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United Food and Commercial Workers' Union, Local 1360 and Michael v. Berlin Township Planning Board and Wal-Mart Stores

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 11, 2011

UNITED FOOD AND COMMERCIAL WORKERS' UNION, LOCAL 1360 AND MICHAEL HUGHES, PLAINTIFFS-APPELLANTS,
v.
BERLIN TOWNSHIP PLANNING BOARD AND WAL-MART STORES, INC., DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-93-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: December 15, 2010

Before Judges Fisher, Simonelli and Fasciale.

Plaintiffs United Food and Commercial Workers Union, Local 1360, and Michael Hughes (collectively United Food), filed a complaint in lieu of prerogative writs to review the approval of a site plan application and several variances for an expansion of Wal-Mart Store Inc.'s in Berlin Township. United Food appeals from Judge Orlando's order upholding the approvals and dismissing the complaint. We affirm.

Wal-Mart intended to expand its property, located in a C-2 Highway Zoning District, to include a grocery section and storage area. It requested preliminary and final site plan approval, eleven variances, and three waivers. Defendant Berlin Township Planning Board (the Board) conducted three hearings and unanimously approved Wal-Mart's application.

United Food challenged the site plan and variance approvals. Judge Orlando remanded the matter to the Board to make additional findings of fact and conclusions of law, allowed United Food to pursue its claim of ineligible voting, and ordered compliance with Schmidhausler v. Planning Board of Lake Como, 408 N.J. Super. 1 (App. Div. 2008). The Board conducted an additional hearing and again approved unanimously Wal-Mart's application.

On January 27, 2010, Judge Orlando issued a comprehensive oral opinion and upheld the Board's approval. He concluded that there were no procedural deficiencies in the Board's vote, the approval of the expansion and the variances was supported by credible evidence, and that no additional variances were required for the project.

On appeal, United Food argues that the Board failed to (1) consider structures encroaching into the fifty-foot front yard setback from D'Angelo Drive; (2) acknowledge the encroachment into the fifteen foot side yard setback measured from Route 73; and (3) comply with Schmidhausler. United Food also contends that the judge erred by determining that front and side setback encroachments did not necessitate relief.

"The standard of review used by courts in any challenge to a decision by a planning or zoning board is very limited." Davis v. Planning Bd. of City of Summers Point, 327 N.J. Super. 535, 542 (App. Div. 2000). A board's decision should be sustained if it "is founded on adequate evidence," Burbridge v. Township 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). "[C]courts will defer to a decision if it is supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion." Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998). However, we do not give special deference to the trial court's legal conclusions and interpretations of the law. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).

We have carefully considered the arguments made by plaintiffs in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Orlando in his January 27, 2010 oral opinion.

Affirmed.

20110111

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