Opinion
DOCKET NO. A-1334-14T4
06-15-2016
426 ROYAL, LLC, Plaintiff-Appellant, v. PLANNING BOARD OF THE TOWNSHIP OF SOUTH BRUNSWICK and PINEVILLE BRUNSWICK DEVELOPMENT ASSOCIATES, LP, Defendants-Respondents.
Jennifer Phillips Smith argued the cause for appellant (Gibbons, P.C., attorneys; Howard D. Geneslaw and Ms. Smith, of counsel and on the brief). Benjamin S. Bucca, Jr., and Paul H. Schneider argued the cause for respondents (Bucca & Campisano, attorneys for respondent Planning Board of the Township of South Brunswick; Giordano, Halleran & Ciesla, attorneys for respondent Pineville Brunswick Development Associates; Mr. Bucca, Mr. Schneider and Afiyfa H. Ellington, on the joint brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Accurso and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7325-13. Jennifer Phillips Smith argued the cause for appellant (Gibbons, P.C., attorneys; Howard D. Geneslaw and Ms. Smith, of counsel and on the brief). Benjamin S. Bucca, Jr., and Paul H. Schneider argued the cause for respondents (Bucca & Campisano, attorneys for respondent Planning Board of the Township of South Brunswick; Giordano, Halleran & Ciesla, attorneys for respondent Pineville Brunswick Development Associates; Mr. Bucca, Mr. Schneider and Afiyfa H. Ellington, on the joint brief). PER CURIAM
In this prerogative writs action, plaintiff 426 Royal, LLC, appeals from a Law Division judgment affirming South Brunswick Planning Board's grant of preliminary and final site plan approval to defendant Pineville Brunswick Development Associates, LP, a competing developer. We affirm, substantially for the reasons expressed by Judge Hurley in his comprehensive and well-reasoned opinion of October 2, 2014.
Pineville owns a forty-five acre unimproved parcel of land on the southeast side of Route 1 and Stouts Lane in South Brunswick for which it sought site plan approval to build a 75,798 square foot supermarket and retail pad. The parcel shares an access road and stormwater infrastructure with the Heritage Village Shopping Center, a large retail complex located on an adjacent parcel, which Pineville developed over fifteen years ago as the first phase of this anticipated two-phase project. The access road provides the supermarket parcel access to Stouts Lane, while driveways through the shopping center's parking lot allow access to Route 1. Owing to the access road and detention basin that service both the site and the shopping center, and a conservation easement Pineville's predecessor in title gave to the Delaware and Raritan Canal Commission in 2001, only a little less than twelve acres of the site is available for development.
Pineville's application to the Planning Board included a design approach carried over from the shopping center, reflective of Pineville's conception of the existing shopping center and its proposed supermarket and additional retail space as one cohesive retail development. At the public hearings on the application, Pineville presented the testimony of its architects, a professional planner, a licensed engineer and a traffic expert. The Board also heard from its own professionals and a traffic expert, licensed engineer and professional planner testifying on behalf of Royal. Three members of the public testified in favor of the application, while one person expressed concern over the parking and traffic circulation.
The Board took extensive testimony on four different dates concerning the site layout, architecture, signage, stormwater management, traffic circulation and the plan for replacing trees removed in developing the site. Among the many issues addressed was whether Pineville needed variances or design waivers for the relief it required from the provisions of the Township's land use ordinance governing the size and placement of landscaped islands separating parking stalls from circulation aisles and prohibiting parking in the front and side yard setbacks. Although Pineville had sought variances under N.J.S.A. 40:55D-70c(2) for that relief and the voice vote approving the application mirrored that request, the Board's professionals testified that they and the Board have always considered such requests for relief from the parking standards of the ordinance as design waivers and not variances.
Pertinent to this appeal, the Board resolution memorializing the approval included the grant of variances to allow the supermarket to be sited at a ninety-degree angle from facing Route 1 as otherwise required, mirroring the variance allowed for the Target retail store in Phase I; to allow parking in the front and side yard setbacks as permitted in Phase I; to permit additional pylon and building signs; omitting bikeways as in Phase I; and relieving Pineville of the requirement that ten percent of the site be devoted to green space, fifty percent of which was to be located in the parking areas.
