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Berlin Cross-Keys Residents Against Walmart, Inc. v. Borough of Berlin Land Use Board


February 3, 2009


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1596-07.

Per curiam.


Argued December 17, 2008

Before Judges Parrillo, Lihotz and Messano.

This matter concerns one of two actions consolidated by the Law Division for trial.*fn1 It involves a long standing dispute regarding the development of property owned by defendant Haverhill, a New Jersey partnership. Plaintiff Berlin Cross-Keys Residents Against Wal-Mart, Inc. (the residents) appeal from the dismissal of their Complaint in Lieu of Prerogative Writs, which challenged the adoption of Resolution No. 06:7-11 by defendant Borough of Berlin Land Use Board (Board). The resolution granted amended preliminary and final major site plan approval to defendant Berlin Cross-Keys Shopping Center Associates, LLC (Cross-Keys) to construct a 215,000 square foot retail store, a bank and drive-through restaurant on Haverhill's site. Following our consideration of the parties' arguments presented on appeal and our review of the record and applicable law, we affirm.

We give a brief history of the longstanding litigation regarding Haverhill's larger development, which included residential construction, as well as the commercial parcel at issue in this appeal. Haverhill owned an undeveloped one hundred (100) acre tract located at the intersection of Berlin Cross-Keys Road and Watsontown-New Freedom Road in Berlin Borough, Camden County (Borough). A builder's remedy action, filed pursuant to Mount Laurel II,*fn2 was initiated by Haverhill following the denial of approvals for Haverhill's development plans. The Borough was adjudicated noncompliant with the Mount Laurel II mandate.

In 1989, after further proceedings, a Final Judgment was entered approving the Borough's affordable housing compliance proposal and granting a six-year period of repose from further litigation. The Judgment attached a conceptual plan for the residential and commercial development on Haverhill's tract. A later order granted Haverhill preliminary subdivision and site plan approval, nunc pro tunc to June 12, 1989.

Disputes continued regarding the components of the development and the parties returned to court. In 1995, a settlement agreement granted Haverhill preliminary subdivision and site plan approval for the entire project and final subdivision approval for the project's residential components. The stipulation provided, "[a]ll future reviews of the Haverhill development shall be conducted by the [B]orough [C]ouncil acting as a planning board." Further disagreements caused Haverhill to seek court intervention to achieve enforcement of the settlement agreement terms. On December 12, 2001, a Law Division order granted Haverhill's requested relief and provided in pertinent part:

2. The Development Plans prepared by Gudmund S. Winters & Associates revised to February 15, 1995 and the development plans prepared by Key Engineers, revised to date, are herby deemed to be and are declared to constitute the approved Preliminary Subdivision and Site Plans and the approved Final Subdivision Plans for the development. Preliminary and final approval shall vest in the plaintiff and developer all rights set forth in the Municipal Land Use Law, N.J.S.A. 40:55D-1, et seq., that flow from and with preliminary and final subdivision and/or preliminary site plan approval which shall extend for a period of three (3) years from the date of this Order.

5. Final site plans submitted for approval of any of the commercial sections of the development shall be in compliance with the terms and conditions of the Borough's site plan and zoning ordinances, except as modified by the Settlement Agreement between the parties, and the prior Orders of the Court.

The site plan document attached to the December 12, 2001 order provided for commercial development of 29.62 acres of the parcel, designated as Lot 1, Block 2201 of the Borough tax map.

The design reflected 255,100 square feet of retail space proposed as three large contiguous pad sites totaling over 218,000 square feet and the four smaller noncontiguous pad sites, all accessible by Berlin Cross-Keys Road.

At this time, Cross-Keys had assumed the role of developer from Haverhill. After additional conflicts followed the Borough's attempt to rezone the tract, construction of the residential development, comprising single family homes and the forty units of affordable housing, finally commenced.

On January 31, 2006, Cross-Keys submitted an application to the Borough Council seeking "[a]mended preliminary major site plan approval and final major site plan approval for the construction of an approximately 225,000 square foot retail store . . . ." The Borough Council scheduled review of the application for its regular meeting on June 19, 2006.

The proposed amended site plan submitted with the application for commercial development depicted three pad sites for construction including a 217,062 square foot retail store with garden center, supermarket, pharmacy and tire and lube express, along with two noncontiguous smaller sites for a 5,050 square foot restaurant and 3,710 square foot bank. Cross-Keys received notice from the Borough's Zoning Official that the building configurations in the application differed from the Winters & Associates plans on file "for the same location" and a host of discrepancies in the application were identified. Cross-Keys was advised by the zoning official to have its application "proceed through the regular Site Plan to Planning Board steps." After further discussion, Cross-Keys agreed to transfer its application to the Board to "hear and decide the application."

