Before Judges Skillman, Wells and Fisher. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4733-02.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 30, 2003
In Fieramosca v. Tp. of Barnegat, 335 N.J. Super. 526 (Law Div. 2000), Judge Serpentelli considered the question -- not previously addressed by our courts -- whether, in granting a land use application, a local agency is precluded from enforcing a condition if it failed to specifically include that condition in its memorializing resolution. We agree with Fieramosca that a local agency would not be so precluded and also conclude that the record in this case demonstrates that the Board intended to impose, even though not stated in its resolution, a condition for its approval. For that reason and in recognizing the absence of sufficient changed circumstances warranting a lifting of that condition, we affirm.
Plaintiff Park Center at Route 35, Inc. applied to the defendant Zoning Board of the Township of Woodbridge for a minor subdivision and various other approvals necessary for the creation of a strip shopping center. The application sought all the approvals necessary to construct a new shopping center building of nearly 10,000 square feet, together with a parking lot of seventy spaces. This parking lot was intended to serve the newly-constructed building and an existing medical building. According to the application, another structure, housing the"Park Sweet Shop," was to be demolished at some undefined point in the future, to provide for an additional six parking spaces.
Apparently because the"Park Sweet Shop" had been operating in this location for many years, Park Center proposed to the Board that its ultimate completion of the project occur in two phases. Phase I related to the construction of the strip shopping center building and the parking lot, as well as other aspects of the project. Phase II called for demolition of the sweet shop building to provide for additional parking spaces for the other commercial enterprises at the site. Demolishing the sweet shop building also served the purpose of alleviating what Park Center described, in testimony offered in support of the application, as a very serious safety hazard. However, because the sweet shop operator had a long standing presence in the community,*fn1 Park Center proposed that Phase II not occur immediately, but rather await the end of the sweet shop operator's lease.
As a result, on January 22, 1998, the Board adopted a resolution which granted minor subdivision and site plan approval, as well as all necessary use and bulk variances for the project. The Board did not impose any requirement as to when Phase II would occur and did not describe Phase II as a condition for the granting of the approvals necessary for Phase I.
The sweet shop operator chose not to renew his lease sometime in 2001. However, rather than move on to Phase II as promised when the Board granted approval, Park Center obtained a new tenant to lease the building as a pizza restaurant. The zoning office cited Park Center for failing to comply with the site plan requirements and, as a result, Park Center sought an amended minor site plan approval.
The Board denied this application, because it viewed Phase II as a condition for its approval and because it found an inadequate basis for a finding of changed circumstances which might permit alleviation from the previously imposed condition. This denial caused Park Center to file a complaint in lieu of prerogative writs. After a bench trial, Judge Hurley also concluded that the completion of Phase II was a condition for approval of Phase I and, for that reason, the denial of the application for an amended site plan was not arbitrary and capricious. This appeal followed.
Our review of the judgment is no different from the trial judge's review of the Board's determinations. We are to presume that the Board acted fairly and will not attempt to determine whether its decision was"wise or unwise." Kaufmann v. Planning Bd. of Warren Tp., 110 N.J. 551, 558 (1988). Instead,"[b]ound by the same scope of review as the Law Division," we defer to the broad discretion of a local land use agency and"reverse only if we find its decision to be arbitrary, capricious, or unreasonable." Bressman v. Gash, 131 N.J. 517, 529 (1993).
In the matter at hand, the Board acted reasonably in both recognizing that it had conditioned approval upon the completion of Phase II and in refusing to amend its prior approval when Park Center sought to avoid its obligation to perform Phase II. The record created in the proceedings before the Board compels the conclusion that the approval of the initial application was conditioned upon the later completion of Phase II. In so holding, we recognize that while the memorializing resolution itself does not state this requirement as a condition, that fact alone is not determinative. As Judge Serpentelli correctly observed in Fieramosca,"the adoption of the memorializing resolution is not the'decision' but merely a memorialization of that decision." Fieramosca, supra, 335 N.J. Super. at 533. Fieramosca correctly applied Sherman v. Harvey Cedars Bd. of Adj., 242 N.J. Super. 421, 430 (App. Div. 1990), where it was held that"[w]hile the resolution of the Board is certainly evidential on that issue, it is not determinative. The record is the best evidence of what the Board considered and decided." See also Allied Realty v. Upper Saddle River, 221 N.J. Super. 407, 415 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988); Orloski v. Bor. of Ship Bottom, 226 N.J. Super. 666, 678-79 (Law Div. 1988), aff'd o.b., 234 N.J. Super. 1 (App. Div. 1989). Accordingly, we agree with Judge Serpentelli's analysis in Fieramosca that the entire record before the local board must be considered to determine what was decided and whether a condition was imposed, notwithstanding the failure to include that condition in the memorializing resolution.
The record created on Park Center's application unmistakably demonstrates that approval for Phase I was conditioned upon the later completion of Phase II. In seeking approval, Park Center's application described its intentions with respect to the sweet shop structure in mandatory terms:"When all tenancies in said building terminate, said building will be demolished and Phase II will be implemented" (emphasis added). During the proceedings before the Board, Park Center also provided testimony as to the need to improve safety and enhance visibility in the area by removing the sweet shop structure. This testimony indicated in no uncertain terms the safety hazards which would be perpetuated by the continued existence of the sweet shop structure:
By eliminating in the future this existing Park Sweet Shop, it gives clear visibility, not only to our site but to the existing gas station for a safety factor. If you ever try to pull out of that Shell station coming alongside the existing Park Sweet Shop, you almost get killed trying to cross traffic. By eliminating that building... there will be clear visibility right across the site... and the safety factor will increase tremendously.
And the resolution itself, while not expressly describing the removal of the structure as a condition for the application's approval, does observe that"[t]he retail structure is proposed to be demolished and ...