING

BOARD OF ADJUSTMENT,

Defendant,

and

NEW HORIZON PROPERTY II, LLC,

Defendant/Intervenor.

_____________________________________

NEW HORIZON PROPERTY II, LLC,

Plaintiff-Appellant

v.

TOWNSHIP COUNCIL OF THE TOWNSHIP

OF HOWELL,

Defendant-Respondent,

and

QUICK CHEK CORPORATION,

Defendant/Intervenor-Respondent.

_____________________________________

November 7, 2014

 

Argued April 2, 2014 Decided

Before Judges Grall, Nugent and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. L-4667-11 and L-0084-12.

R.S. Gasiorowski argued the cause for appellant (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, on the briefs).

Thomas G. Gannon argued the cause for respondent Township Council of the Township of Howell (Hiering, Gannon & McKenna, attorneys; Mr. Gannon, on the brief).

Henry L. Kent-Smith argued the cause for respondent, Quick Chek Corporation (Fox Rothschild LLP, attorneys; Mr. Kent-Smith and Irina B. Elgart, of counsel and on the brief).

The opinion of the court was delivered by

NUGENT, J.A.D.

For several years, Quick Chek Corporation, the contract purchaser of a corner lot at Colts Neck Road and Route 33 in the Township of Howell (Township), has been attempting to obtain development approvals to operate a gasoline station and convenience center on the property. For approximately the same time, New Horizon Property II, LLC, the owner of a corner lot across Route 33, and its lessee, 19 Petroleum, Inc., which operates a gasoline station and convenience center, have attempted to prevent Quick Chek from obtaining development approvals.

In this, the first of back-to-back appeals we decide today, New Horizon appeals from a judgment that dismissed its prerogative writs challenge to Township Council's adoption of an amendment to the zoning ordinance. The amendment authorizes operation of a service station and convenience center as a conditional use in the Township's three "Highway Development" (HD) zones. New Horizon argues that the trial court erroneously entered judgment under Rule 4:40-1, which authorizes the entry of judgment at the close of a party's proofs at trial, because New Horizon's evidence established three reasons the ordinance was invalid: first, the governing body did not provide proper notice of the ordinance; second, the ordinance was inconsistent with the Township's master plan and was not accompanied by an explanatory resolution; third, the adoption of the ordinance constituted illegal spot zoning. Having considered New Horizon's arguments in light of the record and controlling law, we reject them and affirm the judgment dismissing the complaint.

I.

New Horizon owns a corner lot at the intersection of Route 33 and Colts Neck Road in the Township of Howell. In September 2000, New Horizon's lessee, 19 Petroleum, applied for and received from the Howell Township Zoning Board of Adjustment (Zoning Board) variances and preliminary and final site plan approval "to renovate an existing service station into a convenience store/retail use, replace fuel pumps, and construct a canopy, with additional site improvements[.]" In granting the variance, the Zoning Board found that the proposed use was "particularly fitted to the particular location for which the variance is sought. The expansion of the non-conforming use . . . represent[ed] a significant enhancement in the site as it [] improve[d] safety and esthetics while creating a more viable use for this property."

On the same side of Colts Neck Road as New Horizon's property, but across Highway 33, is the lot Quick Chek seeks to develop as a gasoline station and convenience center (the Quick Chek property)1. The owner of that lot had previously operated it as a tree nursery. The Quick Chek property is located in a zone classified as HD.

In 2010, a decade after New Horizon's tenant had obtained its variance, Quick Chek applied to the Zoning Board for variances that would permit it to develop a gasoline station and convenience center on the Quick Chek property. New Horizon appeared as an objector to the Quick Chek application. Quick Chek needed the variances because its property was in an HD-3 district, which did not include a gasoline station and convenience center as a permitted, accessory, or conditional use. Following a hearing, Quick Chek did not receive from the Zoning Board members the votes needed to approve its application.

Quick Chek filed a complaint in lieu of prerogative writs on October 6, 2011, challenging the Zoning Board's decision. New Horizon intervened. A month later, in November 2011, at the Township's request, professional planner Fred Heyer "reviewed the feasibility of incorporating a gasoline station and convenience center into the Township's zoning code as either principal permitted uses or conditional uses." On November 21, 2011, Heyer recommended the Township Council "consider creation of zoning for gasoline stations and convenience centers [because] [t]he use has become commonplace and there are several already in existence in the Township."

