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Concerned Citizens for a Better Hillsborough, Inc. v. Hillsborough Township Planning Board

A-0043-01T1 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; SHOPPING CENTERS; DEFINITIONS—There is no commonly accepted definition of a community shopping center, and if a municipality wants to define one by size, it will need to do so explicitly.

As the partial outgrowth of a Mount Laurel builder’s remedy suit, a municipality revised its zoning ordinance to permit a Community Shopping Center within the zoning district where the developer’s land was located. The ordinance did not define the term “Community Shopping Center” and it did not “otherwise impose a square footage limitation on such a use.” Instead, it spoke about a “Community Shopping Center including retail sales of goods and services, free standing restaurants, outdoor garden centers, theaters and dinner theaters.” The developer applied for site plan approval for a 394,000 square foot shopping center, including 25,000 square feet of office space. After six public hearings, the planning board approved the site plan. One issue before the board was the definition of a “Community Shopping Center.” The developer’s expert addressed the issue by opining that size was no longer a valid criteria for such a definition and that a shopping center should be defined by the nature of the stores and the trade area it serves. A neighborhood group brought suit, seeking to set aside the site plan approval as arbitrary, capricious, and unreasonable “because it permitted the construction of a Community Shopping Center which exceeded the square footage limitation imposed by law.” The lower court found that the planning board had heard and relied upon relevant testimony to the effect that the term “Community Shopping Center” was not defined by square footage. The lower court also rejected the objector’s argument that “there was a commonly accepted, standard definition of community shopping center, finding no legal support for that conclusion.” Actions by planning boards are “presumed to be valid, and the court’s review is limited to whether the action was so arbitrary, unreasonable or capricious as to amount to an abuse of discretion. The burden of proof rests with the challenging party.” The Appellate Division agreed, finding no support for the contention that “the term Community Shopping Center is defined, within certain portions of the planning community, in terms of square footage permitted.” Consequently, “the planning board acted within its discretion in accepting the interpretation offered by the planning expert.”


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