The resolution also memorialized the grant of design waivers for the sizing, placement and landscaping of parking islands. The resolution notes the Board found both the variance and design waivers relating to the parking lot justified by existing environmental and physical constraints dictating the location of the lot, the extent of the site remaining undeveloped, the need to assure adequate on-site parking, the grant of such waivers to other commercial developments and the landscape buffering and grade of the parking lot making it not highly visible to the traveling public.
Royal challenged the approval in the Law Division contending the Board granted Pineville waivers where variances were required, impermissibly delegated its authority over the stormwater and other issues, lacked jurisdiction because of Pineville's faulty notices, acted arbitrarily in granting the approvals and violated Royal's constitutional rights. In all, Royal raised nine issues in its prerogative writs challenge. Judge Hurley addressed and rejected each of those claims in his forty-two page opinion affirming the Board's action.
After setting forth the testimony elicited at the hearing, the judge first undertook a detailed review of the Township's land use ordinance to address Royal's claim that the Board granted design exceptions or waivers from the zoning ordinance contrary to Wawa Food Market v. Planning Board of Ship Bottom, 227 N.J. Super. 29, 36 (App. Div.) (holding a planning board cannot grant a design waiver for off-street parking requirements contained in the zoning ordinance; relief must be by variance), certif. denied, 114 N.J. 299 (1988).
The judge noted that instead of adopting separate ordinances for zoning and site plan review, South Brunswick had only one ordinance, Chapter 62 of the municipal code entitled "Land Use." Chapter 62 contains fifteen different articles; Article III is entitled "Subdivision" and Article IV is entitled "Zoning." There is no article dedicated to site plans. Section 62-205 of Article III, however, provides "[t]he same standards and principles which are applicable to subdivisions and which are set forth in section 62-204 shall be applicable to site plan review." The judge noted that although section 62-205 directs the Planning Board in reviewing a site plan to "consider" in addition to the standards set out in section 62-204, the provision and layout of parking areas for ease of pedestrian and vehicular traffic movement, aesthetic design and safety, neither it nor section 62-204 has any specific provisions relating to parking.
Instead, the site plan standards and requirements relating to safe and efficient vehicular and pedestrian circulation, parking and loading required for inclusion in a site plan ordinance by N.J.S.A. 40:55D-41b, appear in Division 6 "Off-Street Parking and Loading Design Standards" a subsection of Article IV, the article entitled "Zoning." Confronted with the ambiguity of the inclusion of Division 6 "Design Standards" "within the general title of 'Zoning,' although clearly not 'use regulations,'" Judge Hurley found that the Township had obviously incorporated its site plan regulations into various sections of its "Zoning" article. He concluded therefore that it was not sufficient to merely look to the titles of the subparts of the ordinance to determine whether any specific provision was a zoning regulation or a design standard. The judge looked instead to the language of each provision at issue to determine whether the governing body intended to allow the Board discretion to grant an exception from the requirement, thus treating the provision as a site plan regulation instead of a zoning provision for which relief would have to be by variance in accordance with Wawa.
Undertaking that substantive review regarding the waivers granted to Pineville pursuant to ordinance sections, 62-1794(c)(2) (parking areas to be separated from on-site access roadways by planted islands); 62-1794(c)(4) (parking areas having thirty or more stalls to employ parking islands with a width of at least eight feet); 62-1794(c)(5) (specifying minimum sizes for planted islands adjacent to single and doubles rows of parking stalls); and 62-1794(c)(7) (parking in setbacks), the judge concluded that each was obviously a design standard for which waiver relief was permitted and that the Planning Board did not act arbitrarily in granting the waivers. Undertaking the same substantive review for the variances granted to Pineville pursuant to ordinance sections, 62-1822 (signs); 62-2022 (bikeways); and 62-2023 (ten percent of site devoted to green space), the judge concluded that the record supported the Board's grant of the variances.
Although rejecting Royal's contention that the Board in its resolution granted Pineville a variance to allow parking in the setbacks in one part of the resolution and a design waiver for the same relief in another part, the judge noted some confusion surrounding the issue arising out of the Board's findings of fact. We are satisfied that to the extent the resolution can be read as granting a variance for parking in the setbacks pursuant to N.J.S.A. 40:55D-70c(2), there is adequate evidence in the record to support its decision.
With regard to the variance granted for the omitted bikeways, section 62-154(g)(4), the judge concluded that no variance was actually necessary as the section addresses how bikeways are to be constructed, if required, making bikeways permissive in the discretion of the Planning Board. The judge found, however, that the record supported a variance if one were required.
