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Manalapan Realty, L.P. v. Township Committe of the Township of Manalapan

March 14, 1994

MANALAPAN REALTY, L.P., PLAINTIFF-RESPONDENT-CROSS-APPELLANT,
v.
TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MANALAPAN AND THE TOWNSHIP OF MANALAPAN, DEFENDANTS-APPELLANTS-CROSS-RESPONDENTS.
MANALAPAN REALTY, L.P., PLAINTIFF-RESPONDENT-CROSS-APPELLANT,
v.
MANALAPAN TOWNSHIP PLANNING BOARD, DEFENDANT-APPELLANT-CROSS-RESPONDENT.
HOME DEPOT U.S.A., INC., INTERVENOR-RESPONDENT-CROSS-APPELLANT,
v.
TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MANALAPAN, THE TOWNSHIP OF MANALAPAN AND MANALAPAN TOWNSHIP PLANNING BOARD, DEFENDANTS-APPELLANTS-CROSS-RESPONDENTS.



Judges Michels, Skillman and Wefing.

The opinion of the court was delivered by: Skillman, J.A.D.

Argued December 7, 1993

Wefing, J.S.C., temporarily assigned, filed opinion concurring in part and dissenting in part.

This appeal requires us to determine the validity of an amendment to the Township of Manalapan's zoning ordinance which excludes from Manalapan's C-1 regional commercial shopping center district "[r]etail stores ... engaged in the sale of lumber or building materials or storing, displaying, or selling materials outside a completely enclosed building."

Plaintiff Manalapan Realty, L.P. (Realty) is the owner of a fifty-seven acre tract which is the site of a shopping center known as the Manalapan Mall. Realty filed an application with the defendant Manalapan Township Planning Board (the Board) for preliminary site plan approval for a substantial expansion of the Mall. The proposed expanded Manalapan Mall is designed to include several anchor stores, one of which would be a home improvement center operated by intervenor Home Depot U.S.A., Inc. (Home Depot).

One of the issues raised at the hearings on Realty's application for preliminary site plan approval was whether the proposed Home Depot facility would be a "retail store," which would be a permitted use, or a "warehouse," which would be prohibited. Relative to this issue, evidence was presented that a Home Depot store engages in the bulk storage of merchandise both inside and outside its premises, and that it makes substantial direct sales to contractors. At the hearings before the Board, substantial public opposition to the proposed Home Depot store emerged. This public opposition resulted in the defendant Township Committee adopting an amendment to the zoning ordinance which excludes retail stores which sell lumber or building materials or which store, display, or sell materials outside the premises from the C-1 regional commercial shopping center district.

The Board subsequently passed a resolution granting Realty's application for preliminary site plan approval. This resolution recognized that Manalapan's amended zoning ordinance would preclude the operation of a Home Depot store within the regional commercial shopping center district. This resolution also recognized that Realty had filed suit challenging the amended ordinance, and it expressed the Board's uncertainty whether the proposed Home Depot store would be a permitted use under the prior zoning ordinance even if the amended ordinance were invalidated:

In the event that this ordinance amending the permitted uses in the C-1 zoning district is ruled invalid by a Court of competent jurisdiction, the prior C-1 zoning district regulations will be in effect and those regulations do not include warehouses as a permitted use....

A Home Depot store and similar stores present elements of both retail and warehouse uses. These stores are a new concept and may not be a permitted use in any existing zoning district in the Township. The Township's master plan and zoning ordinances should be examined to determine whether these mixed use retail/wholesale stores should be permitted in a specific zone or zones.

Realty filed two prerogative writ actions, one challenging the validity of the amended zoning ordinance and the other challenging the part of the Board's resolution which left unresolved whether the proposed Home Depot store would be a permitted use under the prior ordinance. The trial court consolidated these actions. Subsequently, it granted Home Depot leave to intervene as a plaintiff. After a six day bench trial, the trial court issued a written opinion which concluded that the amendment to Manalapan's zoning ordinance was arbitrary and capricious and therefore invalid. The trial court also concluded that the proposed Home Depot store was a permitted use under Manalapan's prior zoning ordinance, which was reinstated as a result of the invalidation of the amended ordinance. Consequently, the trial court vacated the paragraphs of the Board's resolution which had left this question for later resolution in the event the ordinance were invalidated. Thereafter, Realty and Home Depot filed motions to compel defendants to reimburse them for various litigation expenses. These motions were granted in part and denied in part.