During the fall of 2011, the Township was also preparing its Land Use Element Amendment to the master plan. This amendment was twice revised between September 23, 2011 and December 1, 2011 when it was adopted. In the Land Use Element Amendment, Jeffrey J. Janota, P.P., A.I.C.P., explained that the properties with frontage along Route 9 are mostly located within HD-1, while properties with frontage on Route 33 are in HD-2 and HD-3, as well as another zone unrelated to this case.

Janota recommended that "the Township analyze the history of use variance[s] granted and denied by the [Zoning] Board . . . in these zones over the past several years in order to determine any development of use trends that should be given consideration." He pointed out that since 2003, there had been thirty-three use variance and "zoning interpretation" requests for properties along Routes 9 and 33. Based on a new county wastewater management plan, the existing commercial development on Route 9, "the development of surrounding communities," and "the continued transition of Route 33 from a low volume roadway to a connector road," Janota concluded that "commercial uses in these corridors have become more viable." Janota recommended that the Township "look to incorporate additional commercial and retail uses along these corridors[,] specifically within the highway commercial districts, where appropriately supported by infrastructure."

Janota further recommended a "coordinated growth strategy[,]" including exploration of new land uses and a "corridor study to focus on the zoning of these corridors," which would analyze several different issues, including environmental impacts and the potential creation of new zones.

The Township Council introduced Ordinance 0-11-47 at the November 22, 2011 meeting. The ordinance amended the Township's land use ordinance "to include a gasoline station and convenience center as a conditional use and to permit the gasoline station and convenience center as a conditional use in the HD-1, HD-2 and HD-3 zones . . . [and] to allow [a] gasoline station and convenience center as a second principal building on [the] same lot." In the ordinance's final, adopted form, it added "GAS STATION AND CONVENIENCE CENTER" to 188-4, the definitions provision of the Township's land use ordinance. The ordinance also amended 188-56 of the land use ordinance, which prohibited more than one principal building per lot, with enumerated exceptions "for related compatible buildings constituting one basic use or operation under one management." Ordinance 0-11-47 added "[g]asoline [s]tation and [c]onvenience [c]enter" as an exception to the prohibition.

Ordinance 0-11-47 also added 188-98.4 to the land use ordinance. This new section placed limitations on the gasoline station and convenience center as a conditional use. It restricted the location of gasoline stations and convenience centers to corner lots "fronting on a state highway and with direct vehicular access from both the highway and the intersecting street."

The Township Council referred Ordinance 0-11-47 to the Howell Township and Monmouth County Planning Boards for comments and recommendations. The Monmouth County Planning Board confirmed it received a copy of the ordinance on November 29, 2011. A notice regarding the ordinance was also published in the Asbury Park Press on November 26, 2011. Notice was also sent to surrounding townships.

On December 1, 2011, the Howell Township Planning Board (Planning Board) held a public hearing on Ordinance 0-11-47. The Planning Board's attorney introduced the ordinance, summarized it for the Planning Board members, and recommended some minor language changes that were ultimately incorporated into the final, adopted version of the ordinance. He told the Planning Board that the zones the ordinance addressed, zones HD-1, HD-2, and HD-3, "should be fresh in the memory of the Board members, [since] we just adopted the portion of the land use element [that] does recommend this use out in the highway zone. So it is obviously consistent with the master plan." The Planning Board voted unanimously to approve Ordinance 0-11-47 as consistent with the master plan.

On December 8, 2011, the Planning Board's attorney notified the Township by mail that the Planning Board had approved Ordinance 0-11-47 as consistent with the master plan, and recommended two minor revisions. The Township Council then held a public hearing on December 13, 2011, to hear opposition and commentary.

The Township Council adopted the ordinance by a three to one vote, with one member abstaining. New Horizon challenged the Township Council's action by filing a complaint in lieu of prerogative writs. Quick Chek intervened. The trial court consolidated Quick Chek's prerogative writs action against the Zoning Board and New Horizon's action against Township Council, but later decided that it would try New Horizon's action first, because if it determined that the ordinance was valid, then there would be no need to hear Quick Chek's action against the Zoning Board. In fact, after the Township adopted Ordinance 0-11-47, Quick Chek filed a development application with the Planning Board to obtain site plan approval for a gas station and convenience center.

