ROCKAWAY SHOPRITE ASSOCIATES, INC v. PLANNING BOARD OF THE CITY OF LINDEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ROCKAWAY SHOPRITE

ASSOCIATES, INC.,

Plaintiff-Appellant/

Cross-Respondent,

v.

PLANNING BOARD OF THE CITY

OF LINDEN and LINDEN

DEVELOPMENT, LLC,

Defendants-Respondents/

Cross-Appellants.

_____________________________

January 20, 2017

Argued December 20, 2016 Decided

Before Judges Reisner, Koblitz, and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2699-14.

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

AndyS. Norinargued the causefor respondent/cross-appellant Linden DevelopmentLLC (Drinker Biddle & Reath LLP, attorneys; Mr. Norin, of counsel and on the joint briefs; John P. Michalski, on the joint briefs).

Anthony D. Rinaldo, Jr., argued the cause for respondent/cross-appellant Planning Board of the City of Linden (Mr. Rinaldo, on the joint brief).

PER CURIAM

Plaintiff Rockaway ShopRite Associates, Inc. appeals from a July 7, 2015 order dismissing its complaint in lieu of prerogative writs, challenging the Linden Planning Board's decision to grant Linden Development, LLC (the applicant) site plan approval for a large commercial development on Routes 1 and 9 in Linden.1 After reviewing the record in light of the applicable law, we conclude that plaintiff's appellate arguments are completely without merit, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons stated by Assignment Judge Karen M. Cassidy in her written opinion issued with the order. We add only these brief comments.

After this lawsuit was filed, the Linden City Council amended the municipal zoning ordinance in a way that would render the application conforming, with no need for variances. Pursuant to our recent decision in Jai Sai Ram, LLC v. South Toms River Planning/Zoning Board, 446 N.J. Super. 338, 340 (App. Div.), certif. denied, __ N.J. __ (2016), the applicant was entitled to the benefit of the amended ordinance. Thus, in substance, the appeal is moot. Id. at 345.

Contrary to plaintiff's argument, the applicant's original notice did not need to list the variances sought, as long as it described in substance "what the property will be used for under the application." Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 238 (App. Div. 1996); see id. at 237 n.3. Likewise, we find no merit in plaintiff's contention that the applicant needed to re-notice the application and start the approval process over again, after the ordinance was amended a time-wasting procedure that would serve no purpose other than to delay the development. See id. at 239 (quoting In re Appeal of Booz, 533 A.2d 1096, 1098 (Pa. Commw. Ct. 1987)).

Affirmed.

1 The applicant and the Board filed protective cross-appeals, however, in light of our disposition of the appeal, we need not address the cross-appeals.