On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. GLO-L-2124-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Messano.
Plaintiff James Aubrey appeals from an order entered on June 29, 2006 granting summary judgment in favor of defendants, dismissing the complaint in lieu of prerogative writs. We affirm.
Plaintiff is an objector to a commercial development project that was granted preliminary and final site plan approval by defendant Deptford Township Planning Board (Board). In January 2004, defendant AIG Baker Real Estate, LLC (AIG) made an application to the Board for preliminary and final site plan approval "for a number of retail uses together with site improvements," which included "two major anchor stores, four large retail spaces, smaller shops, pad sites, and a gas station." The proposed project was to be built on property located in a Business Commercial Two Zone, as designated in the Unified Development Ordinance of Deptford Township (UDO). The zone permits "(1) shopping centers, when part of a planned commercial development; (2) garden centers; and (3) automobile service stations, including facilities for the retail sale of gasoline." The initial application required some variances and waivers in order to comply with the UDO. After hearings, which included strong opposition voiced by the public, the Board denied the application on June 9, 2004.
In August 2004, AIG submitted a revised plan that conformed to the ordinance after removing the features that required variances and design waivers. The Board held several hearings, during which the public again expressed strong opposition to the project, particularly with respect to reports that Wal-Mart would be one of the anchor tenants. While the revised application was pending, the Deptford Township Council adopted two ordinances to exclude or regulate certain uses: Ordinance 0.16.04, which directly affected the pending site plan application, and 0.17.04, which regulated hours of operation for selected businesses within the township. After a public hearing on October 6, 2004, the Board again denied the application, this time applying the newly-adopted ordinances.
On October 25, 2004, AIG filed a complaint in Superior Court contesting the two newly-adopted ordinances on procedural and substantive grounds, alleging that they were unconstitutional. The Board removed the case to the Federal District Court on the ground that the complaint included federal civil rights claims under 42 U.S.C. § 1983. AIG moved for partial summary judgment and, on July 28, 2005, Freda L. Wolfson, U.S.D.J., found that the two ordinances adopted during the pendency of AIG's application were unconstitutional and could not be applied to the application. She found further that the application fully conformed to the Township's prior ordinances. Nevertheless, she declined to approve the site plan and remanded it to the Board for completion of public comment and a final decision, thereby allowing the Board to make its final decision based upon the entire record, including any additional evidence presented. The Board subsequently approved the application on September 21, 2005, and adopted a resolution memorializing the approval on November 9, 2005.
On December 23, 2005, plaintiff filed a complaint in lieu of prerogative writs against AIG and the Board seeking to void the preliminary and final site plan approval. On June 29, 2006, the trial court granted summary judgment in favor of defendants dismissing the complaint. The court's letter opinion provides a detailed finding of facts and analysis of the issues, concluding that plaintiff had not met his burden of proving that the Board's decision was arbitrary, capricious or unreasonable. Although the court found that it was bound by Judge Wolfson's findings of fact and conclusions of law under the doctrine of collateral estoppel, it determined that "even if the decision of Judge Wolfson is given no weight by this [c]court, the same decision results."
In this appeal, plaintiff argues:
THE TRIAL COURT COMMITTED ERROR BY UTILIZING THE "ARBITRARY, CAPRICIOUS AND UNREASONABLE" STANDARD TO ANALYZE THE PURELY LEGAL ISSUE OF WHETHER THE IMPROVEMENTS PROPOSED BY AIG BAKER CONSTITUTE A "SHOPPING CENTER" AS DEFINED BY DEPTFORD'S UNIFIED DEVELOPMENT ORDINANCE.
THE TRIAL COURT COMMITTED ERROR BY HOLDING THAT THE DOCTRINE OF COLLATERAL ESTOPPEL APPLIED TO ...