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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 ...

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