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Berlin Cross-Keys Residents Against Walmart, Inc. v. Borough of Berlin Land Use Board

A-3713-07T1 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; NOTICES — Notice of an application for land use approval need not list the potential occupant’s name so long as the size and nature of the proposed project in the notice is accurate.

After a protracted legal battle, a developer got approval for a residential and commercial construction project. Construction of the residential portion began, but conflict continued over the construction of a major retail department store. The store was to include a supermarket, garden center, pharmacy, and automotive center. After land use approval for the store was granted, some local residents brought an action challenging the decision. The lower court dismissed the residents’ claims and affirmed the board’s approval of the project.

On appeal, the residents argued that the hearing notice was flawed because it did not mention the name of the store to be built and only referred to it as a retail commercial shopping center. The Appellate Division rejected this argument. The Court pointed out that the description in the notice did not have to be exhaustive, and found it adequate. It added that since the store did not have a finalized agreement to rent the site, it would have been inappropriate to list the store’s name and that the size and nature of the proposed project in the notice was accurate. The residents’ argument that the preliminary approvals for the project had lapsed over a three-year period in which the dispute ensued was also rejected. The Court found that although the three-year statutory protection period for preliminary approvals had passed, such approvals do not necessarily or automatically expire, especially where a municipality does not have a “sunset” ordinance under which preliminary approvals expire after a certain amount of time.

On the residents’ argument that modifications to the project constituted a substantial revision and therefore required a new approval process, the Court pointed out that there was no specific criteria or authority for making such a determination, but that such matters were determined on a case-by-case basis. It found that the board appropriately determined that the modification, which was to consolidate three separate retail operations into one large super center covering a smaller area, was not significant enough change to require a new approval process. The Court also pointed out that decisions made by land use boards were not to be reversed unless found to be arbitrary, capricious or unreasonable and agreed with the lower court that board’s decision was proper. As a result, it affirmed the board’s approval of the developer’s proposal for the construction of a large retail store.


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