Addressing Royal's contention that the Planning Board failed to grant all the relief Pineville required for its proposed stormwater management facilities, the judge noted that "[t]he subject of stormwater management is both highly technical and subject to overlapping layers of governmental regulation." Judge Hurley observed that New Jersey's Department of Environmental Protection encouraged municipalities to adopt rules that follow DEP standards and that South Brunswick had done so. See N.J.A.C. 7:8-4.1 to -4.6 and ordinance section 62- 2571 to 62-2583. Both DEP regulations and the Township's ordinance provide "to the maximum extent practicable, the standards shall be met by incorporating nonstructural stormwater management strategies into the design." See N.J.A.C. 7:8-5.3 and section 62-2573(a)(1).
The Board rejected the testimony of Royal's engineer that Pineville's stormwater management system had a fundamental design flaw. It considered the proofs offered by both parties and granted approval conditioned on Pineville's stormwater management plan obtaining DEP approval. Judge Hurley determined that because South Brunswick's ordinance as it relates to stormwater management "mimics" the DEP's regulations, "if the Board had either granted a variance or a waiver to the Township's ordinance, it could not, by such action, vary the rules of the other governmental agencies having jurisdiction." The judge accordingly dismissed as without merit Royal's claim the Planning Board impermissibly delegated its authority "by imposing the condition that Pineville secure other governmental approvals."
The judge similarly rejected Royal's claim the Board had impermissibly delegated its authority to its staff to determine the adequacy of Pineville's tree replacement plan. On reviewing the Township's ordinance on this point, the judge found the ordinance permits a developer "to contribute an amount equal to the current cost of each replacement tree not planted, as determined by the planning department" in lieu of planting all the replacement trees required. Because the ordinance vested this authority in the Planning Department, the judge found no dereliction in the Board having deferred final determination of Pineville's tree replacement plan to the Township's Planning Department.
Judge Hurley rejected Royal's claims that the multiple notices Pineville published and served pursuant to N.J.S.A. 40:55D-11 were inadequate under the principles established in Perlmart of Lacey, Inc. v. Lacey Township Planning Board, 295 N.J. Super. 234, 237-38 (App. Div. 1996), and Pond Run Watershed Ass'n v. Township of Hamilton Zoning Board of Adjustment, 397 N.J. Super. 335, 349 (App. Div. 2008). After reviewing the notices Pineville published in April and May 2013, Judge Hurley noted they were obviously sufficient to induce four members of the public and Royal to appear and participate in the public hearings.
Further, the judge found the notices Pineville provided were
sufficient to advise a person of common experience that the proposal is for a shopping center to be similar to, and adjacent to, the Heritage Shopping Center,
but on property designated as Block 82, Lot 15.02, further identified as 4154-4174 US Route 1. The notice also advises that the Property has an existing cross access and cross utility easements with the adjoining properties, which indicates that access between the two is proposed. The notice also advises that variances relative to the building, parking and signage will be sought. In conjunction with the foregoing, the provision in the notice that advises that Pineville will seek whichever other variances or waivers that may be required is sufficient. The notice sufficiently describes the application as being in proximity to and essentially an extension (in design) of the Heritage Shopping Center.The judge accordingly rejected Royal's claims that the insufficiency of the notices deprived the Planning Board of jurisdiction to hear and decide Pineville's application.
Upon review of the entire record of the proceedings before the Planning Board and each of Royal's claims of error, Judge Hurley rejected Royal's contention that the Board acted arbitrarily or capriciously in any respect in granting Pineville preliminary and final site plan approval for its project. He found Royal could at most establish only a difference of opinion between its experts and those who testified on Pineville's behalf, which was insufficient to overcome the presumption of validity accorded to the Board's decision. See Zilinsky v. Zoning Bd. of Adjustment of Verona, 105 N.J. 363, 369 (1987). Because the judge found adequate evidence in the record to support the Board's findings and its resolution, he affirmed the approvals granted to Pineville and dismissed Royal's prerogative writs challenge. See Smart SMR v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998).
Royal appeals, reprising the claims it made to the trial court. As our Supreme Court has recently reminded, our courts accord wide latitude to a municipal planning board in the exercise of its delegated discretion. Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 33 (2013). "A board's decisions are presumptively valid, and a court may not substitute its own judgment for that of the board unless there has been a clear abuse of discretion by the board." Ibid. The burden of demonstrating the Board acted arbitrarily, capriciously, or unreasonably is on the challenger. See Smart SMR, supra, 152 N.J. at 327.