The Township Committee appeals from the parts of the judgment declaring that the amended zoning ordinance is invalid and that the proposed Home Depot store is a permitted use under the now reinstated prior ordinance. The Township Committee also appeals from the post-judgment order awarding Realty and Depot various litigation expenses. The Board appeals from the part of the judgment which declares the Home Depot store to be a permitted use and from the post-judgment order awarding plaintiffs various litigation expenses. Realty and Home Depot cross-appeal from the parts of the post-judgment order which denied an award of the full amount of litigation expenses which they had sought. We consolidate the two appeals.

We conclude that the essential parts of Manalapan's amended zoning ordinance excluding retail stores which sell lumber or building materials or which store, display, or sell materials outside a completely enclosed building from the regional commercial shopping center district are valid. Although the definition of "building materials" contained in this amended ordinance may be too broad, any invalid part of that definition would be severable from the remainder of the ordinance and thus would not affect its validity. Our conclusion that Manalapan's amended zoning ordinance is valid makes it unnecessary for us to decide whether a Home Depot store would have been a permitted use under Manalapan's prior zoning ordinance. Our reversal of the judgment in plaintiffs' favor also requires a reversal of the post-judgment order awarding them various litigation expenses.

[1][2] "A zoning ordinance is insulated from attack by a presumption of validity...." Riggs v. Township of Long Beach, 109 N.J. 601, 610-11, 538 A.2d 808 (1988). This presumption may be overcome only "by a showing that the ordinance is 'clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning or the [zoning] statute.' " Id. at 611, 538 A.2d 808 (quoting Bow & Arrow Manor v. Town of West Orange, 63 N.J. 335, 343, 307 A.2d 563 (1973)). Moreover, unless a zoning ordinance infringes upon a fundamental right, there is no requirement that it recite "tangible, specific objectives promoted by the ordinance in order to be valid." Zilinsky v. Zoning Bd. of Adjustment of Verona, 105 N.J. 363, 371, 521 A.2d 841 (1987). Instead, the municipality may rely entirely upon planning objectives first identified during litigation defending the validity of ordinance, and "[t]o sustain a constitutional attack, plaintiff must rule out any set of facts that reasonably supports the ordinance." Ibid. The reason for this limited judicial role in reviewing the validity of a zoning ordinance was explained in Kozesnik v. Township of Montgomery, 24 N.J. 154, 167, 131 A.2d 1 (1957):

The zoning statute delegates legislative power to local government. The judiciary of course cannot exercise that power directly, nor indirectly by measuring the policy determination by a judge's private view. The wisdom of legislative action is reviewable only at the polls.

[3][4][5] Consequently, a municipality has broad discretion in deciding whether to create a shopping center district within its boundaries. See Gartland v. Borough of Maywood, 45 N.J.Super. 1, 6-7, 131 A.2d 529 (App.Div.), certif. denied, 24 N.J. 339, 131 A.2d 903 (1957). If a municipality chooses to create such a district, it has equally broad discretion regarding the types of stores which it will permit to operate within the district. See Pierro v. Baxendale, 20 N.J. 17, 118 A.2d 401 (1955); Van Corp. v. Mayor & Council of Ridgefield, 41 N.J.Super. 74, 124 A.2d 48 (App.Div.), certif. denied, 22 N.J. 227, 125 A.2d 440 (1956); 420 Broad Ave. Corp. v. Borough of Palisades Park, 137 N.J.L. 527, 61 A.2d 23 (Sup.Ct.1948). A municipality may permit those retail stores which it feels will serve the most important needs of its citizens, but prohibit those stores which serve less important or immediate needs or which interfere with the operation of other businesses. A municipality also may prohibit a specific type of business operation based on aesthetic considerations. N.J.S.A. 40:55D-2(i); cf. Zilinsky v. Zoning Bd. of Adjustment of Verona, supra, 105 N.J. at 368-70, 521 A.2d 841.

[6] Manalapan's amended zoning ordinance permits "[r]etail stores, shops, and markets including establishments engaged in the selling of paint, glass, wallpaper, or hardware items for household use," but prohibits "any establishment engaged in the sale of lumber or building materials or storing, displaying, or selling materials outside a completely enclosed building" in the C-1 regional commercial shopping center district. The amended ordinance defines "building materials" as:

Materials that can be arranged, united or joined to construct a building or structure. Such materials include, but are not limited to, rough or dressed lumber, millwork, roofing, shingles, wallboard, molding, plywood, sheetrock, bricks, doors, windows, paneling, concrete block, tiles, cabinets, or plumbing fixtures.

The Township gave the following reasons, among others, for the adoption of this amendment:

The building supply business has unique characteristics since it serves wholesale customers (contractors) as well as retail customers, generates significant truck traffic related to the pick-up and delivery of building materials, and ...


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