On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-273-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Alvarez.
Plaintiffs Phyliss Gibson and Michael Poponi, residents of Monroe Township, opposed the development that is the subject of this appeal. After an adverse conclusion of the prerogative writ action they brought, they now appeal from the judgment in favor of defendants Township of Monroe Planning Board (Board) and Penn Real Estate Group, Inc. (Penn), affirming the Board's grant of subdivision and site plan approval and related waivers allowing Penn to construct a Wal-Mart Super Center. Plaintiffs argue:
I. THE TRIAL COURT ERRED BY HOLDING THAT [PENN] HAD ESTABLISHED THE NECESSARY PROOFS TO OBTAIN ALL OF THE RELIEF REQUIRED BY ITS PROPOSED SITE PLAN.
II. THE TRIAL COURT ERRED BY HOLDING THAT THE PROCEDURES UTILIZED BY THE PLANNING BOARD DURING THE HEARING ON [PENN]'S APPLICATION DID NOT DEPRIVE PLAINTIFFS OF DUE PROCESS.
III. THE TRIAL COURT ERRED BY HOLDING THAT MAYOR GABIANELLI [SIC] WAS NOT BIASED AND PREDISPOSED TO GRANTING APPROVALS TO [PENN].
IV. THE TRIAL COURT ERRED BY HOLDING THAT [PENN]'S NOTICE MET THE REQUIREMENTS OF THE MUNICIPAL LAND USE LAW, N.J.S.A. 40:55D-1, ET SEQ., SUCH THAT THE PLANNING BOARD HAD JURISDICTION TO CONSIDER THE APPLICATION.
V. THE TRIAL COURT ERRED BY HOLDING THAT THE RESOLUTIONS ADOPTED BY THE PLANNING BOARD WERE NOT DEFECTIVE.
VI. THE TRIAL COURT ERRED BY DENYING PLAINTIFFS' MOTION TO REMAND THE MATTER TO THE PLANNING BOARD DUE TO A DEFECTIVE RECORD.
VII. THE TRIAL COURT ERRED BY DENYING PLAINTIFFS' MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT.
VIII. THE TRIAL COURT ERRED BY GRANTING THE PLANNING BOARD'S MOTION FOR PROTECTIVE ORDERS WHICH PRECLUDED PLAINTIFFS FROM DEPOSING MAYOR GABIANELLI [SIC] AND TIMOTHY KERNAN, PP.
On July 13, 2007, Penn filed an application for subdivision and consolidation of six existing lots in Monroe Township into two new lots, one 29.32 acres (Lot A) and the other 6.59 acres (Lot B). Penn also filed an application for preliminary and final major site plan approval, as well as any necessary variances or design waivers. It proposed to construct on Lot A:
(1) a 199,798-square-foot Wal-Mart Super Center which was to include general merchandise retail space, a supermarket, an outdoor garden center and a seasonal sales area; (2) a separate 16,000-square-foot retail structure with eight tenants; (3) a 4396-square-foot bank; and (4) 1101 parking spaces. No development was proposed on Lot B, which contained an existing Assembly of God Church.
Lot A and Lot B are situated in the Pinelands Protection Area. Lot A is also situated in the Township's regional growth commercial zone (RG-C), which, as amended in 2006, expressly permits planned large scale anchor store developments.
Upon receipt of the Penn applications, the municipal planner, Timothy Kernan, issued a review letter concluding that no variances and just seven waivers were required. Penn then published public notice of the Board hearing.
The Board conducted hearings on January 10 and 17, 2008. Penn presented testimony from its engineer, architect, planner, traffic engineer, and special architect dealing with topics including buffer plantings, the scope of the parking lot, the proposed bank's loading and garbage removal requirements, neighborhood traffic patterns, and the truck and other noise that would be generated by the proposed project. Penn also presented testimony from a Wal-Mart representative who discussed, among other things, the number and size of the trucks that would be making daily deliveries to the site. All of these professionals were cross-examined by plaintiffs' counsel. Additionally, plaintiffs' counsel presented testimony from his own experts, including a traffic and environmental engineer and a professional planner.
Members of the public addressed the Board on both hearing dates. Several nearby residents requested that their residential street be turned into a cul-de-sac to preclude its use as a thoroughfare by future Wal-Mart customers. Other residents requested additional buffering, the relocation of a large sign, and limits on truck delivery hours. Changes were made to accommodate these requests.
On January 17, 2008, the Board voted to grant Penn both subdivision and site plan approval, plus the requested design waivers. The decision was memorialized in nine resolutions adopted on January 24, 2008.
On February 14, 2008, plaintiffs filed their complaint against the Board and Penn challenging the Board's decision. Wal-Mart later intervened. In July 2008, plaintiffs served subpoenas for the depositions of Monroe Township mayor and Board member Michael Gabbianelli, whom they alleged had been biased in favor of Penn's applications, and Kernan, whom they alleged had engaged in an improper "off-the-record" conversation with Gabbianelli at the January 17, 2009 hearing. The Board and Penn moved for protective orders to bar the depositions, which the court granted. In August 2008, plaintiffs moved for a remand due to alleged deficiencies in the record, which the court denied. On October 14, 2008, plaintiffs filed a motion for leave to amend their complaint to add the town council as a defendant, and to add a count alleging spot zoning. The court also denied that motion.
After a bench trial on January 15, 2009, Judge Curio issued an oral decision affirming the Board's grant of approvals to Penn. Final judgment to that effect was filed on February 23, 2009. This appeal followed.
We first address the public notice issue. Plaintiffs argue in Point IV that the public notice was fatally defective because it failed to mention that the proposed large scale retail anchor store was to include a supermarket and operate twenty-four hours. We disagree.
Public notice of a hearing regarding an application for development of a major subdivision is required by N.J.S.A. 40:55D-12a. Such notice 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[,] . . . and the location and times at which any maps and documents for which approval is sought are available[.] [N.J.S.A. 40:55D-11.]
The critical element of a public notice is an accurate, common sense description of what the property will be used for under the application. Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 238-39 (App. Div. 2006). Although the notice need not be "exhaustive," the general public must be "fairly apprised" of the nature and character of the proposed development. Pond Run Watershed Assoc. v. Twp. of Hamilton Zoning Bd., 397 N.J. Super. 335, 351, 355 (App. Div. 2008); Perlmart, supra, 295 N.J. Super. at 237-38. If no notice is given or if the notice is in some way defective, this defect affects the jurisdiction of the board to act, and any action taken by the board in such cases is a nullity. Va. Constr. Corp. v. Fairman, 39 N.J. 61, 70 (1962); Twp. of Stafford v. Stafford Twp. Zoning Bd., 299 N.J. Super. 188, 196 (App. Div. 1997), aff'd, 154 N.J. 62 (1998). A board's decision regarding a question of law, such as whether it has jurisdiction over a matter, is subject to de novo review by the courts. TWC Realty P'ship v. Zoning Bd., 315 N.J. Super. 205, 211 (Law Div. 1998), aff'd, 321 N.J. Super. 216 (App. Div. 1999).
The notice that Penn published and sent to residents within 200 feet of the proposed development advised that it had applied for permission to construct a large scale retail anchor store of approximately 199,798 square feet which includes an outdoor Garden Center and a "seasonal sales" area. The site will include a separate retail structure consisting of 16,000 square feet of floor area and a bank containing approximately 4,396 sf [sic] of floor area. Vehicle ingress and egress will be provided on both road frontages. The applicant proposes 1,101 parking spaces.
Penn also listed all waivers it was seeking and noted that all plans were available at the Board's office for public inspection. Penn also specifically mentioned in its published notice that the elevation plans ...