JOANN DEPHILIPPO v. CINNAMINSON TOWNSHIP PLANNING BOARDAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
JOANN DEPHILIPPO, MICHAEL
DEPHILIPPO, LISA OBOCHOSKI,
and JUDITH PEOPLES,
CINNAMINSON TOWNSHIP PLANNING
BOARD and WAL-MART REAL ESTATE
KGJ ASSOCIATES, LLC,1
CINNAMINSON TOWNSHIP PLANNING
WAL-MART REAL ESTATE
November 7, 2014Argued October 6, 2014 - Decided
Before Judges Sabatino, Simonelli, and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1896-11.
R.S. Gasiorowski argued the cause for appellant/cross-respondent (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, on the brief).
Douglas L. Heinold argued the cause for respondent (Raymond Coleman Heinold & Norman, LLP, attorneys; Mr. Heinold and Christopher J. Norman, on the brief).
Tracy A. Siebold argued the cause for respondent/cross-appellant (Nehmad Perillo & Davis, P.C., attorneys; Ms. Siebold, of counsel and on the brief).
KGJ Associates, LLC ("KGJ"), the owner and operator of a ShopRite supermarket in Cinnaminson Township, appeals the trial court's dismissal of its action in lieu of prerogative writs. KGJ's lawsuit challenged certain "subsection c" variances under N.J.S.A. 40:55D-70(c)(2), waivers under N.J.S.A. 40:55D-51(a), and other approvals that the Township's Planning Board ("the Board") granted to Wal-Mart Real Estate Business Trust ("Wal-Mart"). Wal-Mart obtained the approvals in question to enable it to expand its existing 156,880 square-foot store in the Township by 23,467 square feet, in order to add a grocery component, an outdoor garden center, new entrances, and also to begin round-the-clock store operations.
After extensive hearings with numerous experts and other witnesses, the Board granted the approvals over the objection of KGJ and a group of local citizens.2 The trial court subsequently upheld the approvals, concluding that the Board's decisions comported with the Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-1 to -112. The court also rejected KGJ's claim that the Board was biased in favor of Wal-Mart because of remarks that a single Board member had made at the end of the land use proceedings.
On appeal, KGJ principally argues that the Board and the trial court improperly treated a roadway known as "Mainline Drive," located within the subject property, as a private driveway rather than as a public street, and thereby erred in their application of setback and side yard requirements to the proposed Wal-Mart expansion. KGJ further argues that the Board acted arbitrarily and capriciously in granting Wal-Mart variances and waivers from the Township's zoning ordinance with respect to (i) the size and number of parking stalls on the site; (ii) the size and number of loading space areas; (iii) the size and number of signs on the site; and (iv) the percentage of landscape coverage. KGJ also renews its claim of bias. Wal-Mart cross-appeals on the narrow issue of whether the trial court erred in granting KGJ standing to pursue this land use challenge.
Having considered the voluminous record and the well-presented arguments of counsel, we affirm the trial court's dispositions as to all issues raised on the appeal and cross-appeal. We do so substantially for the thorough reasons cogently expressed in Judge Karen L. Suter's twenty-eight page written decision dated June 26, 2013. We amplify Judge Suter's analysis in the following discussion.
We need not recite at length the facts and procedural history, which are amply detailed in the trial court's opinion. The following summary will suffice for our purposes.
The subject property is located in the Township on Block 804, Lots 9 through 13 and Lots 21 through 26. A portion of the property fronts on State Highway 130. The property currently is occupied by a Wal-Mart store, along with several other retail businesses. The northern portion of the property is located within the Township's Industrial District zone ("IND zone"), and the southern portion lies within the Township's Business Development District zone ("BD zone"). Wal-Mart's existing retail use is permitted within both zones.
Wal-Mart initially obtained preliminary site plan approval from the Board in 2000 to allow its present store to be built. As part of that original approval, Wal-Mart received certain variances and waivers, including a reduction of the 10-foot by 20-foot parking space dimensions called for under the zoning ordinance.3 The approval was amended in certain respects in 2001, and then finalized in 2002 upon the necessary consolidation of certain lots.4
In connection with that original application, the Township's governing body adopted an ordinance on or about February 27, 2002,5 agreeing to vacate a public portion of Mainline Drive, which had then terminated in a cul-de-sac. The Township converted that specific public portion of Mainline Drive to a private roadway, on the condition that the property owner would (1) provide an easement to the public for vehicles to travel freely through the road once it was connected and (2) agree to enforce the Title 39 traffic laws. Such an easement was filed and recorded on March 25, 2002. The cul-de-sac was thereafter eliminated, and the two portions of Mainline Drive were connected continuously, thereby enabling motorists to have access to Wal-Mart from either Route 130 to the south, or from Wallace Boulevard to the north.
Consistent with the 2002 approval, the Wal-Mart was thereafter built and opened. Subsequently, Wal-Mart decided to pursue plans to expand the store that are the subject of the present litigation. As we have noted, Wal-Mart seeks to add nearly 23,467 square feet to the present 156,880 square-foot facility. The maps show that, in essence, the new expanded portion of the building would be constructed to the west, closer to Mainline Drive.
As part of its proposed expansion application that it initially filed in 2008, Wal-Mart sought variances and other approvals before the Board for (1) the continued reduction of the dimensions and number of parking spaces, utilizing the reduced dimensions that had been previously granted by variance in the 2002 approval for the rest of the parking lot; (2) the continued reduction of the loading space numbers and size; (3) a signage variance; and (4) certain waivers of landscape coverage. The proposed expansion was opposed by KGJ, which is a local retail competitor, and also by a group of citizens who were then represented by counsel.
After initial hearings that began in 2008, the Board granted Wal-Mart the requested approvals in 2009. KGJ and the other objectors then filed an action in lieu of prerogative writs challenging the 2009 approval, which was heard by the vicinage's Assignment Judge. In a tentative decision that was not adopted in the court's final order, the Assignment Judge agreed that the objectors' challenges were not valid on the merits. However, the Assignment Judge vacated the Board's 2008 approval without prejudice because of procedural problems with notice.
Wal-Mart's expansion application was then presented a second time before the Board in 2010 after appropriate notices were issued. As represented by the parties, the procedurally-defective 2008 proposal and the 2010 proposal at issue in this case are nearly identical.
Wal-Mart presented numerous expert witnesses over the course of five hearing sessions conducted before the Board. Wal-Mart also presented proof that extra parking space was not needed because on the 2010 "Black Friday" after Thanksgiving, it took photographs showing empty parking spots in the lot as evidence that the existing parking was already ample. The objectors presented competing expert testimony. After considering the proofs, the Board once again unanimously approved Wal-Mart's application, on various conditions, in a resolution dated April 26, 2011.
The objectors thereafter filed a second action in lieu of prerogative writs, which this time was heard by Judge Suter. In her lengthy opinion, Judge Suter rejected all of the objectors' contentions. KGJ then filed the present appeal, and Wal-Mart cross-appealed on the issue of KGJ's standing. Although no stay was requested or has been issued pending appeal, Wal-Mart has agreed to delay construction until this appeal is resolved.
KGJ's main argument revolves around its contention that the Board and the trial court erroneously treated the relevant portion of Mainline Drive as a private road with a public easement, rather than as a public street. According to KGJ, the entirety of Mainline Drive functions as a public roadway, regardless of how it is formally designated or described in the property records. KGJ asserts that if Mainline Drive is properly treated as a public road, then Wal-Mart's proposed expansion violates both setback and side yard restrictions set forth in the Township's zoning ordinance.
These are the pertinent facts determined by the Board concerning this roadway issue. As of the time of Wal-Mart's original application before the store was constructed, what is currently known as Mainline Drive consisted of two portions: a southern portion extending from Route 130, and a northern portion that terminated in a cul-de-sac without connecting with the southern portion. The entire northern portion was a dedicated public road that bordered lots 1 through 7 and lots 21 through 26.
As part of a developer's agreement with the parcel owner, National Keystone Properties, L.P. ("Keystone"), the Township's governing body issued an ordinance (Ordinance No. 2001-14) on or about February 27, 2002, vacating a portion of Mainline Drive and connecting it to private property. The governing body's action was taken pursuant to N.J.S.A. 40:67-1, which provides, in relevant part, as follows
The governing body of every municipality may make, amend, repeal and enforce ordinances to
. . . .
b. Establish, change the grade of or
vacate any public street, highway, lane or alley, or any part thereof[;] . . . . The word "vacate" shall be construed for all purposes of this article to include the release of all public rights resulting from any dedication of lands not accepted by the municipality.
Following this uncontested municipal action, the partnership owning the property entered into an easement agreement with the Mainline Development Company6 ("Mainline") for "vehicular access over and across [Mainline Drive]" recorded on March 25, 2002. The location of the easement was defined in that easement agreement as follows
Keystone [the developer] intends to construct on the Keystone Property a driveway connecting the public right of way known as Mainline Drive (from the point where Mainline Drive and the Vacated Roadway intersect) to a presently existing public right of way which provides access to New Jersey State Highway 130, which driveway is shown hatched [sic] on the plan attached hereto as Exhibit A and hereby made a part hereof . . . . (such driveway is herein referred to as the "Access Driveway") . . . .
With the benefit of this easement allowing public access through Mainline Drive, Wal-Mart finalized approval in 2002. Wal-Mart thereafter built the existing store. The northern and southern portions of Mainline Drive were connected, and the cul-de-sac was eliminated. Consequently, Mainline Drive was and has been utilized by customers to drive to and from the Wal-Mart store, as well as the surrounding stores. There is also some evidence in the record that Mainline Drive is used by certain motorists to cut through the site and drive from Route 130 to Wallace Boulevard.
The record also shows that the Title 39 traffic laws are being enforced on Mainline Drive, including the vacated public portion that is now private but with an easement for public access.7 Such enforcement of the traffic laws on a privately owned roadway is authorized by N.J.S.A. 39:5A-1. In relevant part, that statute permits any person or other corporate institution to apply to the clerk of any municipality to enforce the provisions of N.J.S.A. 39:1-1 through 5G-2 on any "semipublic or private roads . . . open to or used by the public . . . for purposes of vehicular travel by permission of such persons, corporations, or institutions and not as matter of public right[.]" N.J.S.A. 39:5A-1.
Despite the terms of the February 2002 ordinance and the corresponding public easement, KGJ argues that Mainline Drive should be treated as the functional, de facto, equivalent of a public roadway. Applying our de novo standard of review to this legal issue, see Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995), we reject KGJ's argument for several reasons.
First, KGJ concedes that it did not file a timely challenge to the original ordinance in 2002 within forty-five days, as prescribed by Rule 4:69-6(a). Rather, KGJ waited nearly a decade before asserting to the trial court that the entire roadway should be classified as public. We discern no valid excuse for such a private retail competitor to fail to mount such a timely challenge. We decline to enlarge the time frame to authorize KGJ's present argument that, in essence, contests the 2002 resolution. It is not "manifest that the interest of justice so requires" such a lengthy enlargement of time. R. 4:69-6(c).
The Township's decision to vacate the public portion of the road in 2002 consequently has remained unchallenged and unaltered since that time over a decade ago. KGJ's present arguments questioning the private status of this segment of roadway amounts to a belated and improper collateral attempt to file a challenge to Ordinance No. 2001-14 that it should have brought long ago. See R. 4:69-6(a); Saddle Brook Realty, LLC v. Saddle Brook Zoning Bd. of Adj. 388 N.J. Super. 67, 78-79 (App. Div. 2006).
Second, we reject KGJ's functionality argument concerning the roadway. Even if, as testimony before the Board and related comments by Board members indicate, Mainline Drive is used as a "cut-through" by some motorists,8 that does not, in itself, render the road a public thoroughfare and negate the plain text of Ordinance No. 2001-14. The principal case cited by KGJ on this proposition, Barile v. City of Port Republic, 186 N.J. Super. 587 (Law Div. 1982), is unhelpful to its position.
