On appeal from the Superior Court, Law Division, Cape May County.
Furman, Shebell and Stern. The opinion of the court was delivered by Furman, P.J.A.D.
Upon prerogative writ attack, the Law Division struck four conditions imposed by defendant planning board in granting plaintiff preliminary site plan approval for a convenience food market, which is a conforming use, at the intersection of Dune Drive, a main business street, and 31st Street, a side street, in the Borough of Avalon. The trial court also awarded counsel fees and costs of $2,005.14 against defendant planning board. We affirm in part and reverse in part.
The same Law Division Judge had previously entered a final judgment in August 1985 reversing the denial of preliminary
site approval and directing the grant of preliminary site plan approval "subject to reasonable conditions determined by the Board." He did not retain jurisdiction. In his opinion letter he rejected as without "a shred of competent sworn testimony" to support it defendant planning board's conclusion that there was "a serious safety problem created by this application." With respect to concerns for pedestrian and vehicular safety expressed in Police Lieutenant Taylor's recommendation against a driveway to the premises from Dune Drive, the trial judge noted conformity of the proposed driveway with the applicable borough ordinance. He suggested:
That final judgment of August 1985 was not appealed. Without further testimony or evidence before it defendant planning board in September 1985 granted preliminary site plan approval subject to five conditions. One concerning the procedure for final review by other agencies with jurisdiction is not challenged on this appeal. The four conditions under attack on this appeal are as follows:
1. The subject building shall be resited so as to face Dune Drive and not 31st Street.
2. There shall be no parking in front of the building and the building shall be in close proximity to the minimum Dune Drive setback.
3. The curb cut on Dune Drive shall be deleted.
4. The subject building shall be required to comply aesthetically with the neighborhood, especially contiguous properties, both existing and proposed.
Defendant planning board's resolution recited its concern "for safety factors, traffic flow both ingress and egress, and on-site circulation problems at the subject site."
Plaintiff proceeded by order to show cause why it "should not receive supplemental relief by reason of Defendant's failure to comply with the aforesaid final judgment," specifically why the four challenged conditions should not be stricken. At the argument of the order to show cause, the trial ...