On August 14, 2006, the application was presented to the Board, which assumed jurisdiction. Citing the 1995 Stipulation of Settlement, Cross-Keys objected, arguing it had not agreed to transfer jurisdiction to the Board, but rather consented to allow the Board to hold a public hearing and make recommendations to the Borough Council, which would approve or deny the application. The Board denied Cross-Keys' application without prejudice, finding:

(a) The applicant did not satisfy all of the jurisdictional and procedural requirements of applicable Borough ordinances including the failure to timely apply for the appropriate approval, failing to timely pay the correct application and escrow fee, failing to submit the proper number of applications, plans and reports, submitting revised development plans in an untimely manner and preventing the Planning Board engineer from performing a review and issuing a report for the Planning Board, applicant and the public and in otherwise being procedurally deficient with the application.

(b) The applicant failed to give the Planning Board the opportunity to receive the review, recommendations and reports of its professional staff including the Planning Board engineer by not agreeing to a continuance of the application in order to afford the Planning Board engineer time to review the revised development plans and issue a report.

(c) The Board also found that the applicant did not accept the jurisdiction of the Planning Board to hear and decide the application.

The Board's decision triggered Cross-Keys' motion to the Law Division for a default approval. The parties again struck an accord and submitted a consent order memorializing their agreement to allow the Board rather than the Borough Council to review the application. Public notice of the application was issued, N.J.S.A. 40:55D-12,*fn3 and a public hearing was scheduled for October 10, 2006. The hearings continued on November 13, 29, and December 19, 2006. At the conclusion of the December 19, 2006 meeting, the Board conditionally approved Cross-Keys' application by a five to four vote. The approving resolution was adopted on February 12, 2007, and notice of the Board's decision was published on February 22, 2007.

The residents filed the Complaint in Lieu of Prerogative Writs, which challenged the Board's granted approvals and sought "[a]n order voiding and setting aside the Amended Preliminary and Final Major Site Plan Approvals granted to [Cross-Keys]." After a hearing, Judge Orlando entered final judgment, affirming the Board's decision "granting Amended Preliminary Major Site Plan and Final Major Site Plan approval to construct an approximately 215,000 square foot Wal-Mart super-retail store and Amended Preliminary Major Site Plan approval to construct an approximately . . . 3,700 square foot bank pad site with a drive-thru and an approximately 5,000 square foot restaurant . . . ." The order dismissed the residents' complaint with prejudice. This appeal followed.

The residents first challenge the adequacy of the public notice issued by Cross-Keys, arguing it failed to properly describe "the nature of the matters to be considered" by the Board. The published notice described the project as a commercial development on a portion of Block 2201, Lot 1, located at the corner of Berlin-Cross-Keys Road and Watsontown-New Freedom Road, and being known as part of Block 2201, Lot 1 on the Berlin Borough tax map. The Applicant seeks final major site plan approval for an approximately 228,750 square foot retail commercial shopping center, exclusive of 2 pad sites.

The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, requires developers to publish public notice at least ten days prior to a hearing on an application for development.

N.J.S.A. 40:55D-12. Further, the Notices . . . shall state the date, time and place of the hearing, the nature of the matters to be considered and . . . an identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the municipal tax assessor's office, and the location and times at which any maps and documents for which approval is sought are available pursuant to subsection 6b [N.J.S.A. 40:55D-10].

[N.J.S.A. 40:55D-11.]

The purpose for notifying the public of the "nature of the matters to be considered" ensures those "affected by the nature and character of the proposed development are fairly apprised thereof so that they may make an informed determination as to whether they should participate in the hearing or, at the least, look more closely at the plans and other documents on file." Perlmart v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 237-38 (App. Div. 1996). Relying on our holding in Perlmart, the residents assert Cross-Keys' notice omitted a critical element of the use of the property subject to the application. Ibid. The essence of the residents' contention is Cross-Keys' notice was defective because it deceptively referred to construction of a "commercial shopping center" not a Wal-Mart super-store and, further, the notice failed to mention construction of the bank and restaurant.

