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Shakoor Supermarkets, Inc. v. Old Bridge Township Planning Board

420 N.J. Super. 193, 19 A.3d 1038 (App. Div. 2011)

ZONING; APPEALS — Where an objector had full opportunity to examine evidence and cross examine witnesses at open hearings, it is not a fatal flaw to an zoning application’s approval if the land use board reviews the drawings submitted by the applicant after public had concluded provided those drawings only reflect changes that the applicant had agreed to make during the public hearings themselves.

In order to conform to a consent order from previous litigation, a municipality amended its redevelopment plan to be consistent with the development regulations for a designated retail zone. This was to enable a property owner to develop its property in conformance with the amended plan, subject to the explicit limitation that no single-user commercial building could exceed 150,000 square feet in floor area. That property owner applied to the municipality for preliminary and final site plan approval, and for variances and waivers. It proposed a 150,000 square foot retail building with an attached outdoor garden center of 7,200 square feet, a single retail building of 18,400 square feet, two separate restaurants totaling approximately 14,200 square feet, as well as a two-story office building of 29,190 square feet.

Pursuant to New Jersey law, the applicant published newspaper notices for each of the scheduled public hearings and also notified all property owners within 200 feet of the property. Four public hearings were held, each with numerous references to the fact that Walmart was the proposed tenant of the 150,000 square foot store. The application was approved, subject to various stipulations and conditions. A neighboring business filed a complaint in lieu of prerogative writs, challenging the approval. The lower court dismissed the complaint, finding that the public notice of the hearing was sufficient; the municipality’s traffic analysis was diligent; and no variance was needed where the proposal included a 150,000 square foot single-use commercial building because it did not violate either the redevelopment plan or the settlement agreement.

In its appeal, one of the objectors at the board hearing challenged the sufficiency of the public notice because it failed to disclose that the 150,000 square foot retail store would be a Wal-Mart Supercenter which would itself contain multiple retail uses. The Appellate Division was satisfied that the notice’s description of a “main retail store” adequately informed laypersons that a major “big box” store was proposed for the site and alerted them to the possible concerns, such as the significantly increased traffic commonly associated with those stores. Although the proposed store included multiple retail uses, all were permitted uses under the redevelopment plan.

The objector then argued that the 7,200 square foot garden center should have been added to the 150,000 square foot building, making it too large. However, New Jersey law defines a building as a combination of materials to form a construction adapted to permanent, temporary or continuous occupancy and having a roof. The outdoor garden center was neither to be housed under the structure’s roof nor located within the building’s four walls. Thus, the Court found that no variance or amendment was required to comply with the square footage limitation.

Finally, the objector argued that the municipality allowed the applicant to submit a plan that was voted upon outside a public hearing and without cross-examination, in violation of state law, resulting in a procedure that was arbitrary and capricious. At the conclusion of testimony, the municipality had instructed the applicant to submit revised plans to show the changes discussed at the public portion of the meeting that night and scheduled the next meeting for only municipal comment and a vote. The applicant returned with revised plans that reflected all of the changes agreed-upon at the prior public meeting, the municipality’s professional consultants confirmed that the revised plans were consistent with the testimony provided by the applicant at the prior public hearing, and the municipality voted to approve the plan. The Court noted that the objector did, in fact, have the opportunity to cross-examine all witnesses regarding the application and that no new witnesses were presented after the public portion of the hearing was closed. At oral argument, the objector conceded that it could not identify any aspect of the final plans to which it would have objected and as to which it was denied the opportunity to present its objection at the public hearings. As a result, the Court found that the municipality’s decision to end cross-examination could not be considered unreasonable and any error in closing the public portion of the hearing and failing to vote on the matter in a public session was harmless.

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