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East Windsor Group, LLC and Tr Liquor, LLC v. Township Council of the Township of Toms River and Township of Toms River

September 15, 2011

EAST WINDSOR GROUP, LLC AND TR LIQUOR, LLC, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP COUNCIL OF THE TOWNSHIP OF TOMS RIVER AND TOWNSHIP OF TOMS RIVER, DEFENDANTS-RESPONDENTS, AND
LAKE REAL ESTATE, LLC, DEFENDANT.*FN1
EAST WINDSOR GROUP, LLC AND TR LIQUOR, LLC, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP COUNCIL OF THE TOWNSHIP OF TOMS RIVER AND TOWNSHIP OF TOMS RIVER, DEFENDANTS-RESPONDENTS, AND
LAKE REAL ESTATE, LLC, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket Nos. L-4086-08 and L-854-09.*fn2

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 30, 2011

Before Judges Fisher, Sapp-Peterson and Fasciale.

Plaintiffs, East Windsor Group, LLC, and TR Liquor, LLC (hereinafter collectively referred to as "plaintiffs"), are owners of a hotel and restaurant in the Township of Toms River (Township). They appeal the dismissal of their complaint in lieu of prerogative writs challenging two ordinances adopted by the Township Council of Toms River (Council), Ordinance No. 4164-08 and Ordinance No. 4183-09. We affirm substantially for the reasons expressed by Judge Vincent J. Grasso in his thorough and well-reasoned written opinion of June 24, 2010, which was summarized in a final judgment dated July 14, 2010.

Plaintiffs' challenge to the ordinances stems from the proposed construction of a Courtyard Marriot Hotel, along with two restaurants, north of Route 37 and south of Bay Avenue along Hooper Avenue in Toms River by developer, Lake Real Estate, LLC (Lake). As proposed, one of the restaurants would be located in the hotel, and the other restaurant would be constructed as a free-standing structure. The hotel and restaurants were slated to be built in the O-15 Zone. Prior to the passage of the two ordinances, hotels and restaurants were not permitted uses within the O-15 Zone. Lake applied to the Township Board of Adjustment for a use variance. Before the Board of Adjustment acted on the application, Lake petitioned Council and the Township Planning Board (Board) to amend its zoning ordinance to include hotels and detached restaurants as permitted uses within the O-15 Zone. The Board recommended that Council adopt an ordinance permitting hotels and motels in the O-15 Zone as conditional uses. Council adopted the amendment to Ordinance No. 4164-08 as proposed by the Board. Thereafter, the Township planner and the Township attorney recommended several amendments to the Township's master plan. The recommendation included permitting free-standing restaurants in the O-15 Zone. Council approved this recommendation and amended Ordinance No. 4183-09.

Plaintiffs filed their first complaint following the passage of Ordinance No. 4164-08, and its second complaint after Council amended Ordinance No. 4183-09. The court consolidated the matters and conducted a bench trial. Plaintiffs presented expert testimony from Gordon Gemma (Gemma), who testified that (1) the ordinances were adopted without proper notice to affected property owners, (2) the planner's re-examination was flawed, and (3) the two ordinances permitting hotels and restaurants as permitted uses within the O-15 Zone violated provisions of New Jersey's Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-89 and -28.

Toms River planner, John J. Lynch (Lynch), testified that his recommendation that hotels and free-standing restaurants be allowed in the O-15 Zone was influenced by the hotels' and restaurants' "strong compatibility and supportive relationship to office uses and employment centers." He disagreed that the notice requirements to affected property owners was defective and stood by the re-examination report he prepared.

In a comprehensive written opinion, Judge Grasso found that the adoption of the two ordinances comported with applicable procedural and substantive requirements. Accordingly, he dismissed the action. The present appeal followed.

On appeal, plaintiff raises the following points for our consideration:

POINT [I]

ORDINANCE 4164-08 IS ALSO VOID BECAUSE THE TOWNSHIP FAILED TO NOTICE PROPERTY OWNERS WITHIN 200 [FEET] IN ALL DIRECTIONS OF THE BOUNDARIES OF THE ZONING DISTRICTS WHERE HOTELS AND MOTELS WERE ADDED AS A CONDITIONAL USE PURSUANT TO N.J.S.A. 40:55D-62.1 AND THE HOTEL STANDARDS AND DEFINITIONS WERE CHANGED.

POINT [II]

THE NOTICE FOR THE PUBLIC HEARING ON THE ZONING ORDINANCE 4183-09 WAS INSUFFICIENT AND FAILED TO COMPLY WITH THE STANDARDS SPECIFIED IN ...


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