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In re Hartz/Damascus Bakery

November 14, 2008

IN THE MATTER OF HARTZ/DAMASCUS BAKERY, INC.


On appeal from Final Decision of the New Jersey Meadowlands Commission, Agency File No. 07-195.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 24, 2008

Before Judges Parrillo, Lihotz and Messano.

Appellant, the Town of Secaucus (Secaucus), appeals from the May 15, 2007 grant of a zoning certificate by respondent, the New Jersey Meadowlands Commission (Meadowlands Commission or Commission), allowing Damascus Bakery, Inc. (Damascus) to retrofit an existing building in an industrial zone in the Hackensack Meadowlands District (District) for use as a bakery.*fn1

In seeking a remand for a plenary hearing, appellant contends that in issuing the zoning certificate, the Meadowlands Commission failed to comply with the requirements of its enabling legislation and its own administrative rules, and deprived interested parties of procedural and substantive due process. We disagree with these contentions, and affirm.

By way of background, under the Hackensack Meadowlands Reclamation and Development Act (Act), N.J.S.A. 13:17-1 to -84, the Legislature created the Meadowlands Commission as a subdivision of the State to coordinate the orderly, sensible and comprehensive development of approximately 21,000 acres of lands spanning parts of fourteen municipalities in Hudson and Bergen Counties, including part of Secaucus (Hudson County). N.J.S.A. 13:17-1. To this end, the Legislature vested the Meadowlands Commission, an agency to "transcend municipal boundaries," with broad powers to plan for the physical development of lands within its boundaries and to adopt and enforce codes and standards to effectuate planning and development. N.J.S.A. 13:17-6(i). See also N.J.S.A. 13:17-6(j), (k), (r) and (t).

Pursuant to authority granted under the Act, the Meadowlands Commission prepared and adopted a Master Plan embodied in the agency's official zoning map. The zoning map denotes some areas for development (e.g., highway commercial, light industrial A and B zones, low density residential) and other areas for limited development (e.g., environmental conservation and waterfront recreation). N.J.S.A. 13:17-6(i); N.J.S.A. 13:17-9; N.J.A.C. 19:4-3.4. The Act also directs that the Master Plan contain provisions and criteria for the location and use of buildings, structures, and facilities and land for solid waste disposal, and may include provisions for a host of other matters such as sewage, water supply, housing standards, transportation, distribution of population density, etc.

N.J.S.A. 13:17-11(a). The Plan may also contain codes and standards covering land use, comprehensive zoning, subdivisions, building construction and design, and the control of water, air pollution and solid waste disposal. N.J.S.A. 13:17-11(b). As such, the Meadowlands Commission has adopted comprehensive land use planning, site plan and zoning requirements for regional development of the Meadowlands. See N.J.A.C. 19:4-1 et seq. (District zoning regulations); N.J.A.C. 19:6 (building code).

Under the Act, no building or structure may be constructed or altered in the District unless the Meadowlands Commission shall first issue a permit approving the plans and specifications for the proposed construction or alteration as being in conformity with the Master Plan. N.J.S.A. 13:17-12(a). Furthermore, before any such permit is issued, the Chief Engineer of the Meadowlands Commission must issue a certificate verifying that the proposed construction or alteration meets the engineering standards adopted by the Meadowlands Commission. However, when an applicant meets the requirements for a zoning certificate, the Meadowlands Commission is obligated to issue the approval. N.J.S.A. 13:17-14.1; N.J.A.C. 19:4-4.5(e).

Although each constituent municipality may enact zoning ordinances and any other codes or standards for lands within the boundaries of both the municipality and the District, "no municipality shall enact or enforce any code which is inconsistent with the code contained in the master plan insofar as such code applies to property within the district . . . ."

N.J.S.A. 13:17-11(b). Further, municipalities must notify the Meadowlands Commission of all municipal amendments to their master plan, official map, zoning or subdivision regulations, and the granting of variances and special exceptions. N.J.S.A. 13:17-16(a).

Damascus is in the business of continuous production of flatbread products for retail sale. In March 2007, Damascus applied to the Meadowlands Commission for a zoning certificate to use an existing office/warehouse building, owned by Hartz Mountain Industries, Inc. and situated within Secaucus' town borders, as a wholesale bakery factory. The vacant building is located at the end of a strip of existing light industrial, warehouse and large commercial and business facilities in the District, in the Meadowlands Commission's Light Industrial A (LIA) zone. See N.J.A.C. 19:4-5.72 to -5.78. The LIA zone is "designed to accommodate on large lots a wide range of industrial, distribution, commercial and business uses that generate a minimum of detrimental environmental effects."

N.J.A.C. 19:4-5.72.

Damascus' proposed operation directly borders a residential area, within fifty feet of some residences, and lies approximately two-hundred and fifty feet from Clarendon Elementary School, a Secaucus public elementary school. As noted, the factory will operate 24/7 and will ship flour to and from the site using Enterprise Avenue, the street on which Clarendon Elementary School is located. Flour will be stored inside two silos installed inside the factory, and the factory will produce ethanol emissions, a natural byproduct of baking fermented doughs.

To build its bakery, Damascus had to make site improvements as well as interior alterations to the existing warehouse. As such, Damascus applied for a zoning certificate with the Meadowlands Commission on March 28, 2007. Its application represented that the building would be used for "continuous production of flatbread products" using "mechanical mixers, processing line, gas fired oven and cooling conveyors". In addition, "air and water [would] be filtered before discharged." Construction entailed "two new flour silos and a dough recovery system." Moreover, "167 off-street truck spaces" and "15 off-street customer spaces" would be provided for the facility.

Pursuant to N.J.S.A. 13:17-14.1, on April 2, 2007, the Meadowlands Commission gave written notice of Damascus' proposal by certified mail to the Mayor and Council of Secaucus, the mayors and councils of the surrounding eight counties, and the Hudson-Essex-Passaic Soil Conservation District. The notice letter described the action under Commission review as "a proposed change in use from a warehouse/office facility to a light manufacturing facility for baked goods, with related site improvements including two product silos." Included with the notice letter was a copy of Damascus' full, unedited application. The notice letter explained that if the recipients of the letter "have any objections or any comments to the enclosed application" ...


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