The parties introduced forty-one joint exhibits at the trial of New Horizon's prerogative writs action challenging Ordinance 0-11-47. The sole witness to testify was P. David Zimmerman, a licensed professional planner who served as New Horizon's expert. Zimmerman's testimony underpins New Horizon's three appellate arguments: that Township Council did not provide proper notice of its intention to adopt Ordinance 0-11-47, the ordinance was inconsistent with the Township's master plan and unaccompanied by an explanatory resolution, and the adoption of the ordinance constituted spot zoning.

Zimmerman did not dispute that when adopting Ordinance 0-11-47, the Township complied with the statutory notice requirements that apply to the adoption of municipal ordinances. Rather, in his opinion, the Township was required to comply with special notice requirements of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. Specifically, Zimmerman opined that the Township was required to comply with N.J.S.A. 40:55D-62.1, which requires notice to all owners within a zoning district, and all owners within two hundred feet in all directions of the boundaries of the district, "of a hearing on an amendment to the zoning ordinance proposing a change to the classification . . . of a zoning district . . . ." According to Zimmerman, Ordinance 0-11-47 changed the classification of the HD-3 zone within the meaning of N.J.S.A. 40:55D-62.1.

Zimmerman explained that before the ordinance was adopted, the "classification of uses" in HD-3 "did not permit a gasoline station, did not permit a convenience center, either as a permitted use or a conditional use." Ordinance 0-11-47 allowed a gas station and convenience center as a conditional use in HD-3. There was no description of a combination gas station and convenience store in the Township's land use ordinance before the adoption of Ordinance 0-11-47. In fact, a gas station by itself was a conditional use, as auto services, and only in HD-1. A combination gas station and convenience store would not have been a permitted or conditional use even in HD-1.

Although conceding that the word "classification" was not defined in the MLUL, Zimmerman explained that, to a professional planner, "a classification refers to the use or uses permitted in a zoned district." He described Ordinance 0-11-47 as "exemplary of what . . . would be considered a change in the classification," because it would be adding a new use to the HD-3 zone that was not permitted before. In Zimmerman's view, "this is a new classification in this zone district." In fact, Zimmerman opined that a governing body could not pass a zoning amendment without complying with N.J.S.A. 40:55D-62.1, although he later clarified, on cross-examination, that that it was only changes in classification that would necessitate the notice requirements of N.J.S.A. 40:55D-62.1. He concluded that Ordinance 0-11-47 was not validly adopted.

Zimmerman next testified that notwithstanding the Planning Board resolution that Ordinance 0-11-44 complied with the Township's master plan, the ordinance did not comply with the master plan. He explained that the Township's HD-1 zone was, for the most part, located along Route 9, whereas the HD-3 was located along Route 33. Before Township Council adopted ordinance 0-11-47, a gasoline station and convenience center was not a permitted use in the H-3 zone in which Quick Chek's property was located. Comparing Route 9 with Route 33, Zimmerman noted that Route 9 was mostly a four-lane highway through the Township with a median and extensive commercial development on properties fronting on the highway. In contrast, Route 33 is a two-lane road that runs through rural areas, suburban in spots, and is called a "connector" or "collector" type of road. Gasoline stations were common place on Route 9 and there already existed two combination gasoline service stations and convenience stores along Route 9 in the Township.

According to Zimmerman, the Zoning Board's resolution denying Quick Chek's first development application reflected a finding that Quick Chek's proposed development would "substantially impair the zone plan and ordinance." Zimmerman interpreted the "zone plan" to mean the master plan. Without objection, Zimmerman testified that "in my opinion, [the Zoning Board was] saying that [the variance] will substantially impair the zone plan or the master plan and the zoning ordinance."

Zimmerman pointed out that the Howell Township Land Use Element Amendment prepared in September 2011, revised in October and November, and adopted December 1, 2011, recommended, among other things, that the Township prepare a corridor study on the zoning of the Route 33 and Route 9 corridors. Zimmerman found no evidence that such studies had been performed. The Land Use Element and Ordinance 0-11-47 were adopted within a relatively short period of time.

Zimmerman next explained that when the Township Council referred the ordinance to the Planning Board, the Planning Board did not actually make an independent determination that the ordinance was "substantially consistent with the municipal master plan," as reported in a letter from the Planning Board to the Council. Rather, after the Planning Board's solicitor framed the issue, outlined the Planning Board's task, and stated that the Planning Board members had "just adopted a portion of the land use element, which does recommend this use," the Planning Board simply voted on the issue. Contrary to the solicitor's statement, and despite several re-examinations of the municipal master plan over the years as well as the amendment to the land use element of the master plan in 2011, none of those documents recommended a gas station or dual use on any property located in the HD-3 zone. Zimmerman had examined documents "going back to 1994." Ordinance 0-11-47, according to Zimmerman, was not consistent with the master plan in 1994 and was not consistent with the land use element of the master plan as amended in 2011.