In Barile, the city of Port Republic adopted an official map and, based on its interpretation of the then-existing terms of N.J.S.A. 40:55D-32, deemed the map to be conclusive proof that only those roads specifically included in the map were public roads; all other roads were thus deemed either private or vacated. Barile, supra, 186 N.J. Super. at 589. The plaintiff landowners in Barile disagreed and claimed that vacation of public roads could only be effected by complying with N.J.S.A. 40:67-19. Ibid. In reasoning that the map was not conclusive proof as to the legal status of the streets in question, the Law Division noted that, had the Legislature intended to modify N.J.S.A. 40:55D-32 in such a way, N.J.S.A. 40:67-19 would be wholly "superfluous" because townships could vacate existing public streets in a "backhanded manner by adoption of an official map." Id. at 592-93.
In the present case, there was no such "backhanded" municipal action. Instead, the vacation of the pertinent public portion of Mainline Drive was accomplished directly and explicitly in the Township's 2002 ordinance.
Further, Mainline Drive is not, as KGJ argues, a "plat heretofore approved pursuant to law, or which is approved by official action as provided for in the Municipal Land Use Law and this chapter[.]" See Township of Cinnaminson, N.J., Code 330-2 (2007) ("Ordinance") . The crucial qualifier in this passage is the term "heretofore." The term "heretofore" has been defined as "up to now; before this time." Black's Law Dictionary 795 (9th ed. 2009). Thus, as it applies to Ordinance 330-2, a roadway may be deemed a street if, prior to the ordinance's enactment, there existed a roadway or drive that was approved pursuant to law or by official action.
Under KGJ's reading of Ordinance 330-2, any plat of land, at any time, approved pursuant to law or by official action must "necessarily be deemed a 'street.'" That interpretation improperly ignores the term "heretofore" in that Ordinance. We therefore reject that strained interpretation. Perrelli v. Pastorelle, 206 N.J. 193, 207-08 (2011) (citations omitted) (noting that courts will not interpret a statute or ordinance in such a way that it makes language "superfluous or meaningless").
Moreover, the mere fact that a portion of the internal roadway may be used by some motorists as a "cut-through" from Route 130 to the dedicated portion of Mainline Drive does not legally transform the private section of that roadway into a public street for purposes of the land use issues in this appeal. As was noted in the course of the Board's hearings, the Township has commissioned several private service roads for similar centers in the past. Likewise, the fact that Title 39 traffic laws are applicable to Mainline Drive, pursuant to the governing body's February 2002 ordinance and N.J.S.A. 39:5A-1, is not dispositive of the legal status of the roadway. As N.J.S.A. 39:5A-1 provides, certain private roadways can be subject to the Title 39 traffic laws "and open to  use by the public by permission of . . . such corporations . . . and not as a matter of right[.]"
For these many reasons, we reject KGJ's argument that the Board and the trial court erred in failing to treat Mainline Drive as a public road.9
Even if the portion of the road adjoining Wal-Mart's proposed expansion were deemed public rather than private, KGJ's arguments concerning setback and side yard violations are unavailing in any event.
Ordinance 525-83(A)(3) of the Township requires that in any industrial zone, there must be a fifty-foot front yard setback. A front yard is defined as "[a] space extending the full width of the lot between any building and the front lot line and measured perpendicular to the building at the closest point to the front lot line." Ordinance 330-2. A building includes "[a]ny structure, including an annex or addition that requires for its use a fixed location on the land; provided, however, that an interior change or alteration of a structure shall also be deemed to a be 'building' for the purposes of this chapter." Ibid.
Although undefined in the Township's Code, the MLUL defines a structure as "a combination of materials to form a construction for occupancy, use or ornamentation whether installed on, above, or below the surface of a parcel of land." N.J.S.A. 40:55D-7.
KGJ argues that Wal-Mart's parking lot should be considered a structure. If so considered a structure, the parking lot would be a building as defined by Ordinance 330-2, and consequently there must be a front yard setback measured from the parking lot edge. Since Wal-Mart failed to apply for a setback variance, Wal-Mart argues that the Board's resolution should be invalidated. We reject this argument for several reasons.
