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Gibson v. Township of Monroe Planning Board

A-3847-08T1 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; NOTICES — With respect to the description of a project, all a public zoning notice must contain is a common sense description of what the property would be used for under the application and need not be exhaustive in detail so long as the general public is fairly apprised of the nature and character of the proposed development.

A developer filed an application for a subdivision and for consolidation of six existing lots into two lots, an application for preliminary and final site plan approval, and for any necessary variances or design waivers. On one lot, it proposed to construct a super store that would include a general merchandise retail space, a supermarket, an outdoor garden center, a separate retail structure with eight tenants, a bank, and parking spaces. No development was proposed for the second lot. The lots were situated in a regional growth commercial zone. The zone had been amended a year earlier to expressly permit large scale anchor store developments. Upon receipt of the applications, the municipal planner concluded that no variances were required, just seven waivers.

The developer published public notice of a planning board hearing on the applications. Hearings were conducted over two days. The developer presented expert testimony from its engineer, regular architect, planner, traffic engineer, and special architect. All professionals were cross examined by counsel for two municipal residents. Their counsel also presented their own experts, including traffic, environmental engineers, and a professional planner.

After the board voted to grant both subdivision and site plan approval and to grant the requested design waivers, as memorialized in nine resolutions, those same two municipal residents filed suit challenging the board’s decision. The residents served subpoenas for the depositions of the mayor and a board member who they alleged were biased in favor of the developer’s applications, and of the municipal planner who they alleged had engaged in an improper conversation with the mayor at one hearing. They moved for a remand based on alleged deficiencies in the record. That motion was denied. Additionally, the residents moved to amend their complaint to add the municipal council as a defendant, and to add a count alleging spot zoning. The lower court also denied this motion. The lower court granted the developer’s motion for protective orders to bar the depositions. The Court found the attorney’s conversation involved matters not involving the application. The Court also found no municipal employee bias in favor of the applicants. Lastly, after a bench trial, the lower court affirmed the board’s grant of approvals to the developer. The residents appealed.

On appeal, the residents claimed that public notice was fatality defective because it failed to state that the proposed large scale retail anchor store was to include a twenty-four hour supermarket. The Appellate Division disagreed. The Court said a public notice must contain a common sense description of what the property would be used for under the application and need not be exhaustive in detail so long as the general public is “fairly apprised” of the nature and character of the proposed development. This particular notice advised the public that two retail buildings and a bank would be built and each was a permitted use under the zoning laws. The notice also gave the approximate size of the anchor store and the number of parking spaces. The supermarket qualified as a retail operation under the zoning ordinance, though not mentioned separately in the notice.

The Appellate Division upheld the lower court’s denial of a request to remand the matter to the board due to an incomplete record. The Court also agreed with the lower court that the challenged conversations between the mayor and board member at the hearing were unremarkable and were not material deficiencies in the record, requiring depositions.

Notably, the Court upheld the lower court’s finding that the mayor was not biased and predisposed toward granting the approvals. The residents, as proof of bias, submitted an article reporting that the mayor stated his support for the project because it would bring tax money and jobs to the municipality was proof of bias. The Court held these interests were ones the mayor shared with local townspeople and were not personal or private interests.

The Court also held the lower court did not err in affirming the board’s determination that mere waivers, and not variances, were required specifically in connection with the developer’s request that it not be required to provide a loading space and a trash enclosure for the proposed bank. The Court deferred to the board’s reliance on the testimony of the developer’s engineer who stated the bank would have no need for an oversized loading space because courier vans would fit in a normal parking space, and no need for an exterior trash facility because it would utilize a private service that could fit in a regular parking space remove trash daily.

Lastly, the Court found the lower court did not err in denying the residents the right to amend their complaint to add a claim for spot zoning. The Court said that a year before the present application was filed, when the municipality’s land management ordinance was amended to permit large scale anchor store developments as a principal use in the regional growth commercial zone, one of the residents in this matter had filed an earlier suit challenging the amendment as improper spot zoning. That residents agreed to dismiss the claim in that action with the right to reinstate it in future litigation. The Court found the lower court acted with appropriate discretion in denying a late amendment of the complaint during final trial preparation when the claim could have been asserted earlier. Further, the Court agreed that such a claim was weak because the ordinance’s amendments were not applicable to one property’s development, but to an entire development zone that already permitted commercial uses.

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