Zimmerman lastly concluded that Ordinance 0-11-47 constituted spot zoning. While conceding that the ordinance applied to over 500 properties in the Township, Zimmerman opined that the ordinance was nevertheless spot zoning because it "allow[s] a piece of property across the street from [his] client's property, which is a small parcel of land, . . . [to be] singled out by this ordinance for the special treatment of being allowed to develop as a combined service station and convenience store." Although Ordinance 0-11-47 theoretically applied to all properties in the three HD zones, in practice, it would not apply to any properties along Route 33. Not counting New Horizon's existing gas station and convenience store, an existing WaWa, and Quick Chek's property, Zimmerman opined that

there are no intersections that . . . would qualify and meet the standards of the new ordinance for a conditional convenience store/service station use; that is, there are very few intersections in that corridor to begin with, and those that exist and don't have service stations already are occupied by other uses.

Zimmerman further explained that Ordinance 0-11-47 restricted the location of gas stations and convenience centers to corner lots "fronting on a state highway and with direct vehicular access from both the highway and the intersecting street." Because of this restriction, with the exception of New Horizon's property and Quick Chek's property, there were no other properties specifically in the HD-3 zone that could be developed for a gas station and convenience center use. There were two intersections along Route 33 in the HD-2 zone and one along Route 33 in the HD-3 zone. Zimmerman confirmed that "the majority of those intersections on all four corners is developed[.]"

Following Zimmerman's testimony, New Horizon rested its case and Quick Chek moved for the entry of judgment pursuant to Rule 4:40-1. The court granted the motion. New Horizon appealed.

II.

New Horizon contends that the trial court misapplied Rule 4:40-1 by failing both to accept Zimmerman's unrefuted testimony as true and to give New Horizon the benefit of reasonable inferences that could be deduced from the expert's testimony and documentary evidence. Instead, the court resolved certain issues in favor of the Township when it rejected Zimmerman's opinions that the Township had not complied with the MLUL notice requirements, that Ordinance 0-11-47 was inconsistent with the Master Plan, and that the ordinance constituted spot zoning. We disagree.

Rule 4:40-1 authorizes a court to enter judgment on a party's motion "either at the close of all the evidence or at the close of the evidence offered by an opponent." We review a trial court's order entered under Rule 4:40-1 de novo. Boyle v. Ford Motor Co., 399 N.J. Super. 18, 40 (App. Div.), certif. denied, 196 N.J. 597 (2008). We apply the same standard that governs trial courts, Frugis v. Bracigliano, 177 N.J. 250, 269 (2003), that is, "[a]s in a summary judgment motion, we must determine 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Ibid. (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). In applying that test, we "accept[] as true all the evidence which supports the position of the party defending against the motion and accord [that party] the benefit of all inferences which can reasonably and legitimately be deduced therefrom[.]" Dolson v. Anastasia, 55 N.J. 2, 5 (1969).

The standard of review under Rule 4:40-1 requires the court to accept as true the evidence presented at the hearing which supports the position of the party defending against the motion. The evidence and the inferences deducible from it are distinct from legal presumptions. For example, "[a] zoning ordinance is insulated from attack by a presumption of validity, which may be overcome by a showing that the ordinance is 'clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning or the [zoning] statute.'" Riggs v. Long Beach, 109 N.J. 601, 610-11 (1988) (quoting Bow & Arrow Manor v. Town of West Orange, 63 N.J. 335, 343 (1973)). The party who is attacking the ordinance bears the burden of demonstrating that the ordinance is arbitrary, capricious, or unreasonable. Id. at 611; see also Rumson Estates, Inc. v. Mayor & Council of Fair Haven, 177 N.J. 338, 350-51 (2003). The presumption and that burden are not governed by the standard that applies to our review of the evidence presented by the party opposing the motion.

Moreover, when a zoning ordinance is amended by another ordinance, "the presumption of validity attending the original ordinance must give way to the presumption of the correctness of the amendatory ordinance." Bartlett v. Twp. of Middletown, 51 N.J. Super. 239, 261 (App. Div.), certif. denied, 28 N.J. 37 (1958). See also Rockaway Shoprite Assocs., Inc. v. City of Linden, 424 N.J. Super. 337, 352 (App. Div. 2011) (stating that "amendments to zoning ordinances . . . are considered legislative in nature and enjoy a presumption of validity."), certif. denied, 209 N.J. 233 (2012).

With the foregoing precepts in mind, we turn to New Horizon's three substantive challenges to Ordinance 0-11-47.

A.

New Horizon contends that the court erred by rejecting its argument that Ordinance 0-11-47 enacted a change in the classification of a zoning district because the ordinance defined and added a new use to the Township land use ordinance, added the combined gas station and convenience store as a conditional use in three zones, HD-1, HD-2, and HD-3, and added the combined gas station and convenience store as an exception to the prohibition on multiple principal buildings on a single lot. New Horizon argues that "gasoline stations have always been considered in zoning/planning in New Jersey as a use of its own particular and singular classification and type, because of its unique and significant effects and impact." It asserts that convenience stores are comparable to gas stations, and that the combination of these two uses "represents the introduction of a new and different classification of use into the zone." New Horizon reasons that because the Township changed the classification of a zoning district without complying with the notice provision of N.J.S.A. 40:55D-62.1, Ordinance No. 0-11-47 is invalid as a matter of law.

Preliminarily, we note that Zimmerman's opinion on the meaning of "classification" as used in N.J.S.A. 40:55D-62.1 was entitled to no deference from the trial court, and is entitled to none from us. The interpretation of a statute is a question of law. See Mayflower Sec. v. Bureau of Sec., 64 N.J. 85, 93 (1973) (noting that "an appellate tribunal is . . . in no way bound by [an] agency's interpretation of a statute or its determination of a strictly legal issue"). "It is well-established that '[e]xpert witnesses simply may not render opinions on matters which involve a question of the law.'" Boddy v. Cigna Prop. & Cas. Cos., 334 N.J. Super. 649, 659 (App. Div. 2000) (quoting Healy v. Farleigh Dickinson Univ., 287 N.J. Super. 407, 413 (App. Div.), certif. denied, 145 N.J. 372, cert. denied, 519 U.S. 1007, 117 S. Ct. 510, 136 L. Ed. 2d 399 (1996)).

The relevant statute, N.J.S.A. 40:55D-62.1, provides that

"[n]otice of a hearing on an amendment to the zoning ordinance proposing a change to the classification . . . of a zoning district . . . shall be given at least 10 days prior to the hearing by the municipal clerk to the owners of all real property . . . located in the . . . district and within the State within 200 feet in all directions of the proposed new boundaries of the district . . . ."

The notice provision does not apply to "classification or boundary changes recommended in a periodic general examination of the master plan by the planning board pursuant to N.J.S.A. 40:55D-89.["] Ibid.

We have previously addressed the meaning of the term "classification" in N.J.S.A. 40:55D-62.1

This examination of the MLUL confirms that in its most general sense, classification refers to the use permitted in a zoning district, such as residential, commercial or industrial, as well as sub-categories within the broader uses, such as single-family residential and high-density residential, highway commercial and neighborhood commercial, and highway retail and neighborhood retail. We also encounter uses that may be permitted under certain conditions within a generally designated category. A change in any of these broad categories and sub-categories has the capacity to fundamentally alter the character of a zoning district.

Our research also reveals that the term "classification," at least for purposes of section 62.1 and section 63, has been assumed to include changes to the density, bulk and height standards and conditions applicable to designated uses.

[Robert James Pacilli Homes, L.L.C. v. Twp. of Woolwich, 394 N.J. Super. 319, 330-331 (App. Div. 2007).]

After making the foregoing observations, we noted that "the type of notice to be provided on the occasion of a proposed amendment to a zoning ordinance should focus on the substantive effect of the amendment rather than the appellation given to the zone." Id. at 332.

In Mahwah Realty Assocs., Inc. v. Twp. of Mahwah, 430 N.J. Super. 247 (App. Div. 2013), we explained that "[u]ntil the Legislature adopts some different meaning, we will continue to apply . . . Pacilli's general understanding of the term [classification] as including an ordinance that 'has the capacity to fundamentally alter the character of a zoning district.'" Id. at 254 (quoting Pacilli, supra, 394 N.J. Super. at 331) (footnote omitted).

In Mahwah, one of the zoning ordinances at issue fundamentally altered the character of certain industrial districts because it added "health and wellness center" and "fitness and health club" to the list of permitted uses in two industrial zones, and because the definitions "given by the ordinance to both 'health and wellness center' and to 'fitness and health club' reveal that these proposed uses are clearly discordant from the uses permitted in the affected industrial zoning districts." Ibid. The two industrial zones each allowed numerous uses, but the ordinance at issue would "introduce commercial recreation, medical services, retail sales, and educational facilities into zoning districts designed for manufacturing, trucking and the like." Id. at 255.

The facts set forth in Mahwah are significantly different than the facts in the case before us. In this case, HD-1's permitted and conditional uses prior to the adoption of Ordinance 0-11-47 included offices, financial institutions, medical centers, hospitals, restaurants, drive-thru restaurants, entertainment uses, retail, home improvement centers, houses of worship, schools, auto sales, auto services, auto auctions, car washes, telecommunications facilities, commercial breeders, dog kennels, shelters, pounds, dog training facilities, and pet shops. HD-2's permitted and conditional uses included offices, financial institutions, medical centers, hospitals, restaurants without drive-thru, houses of worship, schools, telecommunications facilities, commercial breeders, dog kennels, shelters, pounds, dog training facilities, and pet shops. HD-3's permitted and conditional uses included offices, financial institutions, medical centers, hospitals, drive-thru restaurants, houses of worship, schools and day-care facilities, telecommunication facilities, commercial breeders, dog kennels, shelters, pounds, dog training facilities, and pet shops.

Adding a combined gas station and convenience store to these uses, which include various retail uses, restaurant uses, and other commercial uses, would not fundamentally alter the character of the district in the way that adding a wellness center or a fitness and health club would fundamentally alter an industrial district. Nor does creating this conditional use dramatically alter density requirements. Ordinance 0-11-47 does add the new gas station and convenience center to the list of exceptions to 188-56, the prohibition on more than one principal building per lot. However, there were already several exceptions to that list. And, by the ordinance's own definition, a gas station and convenience center's location is limited to corner lots "fronting on a state highway and with direct vehicular access from both the highway and the intersecting street." New Horizon's own expert, Zimmerman, opined that this would limit the lots that, in actuality, Ordinance 0-11-47 applied to. Finally, gas stations, as auto services, were already allowed in HD-1 prior to the adoption of Ordinance 0-11-47.

Moreover, as the memorandum from Heyer demonstrated, a combined use of a gas station and convenience store was already in use in the Township. One of those combination gas station and convenience stores is on New Horizon's own property. As the trial court properly concluded, Ordinance 0-11-47 "simply permits a commercial use already in existence in several places in . . . [Howell] Township."

B.

New Horizon next argues that Ordinance 0-11-47 is invalid "because it [is] inconsistent with the Master Plan and not accompanied by an explanatory resolution[.]" More specifically, New Horizon argues the Township Planning Board's determination that the ordinance was substantially consistent with the master plan is not supported by the 2011 Land Use Element Amendment. New Horizon points out that when the Zoning Board failed to approve Quick Chek's variance application by the required number of votes, the memorializing resolution stated that the "area was recently rezoned and the [T]ownship did not see fit to include the proposed use as a permitted use in this zone."

New Horizon acknowledges that the Land Use Element "recommended that the municipality should look to incorporate additional commercial and retail uses along [the Route 9 and Route 33] corridors, specifically within the highway commercial districts, where appropriately supported by infrastructure," but argues that such a recommendation does not support the addition of the gasoline station and convenience center as conditional use within the highway zones. New Horizon characterizes the zone change as precisely the type of "reactional planning" the Land Use Element cautioned against. We are unpersuaded by New Horizon's arguments.

One of four objective criteria that a zoning ordinance must meet to be valid is that "the ordinance must be 'substantially consistent with the land use plan element and the housing plan element of the master plan or designed to effectuate such plan elements,' N.J.S.A. 40:55D-62, unless the requirements of that statute are otherwise satisfied." Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 213-14 (App. Div. 2001) (quoting Riggs, supra, 109 N.J. at 611-12)). If the governing body endeavors to adopt an ordinance or amendment to an ordinance that is inconsistent with the land use plan or housing plan elements, it may do so, "but only by affirmative vote of a majority of the full authorized membership of the governing body, with the reasons of the governing body for so acting set forth in a resolution and recorded in its minutes when adopting such a zoning ordinance[.]" N.J.S.A. 40:55D-62(a).