First, as Judge Suter aptly pointed out, KGJ's interpretation overlooks the distinct requirement for parking space separations contained in Ordinance 525-110(B)(2)(c). As is relevant here, that section provides
All off-street parking, off-street loading and service areas shall be separated from walkways, sidewalks, streets, or alleys by curbing or other protective devices approved by the Board. Along each street line a five-foot strip measured from the right of way shall be provided [and] suitably landscaped except for necessary walks and access ways.
Although the term "street line" is not defined within in the Township's land use ordinances, common sense dictates that the five-foot requirement applies to any property line that abuts a street, regardless of its location.
Second, despite the fact that our courts have at times included parking lots as "structures" when interpreting N.J.S.A. 40:55D-7, see, e.g., Mountain Hill, L.L.C. v. Zoning Bd. of Adj. of Twp. of Middletown, 403 N.J. Super. 210, 221 n.2 (App. Div. 2008) ("The term 'structures' includes not only 'floors,' but garage and parking lots."), such an expansive definition should not pertain here, given the Ordinance's explicit five-foot buffer provision noted above.
Third, Wal-Mart's application did not propose any improvements or expansion of the current parking area aside from, arguably, the addition of several trees as part of the landscaping improvements. Thus, KGJ's argument that a front yard setback variance was necessary, even if, hypothetically, Mainline Drive is deemed a public street, must be rejected.
KGJ also opaquely refers to asserted violations of the required setbacks for the side yards and the rear yard. These contentions are likewise without merit.
Ordinance 525-83(A)(4) of the Township provides that for properties in the IND Zone, "there shall be two side yards on the lot neither of which shall be less than [twenty-five] feet in width." Side yard, as defined in Ordinance 330-2 is "a space extending from the front yard to the rear yard between the principal building and the side lot line to the closest point of the principal building."
Wal-Mart has not proposed, nor has any evidence been presented, that Wal-Mart intends to extend any of the expansion into the existing twenty-five-foot setback. Thus a proper side yard setback is being maintained.
The same conclusion applies to the rear yard setback. Township Ordinance 525-83(A)(5) provides that for properties in the IND Zone, "there shall be a rear yard on the lot which shall be not less than [twenty-five] feet in depth." Rear yard is defined in Ordinance 330-2 as "[a] space extending across the full width of the lot between the principal building and the rear lot line and measured perpendicular to the building to the closest point of the rear lot line." Ibid. Although KGJ suggests in its brief that "Wal-Mart's site plan depicts retaining walls and trash enclosures encroaching into the [twenty-five]-foot rear yard setback area," there is no evidence that this has actually happened or that Wal-Mart intends to expand the rear of the building. As such, the current rear yard setback is being properly continued and KGJ's argument on this point was properly rejected.
We also discern no violation of side yard requirements, even if, again for the sake of argument, the pertinent portion of Mainline Drive is treated as a public street. As we have already noted, Ordinance 525-83(A)(4) requires that there "shall be two side yards on the lot, neither of which shall be less than [twenty-five] feet in width, except that when the industrial area abuts a residential area, the side yard shall be [fifty] feet, except where a street intervenes." "Street," as defined in Ordinance 330-2 is
Any street, avenue, boulevard, road, parkway, viaduct, drive, or other way which is an existing state, county, or municipal roadway, or which is shown upon a plat heretofore approved pursuant to law, or which is approved by official action as provided for in the Municipal Land Use Law and this chapter, or which is shown on a plat duly filed and recorded in the office of the county recording office prior to the appointment of a Planning Board and the grant to such Board of the power to review plats; and includes the land between the street lines, whether improved or unimproved, and may comprise pavement shoulders, gutters, curbs, sidewalks, parking areas and other areas within the street lines.
Bearing this in mind, KGJ argues that because it considers Mainline Drive a public "street" within the definition of Ordinance 330-2, Wal-Mart was required to obtain a setback variance, given that the current structure is only thirty feet set back from Mainline Drive. As the trial court recognized, KGJ's argument is flawed on several levels.
First, as we concluded supra, Mainline Drive is not a public street for purposes of the land use issues raised in this appeal. Second, the only area in question is a small portion of the yard "extending from the front yard to the rear yard" properly characterized as a side yard. Thus, in contrast to KGJ's assertion that fifty feet are required, only twenty five feet are required for the setback to be satisfied. Resultantly, at the very most, there is only a negligible encroachment of the side yard requirement. Such a de minimis encroachment did not require the Board to reject Wal-Mart's application, or for the trial court to invalidate the Board's decision, even accepting KGJ's mistaken premise that Mainline Drive should be treated in its entirety as a public street. See Nuckel v. Borough of Little Ferry Planning Bd., 208 N.J. 95, 109 (2011) (applying de minimis concepts to land use issues).
We turn to KGJ's assorted claims that the Board and the trial court erred in approving Wal-Mart's requests for relief from the zoning ordinance standards respecting parking spaces, loading areas, signage, and landscaping. These issues do not warrant extended discussion, given the detailed reasons for such relief expressed in the Board's resolution as well as the sound analysis in Judge Suter's written opinion sustaining the Board's decisions as to these items.
As we explained when construing the MLUL in Wilson v. Brick Twp. Zoning Bd. of Adj., 405 N.J. Super. 189, 198 (App. Div. 2009), the application for a variance under N.J.S.A. 40:55D-70(c)(2)10requires
(1) [that it] relates to a specific piece of property; (2) that the purposes of the Municipal Land Use Law would be advanced by a deviation from the zoning ordinance requirement; (3) that the variance can be granted without substantial detriment to the public good; (4) that the benefits of the deviation would substantially outweigh any detriment and (5) that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance.
[Ibid. (citing William M. Cox, New Jersey Zoning and Land Use Administration, 6-3.3 at 143 (Gann 2008)(citation omitted)).]
With respect to the landscaping waivers, we note that planning boards may waive certain site plan requirements for "modest changes in use" under N.J.S.A. 40:55D-51(a)11 so long as they are reasonable. Garofalo v. Twp. of Burlington, 212 N.J. Super. 458, 464 (Law Div. 1985). In essence, such a waiver is "no more than an acknowledgement by the board that the condition of the property is satisfactory and meets the requirements of the local ordinance." Ibid.
In reviewing KGJ's contentions that the Board acted arbitrarily and capriciously in approving these particular requests, we must be mindful, as was Judge Suter, of our limited scope of judicial review. As the Supreme Court has repeatedly instructed, "courts ordinarily should not disturb the discretionary decisions of local [land use] boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. Zoning Bd. of Adj. of N. Caldwell, 160 N.J. 41, 58-59 (1999) (applying this deferential judicial review standard in a case upholding grants of subsection (c)(1) and (c)(2) variances). Courts must recognize the "peculiar knowledge of local conditions" possessed by land use boards and afford them "wide latitude in their exercise of delegated discretion." Kramer v. Bd. of Adj. of Sea Girt, 45 N.J. 268, 296 (1965). In general, the actions of municipal land use boards are generally presumed to be valid unless a challenger shows that the actions are arbitrary, unreasonable, or inconsistent with the law. Lang, supra, 160 N.J. at 58; Burbridge v. Governing Body of Mine Hill, 117 N.J. 375, 385 (1990); Kramer, supra, 45 N.J. at 296. "Even when doubt is entertained as to the wisdom of the action, or some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved." Kramer, supra, 45 N.J. at 296-97.
The trial court correctly applied this limited standard of review in upholding the relief granted to Wal-Mart by the Board as to the parking space, loading dock, signage, and landscaping items. We incorporate and adopt in full Judge Suter's careful analysis of each of these items. We add only a few amplifying comments.
It bears emphasizing that the reduction in the size and number of parking spaces on the property from that which would otherwise be called for under the Township's zoning ordinance was already approved by the Board when the Wal-Mart store was approved in 2000-2002. There is substantial credible evidence in the record to support the Board's considered judgment that the expansion proposed by Wal-Mart did not require additional parking spaces or strict adherence to the ten-foot-by-twenty-foot usual minimum dimensions for each parking stall. The fact that the Board apparently did not grant KGJ identical reductions in stall dimensions and space numbers when it approved KGJ's ShopRite project located in the Township does not mean that the Board was legally precluded from granting Wal-Mart the parking space relief that it granted in 2000-2002 and reaffirmed in 2010.