The public notice published by the defendants in Perlmart stated the zoning and land use permit applications sought the creation of commercial lots in commercial zones, and "the minor subdivision [would] result in the creation of 3 commercial lots with a total of 42.53 acres." Id. at 237. The notice provided no other specific terms, it did not state the specific use was intended for a K-Mart, nor did it state conditional use approval was sought. We concluded the notice, using the abstract description of "3 commercial lots," failed to incorporate information "that would inform the public of the nature of the application in a common sense manner such that the ordinary layperson could intelligently determine whether to object or seek further information." Id. at 239.

A determination of the adequacy of the notice is a factual one. We will examine Cross-Keys' notice in the context of the challenges posed by the residents.

First, the suggestion the specific user must be named is meritless. The description in the notice need not be "exhaustive." Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adj., 397 N.J. Super. 335, 355 (App. Div. 2008). Neither the statute nor case law mandates such a requisite. Of importance, in this matter is the fact that Cross-Keys published the notice on September 30, 2006, at a time when Wal-Mart had not finalized an agreement to rent the site, making it inappropriate to mention a user by name.

Second, Cross-Keys never disguised the proposed use was "a big-box" store. Unlike the description in the notice we examined in Pond Run that used the phrase "retail/office" to describe a proposed large eat-in restaurant seeking a liquor license, id. at 350, here the description of "retail commercial shopping center" was neither deceptive nor misleading. This is additionally supported by the fact the residents chose the organizational name "The Berlin Cross Keys Residents Against Wal-Mart" when they formed during the Summer 2006. Further, in the course of the public hearings, Cross-Keys frequently mentioned the most likely users of the shopping center would be Wal-Mart or Target.

Third, the notice disclosed the development as a "228,750 square foot retail commercial shopping center exclusive of two pad sites." The local zoning and land use ordinance describes a "shopping center" as:

One or more buildings . . . designed as a unit to be occupied by two or more businesses, or departments of the business, operating as an integrated development, including, but not limited to parking, loading, access, lighting, landscaping, architectural features and coordinated signage. [Borough of Berlin, Ordinance 97-10 Ch. 355-2B, (Jun. 16, 1997) (emphasis added.)]

Cross-Keys' proposal fits squarely within that description. Thus, the description of a shopping center, coupled with the size, clearly established this was a large retail store.

We conclude Perlmart is not dispositive in this matter based on the significant factual differences in the notices utilized. We determine, as did Judge Orlando, Cross-Keys' notice effectively described the size and nature of the development, making it unmistakable the public was adequately informed, as required by N.J.S.A. 40:55D-11. In fact, Cross-Keys' application provoked "the largest public participation in the history of Berlin Borough," resulting in a changed meeting site to accommodate those attending. This further substantiates that any common sense reading of the notice made the development proposed instantly recognizable as a big-box type operation. Compare, Pond Run, supra, 397 N.J. Super. at 344 ("No members of the public appeared at the . . . meeting in opposition to the development.").

We easily dispose of the next claim of error. The residents maintain the December 12, 2001 order, granting preliminary site plan approval of the commercial component of the development lapsed. Pointing to the language in paragraph 2, the residents state the order by its terms required all rights vested under the order to expire three years after the filing date, or December 12, 2004. The suggestion the preliminary approvals lapsed at the end of three years is unsustainable.

The MLUL grants certain rights to those with preliminary site-plan approval. N.J.S.A. 40:55D-49. The statute's purpose "is to give a developer a reasonable period of protection from changes in the zoning law." Palatine I v. Planning Bd., 133 N.J. 546, 553 (1993), overruled in part by D.L. Real Estate Holdings, L.L.C. v. Point Pleasant Beach Planning Bd., 176 N.J. 126 (2003). The statute further provides protection to the applicant receiving preliminary approval from changes in zoning ordinances for three years, except zoning changes that "relate to public health and safety." N.J.S.A. 40:55D-49. In this matter, there is no evidence the approvals expired. The order's language did not mandate termination of the approvals after three years, but merely referred to "the developer's protection from the non-safety-related ordinance changes." D.L. Real Estate Holdings, supra, 176 N.J. at 135. Further, the Borough does not have a "sunset" ordinance requiring preliminary approvals expire if final approvals are not obtained within a set period of time. Thus, "[t]he developer may still build in accordance with the approval unless and until the project has become impermissible in some regard because of zoning law change." Ibid.

Next, the residents argue the amended site plan approval does not conform to the bulk area requirements set forth in the Borough's land use ordinance. Judge Orlando determined the amended plan was "substantially the same" as the plan approved by the court on December 12, 2001. The residents challenge this finding and argue, "significant and substantial differences exist between the plan granted preliminary site plan approvals in the December 12, 2001 order and the plan granted amended preliminary and final major site plan approvals[,] and these differences amounted to more than mere amendments." The residents argue the modifications required the application to be treated as a new application, subject to the current land use law ordinance requirements.