Before a governing body adopts an ordinance amending its zoning ordinance, the planning board must give the governing body of a municipality "a report including identification of any provisions in the proposed development regulation, revision or amendment which are inconsistent with the master plan and recommendations concerning these inconsistencies and any other matters as the board deems appropriate." N.J.S.A. 40:55D-26(a). A determination by a planning board that an ordinance is substantially consistent with a master plan "is entitled to deference and great weight." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 383 (1995). "[T]he concept of 'substantially consistent' permits some inconsistency, provided it does not substantially or materially undermine or distort the basic provisions and objectives of the Master Plan." Id. at 384.

The Township argues that New Horizon never challenged the Planning Board's determination that Ordinance 0-11-47 was consistent with the master plan, and points out that where a Planning Board makes such a determination, the governing body is not required to adopt the ordinance with an accompanying resolution otherwise required by N.J.S.A. 40:55D-62(a). We need not address that issue, however, because we conclude from the exercise of our de novo review of the record that Ordinance 0-11-47 was not inconsistent with the land use element of the master plan.

The 1994 Master Plan states that some of the land use plan goals are to protect Howell Township's rural areas from sprawl and protect the "rural character of areas outside of centers." The 1994 Master Plan predates the creation of the HD-3 zone, and it is unclear how those areas were designated in 1994. However, the 1994 Master Plan references a commercial-limited district, the purpose of which "is to permit general commercial and light industrial uses which are appropriate to the Route 33 corridor." HD-3's frontage is along Route 33.

The December 2001 Master Plan reexamination notes that "[a] healthy economy is creating a commercial demand on Route 9 and Highway 33 due to visibility." It recommends that Howell Township "[c]reate a harmonious Zone Plan to both recognize recent growth and to accommodate the preservation of remaining rural areas." The 2006 Land Use Plan Element created HD-3. It notes that HD-1 and HD-2 are different, but that those differences "are limited to the permitted and conditional uses." HD-1's uses are more extensive than HD-2's, and "HD-1 . . . allows for auto related activities while HD-2 does not permit those uses." In creating HD-3, the 2006 Land Use Plan Element urges that age-restricted housing should be a conditional use in HD-3, and to encourage mixed use, five percent of every age-restricted proposal in the district should be developed as another one of the permitted uses in the zone, such as officers, financial institutions, or medical centers. The 2007 and 2010 Land Use Plan Elements make the same recommendations.

As previously summarized, Janota, in the 2011 Land Use Element Amendment, recommended that Howell Township "look to incorporate additional commercial and retail uses along [the Route 9 and Route 33] corridors[,] specifically within the highway commercial districts, where appropriately supported by infrastructure." Janota also recommended a "coordinated growth strategy," including exploration of new land uses and a "corridor study to focus on the zoning of these corridors," which would analyze several different issues, including environmental impact and the potential creation of new zones.

Taking all this information and history into account, it cannot be said that Ordinance 0-11-47 "substantially or materially undermine[s] or distort[s] the basic provisions and objectives of the Master Plan." Manalapan, supra, 140 N.J. at 384. The original 1994 Master Plan references a commercial-limited district along Route 33, the purpose of which "is to permit general commercial and light industrial uses which are appropriate to the Route 33 corridor." The 2001 Master Plan Reexamination, while expressing concern over maintaining the rural character of Howell Township, also recognized the increased commercial development along Route 33. And the 2006, 2007, and 2010 Land Use Element Plans all recommended that mixed use should be advanced in the new HD-3 zone.

Combined with the 2011 Land Use Element Amendment, which recommended that Howell Township consider adding more commercial uses to the HD zones, and the Heyer memorandum, which recommended the creation of a combined gas station and convenience store use, we conclude the Planning Board's determination that Ordinance 0-11-47 was substantially consistent with the Master Plan was correct. If there are inconsistencies due to the fact that the 2006 Land Use Element Plan recognizes that "HD-1 . . . allows for auto related activities while HD-2 does not permit those uses," those inconsistencies are not fatal. See Manalapan, supra, 140 N.J. at 384.