There was ample expert and factual testimony before the Board to support Wal-Mart's requests, including the proofs showing that the existing parking was ample on the day after Thanksgiving in 2010, which is one of the busiest retail shopping days of the year. We affirm the variances granted for 1,629 parking spaces rather than the 1,765 spaces called for by ordinance, as well as the slight reduction in stall sizes that the Board approved.
As Judge Suter reasonably concluded, there also was ample support in the record for the Board to provide Wal-Mart with a subsection (c)(2) variance for the zoning ordinance's usual requirements concerning loading spaces. Prior to the proposed expansion, Wal-Mart had three loading spaces, whereas the zoning ordinance called for nine such spaces. In addition, the spaces were twelve feet wide as opposed to the slightly-larger ordinance requirement of fifteen feet. None of those existing nonconformities from the ordinance were nullified in any prior proceeding before the present litigation.
As part of the proposed expansion, Wal-Mart planned to add three additional twelve-foot loading docks as well as two loading areas, raising the total number of loading spaces to eight. The expert and other testimony presented by Wal-Mart concerning the loading area plans readily met the standards of N.J.S.A. 40:55D-70(c)(2). The Board did not act arbitrarily or unreasonably in finding in its resolution, which tracked the operative statutory criteria, that these requests relating to the loading areas "would not cause a substantial detriment to the public good or substantially impair the intent and purpose of the zone plan and [z]oning [o]rdinance." As the resolution also favorably noted, the three additional loading areas proposed by Wal-Mart actually improved the relative loading area capacity, and reduced the shortfall of loading areas from five to only one.
Likewise, the trial court correctly determined that the Board did not act arbitrarily or unreasonably in granting Wal-Mart a subsection (c)(2) variance with respect to signage. At the time of its 2008 application, Wal-Mart had an existing non-conformity, approved in the original 2000-2002 application for the store, permitting nine signs on the premises comprising a total area of 495 square feet. The ordinance calls for only one attached sign, not to exceed 200 square feet.
In its present application, Wal-Mart proposed to reduce the total number of signs from nine to four, but sought to increase the total square footage of signage from 495 to 550.44 square feet. The Board reasonably chose to credit the testimony of Wal-Mart's experts, who explained that the additional square footage was minimal in comparison to the 17,000 square-foot building facade and that the dimensions of the signs would not interfere with traffic flows. The Board concluded that the proposed signs would "promote the public good by enabling patrons to move through the parking lot effectively and safely," and also would create a "desirable visual environment." The Board also recognized the benefit of reducing the total number of signs from nine to four, which brought the signage in "closer conformity" with the signage ordinance. Judge Suter detected no abuse of discretion or impropriety in the Board's conclusions, and neither do we.
We further agree with Judge Suter that the modest waiver the Board granted Wal-Mart from certain landscaping requirements, which reduced the existing landscaping coverage by a scant 0.2 percent, was neither arbitrary nor unreasonable. The Board had ample grounds to allow Wal-Mart to continue to deviate from the ordinance's landscaping standard requiring a tree for every ten parking spaces. Although the percentage of landscaping coverage would slightly decrease after the expansion, the number of trees and plantings on site was actually going to increase by approximately five hundred. We agree with the judge that the Board was entitled to deference on this item as well.
During the multiple-session proceedings before the Board concerning Wal-Mart's 2010 application, one of the Board members, who also appeared to be a member of the Township's governing body, remarked on the record prior to his vote that "on behalf of the Township Committee we welcome any corporation that wants to expand their investment in Cinnaminson." The member added that "[w]e certainly welcome that and we wish all companies would do that, so my vote [respecting Wal-Mart's application] is yes." We agree with Judge Suter that these singular comments are insufficient to disqualify the Board member from voting on the approvals, or that it tainted the Board's decision.
