On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-2595-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Hayden.
The Borough of Garwood Planning Board granted zoning and site plan approvals for defendant Gold Medal Fitness, Inc. to operate a sports "speed school" at property adjacent to the ShopRite supermarket owned and operated by plaintiff Village Super Market, Inc. Plaintiff brought an action in lieu of prerogative writs in the Law Division to set aside the approvals. Plaintiff now appeals from the Law Division's judgment dismissing its prerogative writs action as moot. We affirm.
The primary issue on appeal involves application of a newly-enacted statute, N.J.S.A. 40:55D-10.5, that supersedes the "time-of-decision rule" in zoning and land use cases. See Riggs v. Twp. of Long Beach, 101 N.J. 515, 520-21 (1986). The time-of-decision rule provides that a land use board or a court reviewing a land use matter will apply a pertinent ordinance or regulation in effect at the time the decision is being made rather than the ordinance or regulation that was in effect at the time of the original application. See ibid.; Kruvant v. Mayor of Cedar Grove, 82 N.J. 435, 440 (1980).
In 2010, the Legislature abrogated the time of decision rule by enacting N.J.S.A. 40:55D-10.5. The statute provides that the "development regulations" that were in effect at the time a property-owner or developer applied for land use approvals shall generally govern review of the application despite subsequent amendments of those development regulations.*fn1
We must determine how the new statute affects Gold Medal's application for land use approvals.
The ShopRite supermarket in this case is located at 563 North Avenue in Garwood. Properties designated as 475 and 477 North Avenue are owned by ACP Properties. Since the late 1990s, defendant Gold Medal has leased 475 North Avenue and operated a health club and exercise gym at that location. In 2006, Gold Medal obtained a Parisi Speed School franchise, which we understand is a performance training and conditioning program designed primarily to improve the athletic skills of children and teenagers. Gold Medal entered into an agreement with ACP Properties to lease the adjacent vacant premises at 477 North Avenue to operate the speed school.
At that time, the properties were in a zoning district of the Borough of Garwood designated as "Light Industrial." Neither the supermarket nor the health club was a permitted use in the zoning district, but both were operating lawfully by virtue of previously-granted variances. Similarly, a speed school was not a permitted use in the zoning district in 2006. Gold Medal applied for a use variance and site plan approval, as well as continued application of certain existing bulk variances and waivers for the 477 North Avenue property. The Planning Board held a hearing on April 26, 2006. Plaintiff did not raise an objection at that hearing to Gold Medal's application. By resolution dated May 24, 2006, the Planning Board approved Gold Medal's site plan and its application for use and bulk variances pursuant to N.J.S.A. 40:55D-70.
Plaintiff filed a complaint in lieu of prerogative writs in the Law Division, in accordance with Rule 4:69, seeking to set aside the site plan and zoning approvals. The Planning Board's approvals were not stayed, however, and Gold Medal proceeded with its development plans. In February 2007, Gold Medal obtained a certificate of occupancy and began operating the speed school. It has been continuously in operation to the present time.
In a previous unpublished decision, Village Supermarkets, Inc. v. Borough of Garwood Planning Board, Docket No. A-3282-07 (App. Div. July 20, 2009), we recited facts and procedural history of the case that are again relevant to the current appeal:
In the interim between the adoption of the resolution and the issuance of the certificate of occupancy, plaintiff filed a complaint in lieu of prerogative writs alleging that the Board's grant of the variances was arbitrary and capricious. ShopRite objected to Gold Medal's application, complaining that the proposed non-conforming use would bring parking, traffic and safety concerns to the property. ShopRite contended that Gold Medal did not demonstrate an inherently beneficial use, nor did it demonstrate that it would suffer any undue hardship if the variances were not granted.
Gold Medal's owner, Gary Patti, testified at the Board hearing that the health club currently has 2,400 members and is open from 5:00 a.m. to 11:00 p.m. Monday through Thursday, 5:00 a.m. to 9:00 p.m. on Friday and 7:00 a.m. to 6:00 p.m. on Saturday and Sunday. Patti testified that the Speed School trains ...