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Kite v. Township of Pennsville Planning Board

March 2, 2010

VONNIE KITE, PLAINTIFF, AND TERRI MORRIS, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF PENNSVILLE PLANNING BOARD, TOWNSHIP OF PENNSVILLE COMMITTEE, AND ANGELONI DEVELOPMENT, LLC, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Salem County, Docket No. L-0007-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 1, 2009

Before Judges Graves and Newman.

Plaintiff Terri Morris (Morris) appeals from a second amended judgment dated August 22, 2008, affirming a decision by defendant Pennsville Township Planning Board (Board)*fn1 that granted preliminary major subdivision approval, preliminary major site plan approval, and conditional use approval to defendant Angeloni Development, LLC (Angeloni), for a retail shopping center. After examining the record and applicable law in light of the arguments advanced on appeal, we affirm.

In January 2005, Angeloni, the contract purchaser of approximately seventy-eight acres designated as Block 4701, Lot 23, on the Pennsville Township Tax Map, filed an application with the Board seeking preliminary major subdivision and site plan approval together with all necessary variances and waivers to construct a Wal-Mart Supercenter together with a separate retail shopping center. After Angeloni submitted two amended applications to comply with Pennsville's Land Development Ordinance (LDO), its application was deemed complete on July 11, 2005.

On November 14, 2005, the Board commenced the first of ten public hearings on the merits of Angeloni's application. Multiple witnesses testified both for and against the application. In response to input from the Department of Transportation and the Board's experts, Angeloni modified its plan to allow access to the site by creating a road that bisected the property. Angeloni also added new storm water management provisions, withdrew its request for a gas station, and ultimately reduced the number of proposed subdivision lots from eight to four.

On September 25, 2006, the Board approved Angeloni's application, and the approvals were memorialized in a resolution adopted on November 13, 2006. On November 24, 2006, Terri Morris, a resident of Pennsville, appealed the Board's grant of use variances for signage to the Township of Pennsville Committee (Committee), pursuant to N.J.S.A. 40:55D-17 and Section 4.6B of the LDO. In addition, Morris filed a complaint in lieu of prerogative writs challenging each of the approvals granted by the Board and, after the Committee failed to render a timely decision as required by N.J.S.A. 40:55D-17, Morris filed an amended complaint challenging the Committee's approval of the Board's decision through inaction.

On September 24, 2007, Judge Farrell required James Tanyer, a former Board member, to attend a Board meeting so that he could be questioned regarding statements he allegedly made regarding Angeloni's application, and the Board could vote on whether or not he "exhibited a bias in favor of the applicant." After plaintiff's counsel questioned Tanyer at a Board meeting on November 19, 2007, the Board found that Tanyer's consideration of Angeloni's application was proper.

On January 9, 2008, the court conducted a trial on the merits, and Judge Farrell issued a comprehensive letter opinion on April 2, 2008, affirming the Board's decision except for the grant of variances pertaining to signage. The court remanded the issue of variances to the Board for further review and factual findings. In the interim, however, Angeloni's contract to purchase the property expired. On July 2, 2008, Angeloni withdrew its application from the Board's consideration and the remand hearing was never held. On August 25, 2008, the trial court entered a second amended judgment, which vacated the signage variances granted by the Board.

Plaintiff presents the following arguments on appeal:

POINT I

THE TRIAL COURT COMMITTED ERROR IN RULING THAT THE APPLICANT WAS NOT REQUIRED TO FILE AN AMENDED APPLICATION BECAUSE OF THE SUBSTANTIAL CHANGES MADE TO THE PROPOSED LAYOUT OF ...


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