Applying those standards here, we find no reason to reverse the determination of the trial judge following his extensive review of the proceedings before the Planning Board. To his careful findings, we add only the following.
We agree with Judge Hurley that whether Pineville required design waivers or variance relief from the provisions of the ordinance is controlled by the principle enunciated in Wawa, that is, a planning board has no authority to grant waivers or exceptions in the course of site plan review from provisions of the zoning ordinance. 227 N.J. Super. at 31. "Relief from the provisions of a zoning ordinance must be sought under the variance procedure." Ibid. We also, however, agree that the facts of Wawa are distinguishable from this matter.
As with construing statutes, the aim of courts in construing ordinances is to determine legislative intent. Trust Co. of N.J. v. Planning Bd. of Freehold, 244 N.J. Super. 553, 568 (App. Div. 1990). Our Constitution requires that zoning and land use ordinances receive a reasonable construction, N.J. Const. art. IV, § VII, ¶ 11, and our case law requires that they be liberally construed in favor of the municipality. L & L Clinics, Inc. v. Town of Irvington, 189 N.J. Super. 332, 336 (App. Div.), certif. denied, 94 N.J. 540 (1983).
State statutory law is clear. The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, grants a municipality the power to adopt an ordinance requiring site plan approval by its planning board as a condition for development. N.J.S.A. 40:55D-37a. Any such ordinance must include definite and clear standards for site plan review and approval. N.J.S.A. 40:55D-38, -41; see also Pizzo Mantin Group v. Twp. of Randolph, 137 N.J. 216, 230 (1994). The MLUL permits a planning board the authority to grant exceptions from the requirements and standards of a site plan ordinance "as may be reasonable and within the general purpose and intent of the provisions for subdivision and site plan review and approval." N.J.S.A. 40:55D-51a and b, but provides no such authority with respect to the requirements and standards of a zoning ordinance. Wawa, supra, 227 N.J. Super. at 34.
The difficulty in interpreting South Brunswick's land use ordinance stems from the ambiguity presented by the Township's obvious inclusion of the standards and requirements mandated in a site plan ordinance by N.J.S.A. 40:55D-41b, in a Division entitled "Design Standards" "within the general title of 'Zoning.'" See Cox & Koenig, New Jersey Zoning and Land Use Administration 165 (2016) (noting that although some municipalities include the four major components of a land use regulatory scheme, general procedures, subdivision regulations, site plan regulations and zoning regulations, in one ordinance, "the separate parts thereof are usually discernible").
Our review of this matter suggests it would be in the interest of the Township to amend its land use ordinance to remove the sources of ambiguity by separating out those provisions it has adopted pursuant to N.J.S.A. 40:55D-41b from those adopted pursuant to N.J.S.A. 40:55D-62, to avoid uncertainty for applicants and objectors as well as the necessity of interpretation by the municipal boards and the courts. --------
In Wawa, we criticized the trial judge for not considering himself bound by the fact that the parking space and driveway width requirements he characterized as design standards had been included in the municipality's zoning ordinance and were thus not waivable by the Planning Board. Wawa, supra, 227 N.J. Super. at 34. Such criticism is not warranted here.
Judge Hurley obviously grasped the difference between zoning and site plan ordinances and the significance of a municipal governing body determining to place a provision in one or the other. The problem confronting him was that the structure of South Brunswick's combined ordinance with its internally conflicting subtitles made it necessary to analyze the content of the particular provisions at issue in order to discern whether the governing body intended to allow the Board discretion to grant an exception from the requirement, thus treating the provision as a site plan regulation instead of a zoning provision for which relief would have to be by variance in accordance with Wawa. That the different parts of a combined land use ordinance are not easily discernible as in Wawa does not relieve a court of the burden of trying to divine legislative intent. When a court "is confronted with an ordinance that contains provisions that are . . . arguably inconsistent, [its] obligation is to reconcile those provisions, to read them so as to make sense of them, and then to apply the ordinance in accordance with the intent of the municipality." Rowatti v. Gonchar, 101 N.J. 46, 56 (1985).
Having reviewed the record, we are satisfied that Judge Hurley conscientiously, and correctly, considered and rejected each of Royal's arguments challenging the approvals granted to Pineville here. We affirm substantially for the reasons he expressed in his opinion of October 2, 2014.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION