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Paul Cortesini and Thomas Zola v. Hamilton Township Planning Board and Wal-Mart Real Estate Business Trust

December 14, 2010

PAUL CORTESINI AND THOMAS ZOLA, PLAINTIFFS-APPELLANTS,
v.
HAMILTON TOWNSHIP PLANNING BOARD AND WAL-MART REAL ESTATE BUSINESS TRUST, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1203-09.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 13, 2010

Before Judges Skillman, Parrillo and Espinosa.

The opinion of the court was delivered by SKILLMAN, P.J.A.D.

This appeal involves the grant by defendant Hamilton Township Planning Board (Board) to defendant Wal-Mart Real Estate Business Trust (Wal-Mart) of land use approvals for the proposed renovation of an existing Wal-Mart store. The primary argument presented by plaintiffs, who are property owners in Hamilton Township, is that the Board's resolution authorizing this renovation is invalid because the approvals did not include a bulk variance authorizing the nonconformity of parts of the existing Wal-Mart parking lot with the parking area setback requirement of the Hamilton Township zoning ordinance. We reject this argument because the nonconformity with the parking area setback requirement is a feature of the existing Wal-Mart parking lot that was authorized by the subdivision and site plan approvals granted by the Board in 2001 and 2002, and the proposed renovation will not increase or otherwise affect that nonconformity. Therefore, plaintiffs' challenge to the land use approvals granted by the Board for this renovation constitutes an untimely collateral attack upon the land use approvals the Board granted in 2001 and 2002 for construction of the original Wal-Mart store.

In 2001, a developer, JDN Construction, applied for site plan approval and associated bulk variances for a large commercial development known as Hamilton Marketplace, located near the intersection of Routes 130 and I-195 in Hamilton Township, which would contain offices, retail stores, and restaurants. After the Board granted this application, the developer also applied for a subdivision approval to enable major retailers who planned to construct stores on the site to own the properties on which their stores would be located.

In establishing the boundaries of the individual retailers' properties within the larger shopping center, the developer drew lot lines that went directly through the proposed parking lot. Although the developer applied for certain bulk variances in connection with its application for subdivision approval, it failed to apply for a variance from a provision of the zoning ordinance that requires parking spaces to be set back fifty feet from lot lines. The Board failed to note this omission and granted the developer's application.

After the developer conveyed the property on which the proposed Wal-Mart store was to be constructed, Wal-Mart was granted an amended site plan approval on June 13, 2002 for the purpose of relocating the entrance, garden center, and loading ramps for its store. This amendment had no effect upon the layout of the parking lot, for which the developer had already obtained subdivision approval without a variance from the parking area setback requirement. Wal-Mart subsequently constructed its existing store in accordance with these approvals.

In early 2009, Wal-Mart decided to renovate its store, which required a new site plan approval by the Board. Consequently, Wal-Mart applied to the Board for site plan approval to demolish 17,701 square feet of the existing building and improvements and to construct a 20,224 square foot addition and 3146 square foot outdoor garden center. This proposed renovation would result in a net increase of 5669 square feet of store space, from the present 156,963 square feet to 162,632 square feet, which would be a 3.61% increase in area. The footprint of the proposed renovated store will closely track the footprint of the existing store. The small areas where the footprint of the renovated store will be expanded are located a significant distance from the areas of the parking lot that fail to conform with the parking area setback requirement.

Wal-Mart's site plan for the proposed renovated store will add forty-six parking spaces. All of these new parking spaces will conform with the parking area setback requirement.

Therefore, no variance is required with respect to those parking spaces.

Although Wal-Mart applied for various variances and waivers in connection with the site plan approval required for its proposed renovations, it failed, as in 2001, to apply for a variance from the parking area setback requirement with respect to the existing parking spaces. However, an unidentified person noted during the course of the hearings that ...


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