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Vidal v. Lisanti Foods

July 26, 1996

CARL VIDAL, PLAINTIFF-RESPONDENT,
v.
LISANTI FOODS, INC., MAIER'S BAKERY, AND BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EAST HANOVER, DEFENDANTS-RESPONDENTS. TOWNSHIP OF EAST HANOVER, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, V. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EAST HANOVER, LISANTI FOODS, INC., AND MAIER'S BAKERY, DEFENDANTS-RESPONDENTS.



Before Judges Petrella, Skillman and Eichen. The opinion of the court was delivered by Skillman, J.A.D.

The opinion of the court was delivered by: Skillman

The opinion of the court was delivered by

SKILLMAN, J.A.D.

On appeal from Superior Court of New Jersey, Law Division, Morris County.

Defendants Lisanti Foods, Inc (Lisanti) and Maier's Bakery (Maier's) are contract purchasers of approximately 17.8 acres of a 19.4 acre tract of land located on the eastern side of Ridgedale Avenue in East Hanover Township. The only development on the tract is three houses, two of which apparently have been demolished during the pendency of this litigation.

The entire tract is located within two professional business zones, PB-1 and PB-2, in which the permitted uses are single family residences, banks, municipal facilities, and professional and business offices. *fn1 The purpose of the PB-1 and PB-2 zones, as described in the Township's last adopted master plan, is to provide a transitional use between neighboring industrial and residential uses. The tract includes all of the only PB-2 zone in the municipality as well as all of one of the PB-1 zones.

Lisanti and Maier's both planned commercial development of the properties they have contracted to purchase. Lisanti, a nationwide distributor of pizza products, sought to construct an approximately 130,000-square-foot office and warehouse/ distribution center which would be its national headquarters. Maier's, a commercial bakery, sought to construct an approximately 9,000-square-foot facility consisting of a warehouse distribution center, offices and a retail outlet for the sale of thrift goods. *fn2

Although the office uses proposed within these development projects are permitted in the PB-1 and PB-2 zones, Maier's proposed retail sales outlet and both companies' planned warehouse distribution operations are not permitted and thus require use variances. In addition, the proposed development projects require subdivision approval to reconfigure the current four lots on the tract into three lots: one for Maier's; one for Lisanti; and one for an existing residence.

In 1993, Lisanti and Maier's filed applications with defendant East Hanover Board of Adjustment (the Board) for use variances and preliminary site plan approvals for their proposed projects. At the same time, Ridgedale Joint Venture, L.P., which currently owns the entire tract, filed an application for a minor subdivision. After conducting hearings, the Board voted to approve all of the applications. In its resolutions approving Lisanti's use variance application, the Board's essential findings and Conclusions, which were repeated almost verbatim in the resolution approving Maier's application, were as follows:

12. The need for PB-1 and/or PB-2 zoning for the subject property as a transition between the industrial zone and the 3 residences currently located on or near the subject property which existed at the time the current zoning ordinances were enacted no longer exists because 2 of those 3 residences are planned to be eliminated as part of the overall development of the subject property and the 1 residence which will remain will stand on a much larger lot than the one on which it currently stands.

21. The granting of the requested variances would result in a use that is not inconsistent with the intent and purpose of the zoning ordinances or the township master plan. The master plan states, "The basic overall objective of the Master Plan is to maintain East Hanover as a desirable community of largely one-family homes, while at the same time taking advantage of the township's location astride main transportation routes to encourage business and industrial development and provide a balanced tax base." (emphasis supplied). The site of the proposed use variance is near Route 10 and if the variance is granted it will enable the applicant to do exactly what the Master Plan suggests, i.e. take advantage of a main transportation route in the conduct of its business.

22. The subject property is particularly suitable for the proposed use because of its terrain, its proximity to Route 10, and its proximity to an industrial zone. In addition, the granting of the variance would result in an intensity of development of the property which would be much lower than the currently permitted use.

The Board's grant of a use variance to Lisanti was conditioned upon the applicant not permitting its vehicles "to stand on the property with their motors 'idling,'" making a "good faith effort to have trucks coming to and leaving its site come and go from the direction of Route 10 and avoid, to the extent possible, the use of local roads within the Township of East Hanover" and not permitting "local delivery vehicles" to depart from the site after 6:30 a.m. The Board imposed similar conditions upon the use variance granted to Maier's.

The Township of East Hanover and Carl Vidal, a resident of East Hanover, filed separate actions in lieu of prerogative writs challenging the use variances and related approvals. The trial court subsequently consolidated these actions. The court also denied a motion by Maier's to dismiss the East Hanover and Vidal actions on the ground that they were not filed within forty-five ...


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