There is no indication in this record that the Board member in question would obtain personal or financial gain if the applicant's expansion were approved. Cf. N.J.S.A. 40:55D-69 (prohibiting Board members from participating in decisions where they have "either directly or indirectly, any personal or financial interest"). Rather, as Judge Suter noted, "it appears his interest was [encouraging] investment in Cinnaminson, an interest that he has in common with all residents of the Township." As an expression of such common interest, the Board member's comment did not disqualify him from voting on the application. Kramer, supra, 45 N.J. at 282; see also Wyzkowski v. Rizas, 132 N.J. 509, 525-26 (1993) (delineating various conflict-of-interest situations that call for disqualification, none of which pertain here). We also do not understand the Board's member's comments to signify that he would indiscriminately approve any developer's land use application, regardless of its merit or its conformity with the Township's zoning standards and the applicable law.
Although it is academic to do so because we are affirming the trial court's decision and rejecting KGJ's appeal on the merits, we very briefly comment on Wal-Mart's cross-appeal, for sake of completeness. In sum, we concur with Judge Suter that KGJ had sufficient standing to litigate its challenge to Wal-Mart's application.
As the judge rightly observed, New Jersey courts traditionally have taken a "generous view of standing." In re Protest of Award of N.J. State Contract A7118, 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 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).
It is unquestionably clear here that KGJ, as a long-time taxpayer, property owner, and business owner in the Township, has a sufficient stake in the approval of Wal-Mart's proposed expansion to possess standing to challenge the Board's approvals. The expansion is significant in scope and surely could have an impact on the Township and, in particular, the Route 130 retail corridor. The fact that KGJ is a retail competitor of Wal-Mart 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. 2004) (noting that business competitors may be "particularly well equipped" to pursue a challenge under the MLUL and to provide illuminating background information).
KGJ was entitled to expend its resources to pursue its challenge to Wal-Mart's expansion application before the Board, one that was joined, until the present appeal, by several interested citizen objectors. KGJ was likewise entitled to litigate this case in the Superior Court and the present appeal. We therefore affirm the trial court's decision relating to standing, and reject Wal-Mart's cross-appeal as lacking in merit.
Affirmed, as to both the appeal and cross-appeal.
1 Improperly pled as KRE, Inc.
2 The local citizen objectors, who participated in the trial court proceedings, have not appealed and are listed by name in the appellate caption for sake of completeness.
3 Counsel on the appeal stated to us at oral argument that they were unaware of any litigation challenging the Board's earlier approvals granted to Wal-Mart for construction of the store.
4 For simplicity, we shall refer to the Board's original approvals collectively as the "2002 approval."
The copy of the resolution in KGJ's appendix contains a stamped date of "February 27, 2002," although the briefs at times ascribe other dates to the resolution, perhaps erroneously.
6 Mainline evidently was the name of the earlier property owner, which apparently was succeeded by Keystone.
7 At oral argument on the appeal, counsel were unsure about whether the local police enforce the traffic laws on the roadway, but, for the reasons we note, infra, that uncertainty is inconsequential.
8 Although we agree with Wal-Mart's legal position that the disputed portion of Mainline Drive is no longer a public thoroughfare, we reject the euphemistic description of Mainline Drive by one of Wal-Mart's experts as merely a "driveway."
9 That said, we confine our decision on this point to the land use context presently before us, and do not reach whether the roadway is public in nature for other purposes such as liability for dangerous conditions under the Tort Claims Act, N.J.S.A. 59:1-1 to -12-3.
10 Although Wal-Mart alternatively included a request for variance relief under N.J.S.A. 40:55D-70(c)(1), the thrust of the Board's resolution approving the variances amounts to an approval under (c)(2) criteria, as the Board did not make any findings of relative hardship under subsection (c)(1).
11 N.J.S.A. 40:55D-51(a) provides, in relevant part, that a planning board considering an application for preliminary or minor subdivision approval is empowered to "grant such exceptions from the requirements for subdivision approval as may be reasonable and within the general purpose and intent of the provisions for subdivision review and approval of an ordinance adopted pursuant to the [MLUL]."