Judge Orlando upheld the Board's determination and noted:

[T]he plan approved by [the December 12, 2001 order] had four pad sites and a larger principal . . . building and was 255,100 square feet.

The present plan has eliminated two of the pad sites and has a smaller principal building and is 224,000 square feet.

It seems to the Court it would be anomalous to require a smaller project to comply with more stringent ordinance requirements when the original project approved . . . was not required to do so.

The residents maintain this review overlooks that the amended site plan depicted one "big box" structure on a 224,000 square feet footprint, while the original site plan portrayed three separate attached retail users, each of which was substantially smaller than the now proposed single user. Also, one of the two additional pad sites was thirty percent larger than any in the previously proposed site.

Developers have the right to modify filed applications to seek additional relief or to clarify the relief sought in the original applications. Davis v. Planning Bd. of Somers Pt., 327 N.J. Super. 535, 540 (App. Div. 2000). "There is no authority that defines what changes may be deemed significant or [a] substantial revision." Id. at 542. The determination is made on a case-by-case basis. Ibid. We provide these illustrations.

In Lake Shore Estates v. Denville Twp., 255 N.J. Super. 580, 592 (App. Div. 1991), aff'd o.b., 127 N.J. 394 (1992) the developer's amended application sought approval for development of twenty-eight additional acres. This court determined such a submission was a new application, subject to the current ordinances.

In Macedonian Orthodox Church v. Planning Bd. of Twp. of Randolph, 269 N.J. Super. 562, 565 (App. Div. 1994), the church received approvals for improvements to its existing church building, which included a parking lot and auditorium connected by a hallway to the existing structure. The auditorium was never constructed. Ibid. Years later, the church submitted plans for amended approval for construction of an all-purpose building and additional parking. Ibid. Both the newly proposed building and parking lot were larger and in a different location on the property than the original church building. Ibid. As a result of the enlarged specifications, certain environmental constraints on the site became an issue. Ibid. The Planning Board required an application for conditional use approval, as well as site plan approval. Id. at 568. Based on the changes in the proposal, this court determined "the Planning Board acted within the bounds of its discretion in deciding to review the application anew under the conditional use ordinance." Id. at 573.

"The standard of review used by courts in any challenge to a decision by a planning or zoning board is very limited." Davis, supra, 327 N.J. Super. at 542. A board's decision should be sustained if it "is founded on adequate evidence," Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990), giving deference to a board's findings of fact, because of its particularized knowledge of local conditions. Jock v. Zoning Bd. of Adj. of Wall, 184 N.J. 562, 597 (2005). Using that same standard, New York SMSA v. Bd. of Adj. of Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004), we do not disturb the Board's findings affirmed by Judge Orlando that the application for amended and final site plan approval did not require Cross-Keys' application be reviewed anew. Davis, supra, 327 N.J. Super. at 541. The overall scope of the project and square footage of the primary user and two pad sites were decreased. The original site plan called for one building used by three prospective retailer users; the amended plan decreased the size of the one building intended for one user. In this instance, the change in the primary user does not constitute a change in use.

We conclude the Board's findings, affirmed by Judge Orlando, are supported by the record. The modification of the preliminary site plan from three prospective businesses on the large primary site to one retail business with multiple departments of its business on a slightly smaller footprint was not a significant or substantial change. Accordingly, the grant of approvals was neither arbitrary, capricious, or unreasonable, nor an abuse of discretion. Burbridge, supra, 117 N.J. at 385; Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 560 (App. Div. 2004); Jayber, Inc. v. Municipal Council of W. Orange, 238 N.J. Super. 165, 173 (App. Div.), certif. denied, 122 N.J. 122 (1990).

Based upon our concurrence with the trial judge's determinations that the approvals did not expire, and the application was substantially similar to the preliminary site plan previously approved in the December 12, 2001 order, we need not discuss further the residents' argument suggesting Cross-Keys' application was subject to the current bulk and area standards of the zone where the property was situated necessitating variances. R. 2:11-3(e)(1)(E).

We find no basis to alter the Final Judgment entered by Judge Orlando, dated March 25, 2008, affirming the Board's grant of amended preliminary major site plan and final major site plan approval for the construction of Cross-Keys' commercial retail development and dismissing the residents' Complaint in Lieu of Prerogative Writs.


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