We have considered the foregoing historical data while bearing in mind that the ordinance enjoys "a presumption of validity, which may be overcome by a showing that the ordinance is 'clearly arbitrary, capricious, or unreasonable,'" Riggs, supra, 109 N.J. at 610-11; that "there is a 'judicial predisposition in favor of the validity of legislation,' including local zoning ordinances, which makes courts ready to 'impute a proper governmental purpose or interest as the object to be served by the enactment, and, if need be, infer an adequate factual basis to support' it[,]" Med. Ctr. at Princeton, supra, 343 N.J. Super. at 214 (quoting Bell v. Twp. of Stafford, 110 N.J. 384, 394 (1988)); and that a Planning Board's finding that an ordinance is substantially consistent with the master plan "is entitled to deference and great weight[,]" Manalapan Realty, supra, 140 N.J. at 383. From that evaluation, we have concluded that New Horizon did not present sufficient disagreement to require submission to the fact finder of whether the ordinance was inconsistent with the master plan.

C.

Lastly, New Horizon argues that Ordinance 0-11-47 constitutes spot zoning because it "only really benefits one owner/applicant, Quick Chek." Noting that the ordinance was adopted only after Quick Chek's development application for site plan approval and variances was denied, New Horizon asserts that Zimmerman's expert testimony established that Quick Chek's property was the only property that benefited from the ordinance. New Horizon also contends that the ordinance does not promote the public interest but instead has created a use "for a neighborhood that is rural and residential with only select and isolated commercial."

Our Supreme Court has "defined spot zoning to be 'the use of the zoning power to benefit particular private interests rather than the collective interests of the community.'" Riya Finnegan LLC v. Twp. Council of S. Brunswick, 197 N.J. 184, 195 (2008) (quoting Taxpayers Ass'n of Weymouth Twp., Inc. v. Weymouth Twp., 80 N.J. 6, 18 (1976), cert. denied, 430 U.S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977)).

The test is whether the zoning change in question is made with the purpose or effect of establishing or furthering a comprehensive zoning scheme calculated to achieve the statutory objectives or whether it is "designed merely to relieve the lot of the burden of the restriction of the general regulation by reason of conditions alleged to cause such regulation to bear with particular harshness upon it." Conlon v. Board of Public Works of City of Paterson, 11 N.J. 363, 366 (1953). If it is in the latter category, the ordinance is invalid since it is not "'in accordance with a comprehensive plan'" and in effect is "'a special exception or variance from the restrictive residential regulation, thereby circumventing the board of adjustment to which is committed by our Zoning Act . . . the quasi-judicial duty of passing upon such matters, at least initially, in accordance with prescribed standards . . . .'" Speakman v. Mayor and Council of Borough of N. Plainfield, [ 8 N.J. 250, 257 (1951)]. Our inquiry therefore has been directed to ascertaining whether in view of the purposes of the zoning act the action of the borough in rezoning . . . represents sound judgment based on the policy of the statute "to advance the common good and welfare" or whether it is arbitrary and unreasonable and furthers "purely private interests." Schmidt v. Bd. of Adjustment of City of Newark, 9 N.J. 405, 422 (1952).

[Id. at 195-96 (alteration in original) (quoting Borough of Cresskill v. Borough of Dumont, 15 N.J. 238, 249-50 (1954)).]

Applying those principles to this case, we conclude the ordinance did not constitute spot zoning. First, Ordinance 0-11-47 does not rezone or change the zoning of a single parcel. It creates a new use, a combined gas station and convenience store, and makes that use conditional in three zones: HD-1, HD-2, and HD-3. Ordinance 0-11-47, on its face, applies to all the properties in the three HD zones.

New Horizon argues that because, in reality, Ordinance 0-11-47 can only apply to Quick Chek's property, the ordinance constitutes spot zoning. It is true that the ordinance restricts the location of gas stations and convenience centers to corner lots "fronting on a state highway and with direct vehicular access from both the highway and the intersecting street." However, even accepting as true Zimmerman's assertion that all such sites are occupied and in use, the ordinance does not preclude individuals or companies from purchasing one of those occupied lots and building a gas station and convenience store there.

Moreover, the documentary evidence and historical data introduced as joint exhibits during the hearing in the trial court demonstrate that the Township was considering including gas stations with convenience centers as permitted uses as early as 2006. For those reasons as well, we conclude that Ordinance 0-11-47 was not "designed merely to relieve a lot or lots from the burden of a general regulation." Riya Finnegan, supra, 197 N.J. at 196 (quoting Palisades Props., Inc. v. Brunetti, 44 N.J. 117, 134 (1965).

D.

Having considered and rejected New Horizon's challenge to the trial court's decision for the reasons set forth in this opinion, we affirm the trial court's order granting a directed verdict to the Township and Quick Chek.

Affirmed.


1 Quick Chek has acquired an adjacent lot that it intends to incorporate into its development plan.