August 20, 2012
VILLAGE SUPER MARKET, INC., PLAINTIFF-APPELLANT,
BOROUGH OF GARWOOD PLANNING BOARD, DEFENDANT, AND GOLD MEDAL FITNESS, INC., DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 6, 2012
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 children from ages seven to thirteen during after-school hours and on Saturdays.
Defendant ACP Properties (ACP) is the owner of the shopping center. ACP's representative testified that the area is in retail use, not industrial. He did not dispute that there was a parking deficiency, but believed that Gold Medal's operation would generate less parking demand than another retail operation.
In March 2007, the trial court remanded the matter to the Board for the limited purpose of amending the resolution. The amended resolution approving the application was adopted on May 9, 2007. In the amended resolution, the Board made detailed findings of fact, specifically that a retail use of the property would create a greater burden on available parking than would the proposed use; that parking would be sufficient for the proposed use; that there was a parking deficiency of only six or eight spaces; that the bulk variances and design waivers were pre-existing; that the proposed use of the site would be more aesthetically pleasing than a light industrial use; that the proposed use was particularly suited to the site; that strict application of the zoning ordinance would be a hardship to Gold Medal; and that special reasons existed to grant the use variance. Plaintiff continued to object, however, and the matter was argued before the trial court in January 2008. Thereafter, the court entered judgment vacating the Board's approval.
After hearing arguments from the parties, the trial court determined that there was insufficient evidence on the positive and negative criteria for a use variance under N.J.S.A. 40:55D-70(d), and that the Board did not find any reason why the applicant would suffer an undue hardship if the application was not granted. The court vacated the approval on the ground that it was arbitrary and capricious. [Id. at 2-4.]
By our prior decision, we reversed the Law Division's judgment of January 29, 2008, vacating the land use approvals, and we ordered that the matter be remanded to the Planning Board for further findings. We explained our decision as follows:
The trial court was principally concerned that the Board had not made findings with respect to the positive and negative criteria. In our view, the trial court should have remanded the matter to the Board for further findings with respect to the positive and negative criteria for a use variance, rather than entering judgment in favor of plaintiff. Accordingly, we reverse the trial court's judgment vacating the amended resolution dated May 9, 2007, and remand the matter to the Board for further findings with respect to the positive and negative criteria. [Id. at 7.]
On remand, the Planning Board held hearings in January and February 2010 at which several witnesses testified. On May 12, 2010, the Planning Board adopted a detailed resolution again approving use and bulk variances and granting site plan approval for the continued operation of the speed school. Plaintiff filed a new prerogative writs complaint on July 2, 2010, challenging once again the approvals granted after the remand.
While plaintiff's second prerogative writs complaint was pending in the Law Division, the governing body of the Borough of Garwood amended its zoning ordinance on July 12, 2011. The amended ordinance changed the designation of the zoning district from "Light Industrial" to "Community Commercial Zone," and it made the health club and the speed school permitted uses in the newly-designated zoning district.
After adoption of the zoning amendment, Gold Medal moved in the Law Division to dismiss plaintiff's prerogative writs complaint as moot because the speed school had become a permitted use and Gold Medal no longer needed a use variance. The Law Division heard argument and granted the motion to dismiss. The court placed an oral decision on the record and entered judgment dismissing plaintiff's prerogative writs complaint with prejudice on September 30, 2011. Plaintiff appeals from that judgment of dismissal.
Plaintiff argues that the 2010 statute abrogating the time-of-decision rule applies to this case and requires that the zoning ordinances and regulations in effect at the time of Gold Medal's application in 2006 be applied to adjudicate plaintiff's prerogative writs complaint. We disagree.
The 2010 legislation states:
Notwithstanding any provision of law to the contrary, those development regulations which are in effect on the date of submission of an application for development shall govern the review of that application for development and any decision made with regard to that application for development. Any provisions of an ordinance, except those relating to health and public safety, that are adopted subsequent to the date of submission of an application for development, shall not be applicable to that application for development. [N.J.S.A. 40:55D-10.5.]
This statute took effect on May 5, 2011, as part of the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -99. Plaintiff's prerogative writs complaint was pending at the time the statute took effect.
The language of the statute, if applied literally to the circumstances of this case, would require that the Law Division view the speed school as a prohibited use in the zoning district and determine whether a use variance was properly granted by the Planning Board by its May 12, 2010 resolution. Application of the statute to these circumstances, however, makes no practical sense. Gold Medal no longer needs a use variance. The speed school is now a permitted use under the amended municipal zoning ordinance. If the court were required to apply the statute literally and consider only the uses that were permitted in 2006 when Gold Medal's application was originally filed, Gold Medal could simply withdraw its 2006 application and apply again under the new ordinance for approval of a site plan that does not require a use variance.
The 2010 statute was enacted to protect the interests of property owners and developers who have filed applications for land use approvals. The sponsor's statement accompanying the legislation, L. 2010, c. 9, § 1, states:
Under current law, applicants are subject to changes to municipal ordinances that are made after the application has been filed, and even after a building permit has been issued . . . . Application of this rule sometimes causes inequitable results, such as when an applicant has expended considerable amounts of money for professional services and documentation that becomes unusable after the ordinance has been amended. While effectively prohibiting municipalities from responding to an application for development by changing the law to frustrate that application, the bill recognizes that ordinance changes necessary for the protection of health and public safety would apply to pending applications. [Sponsor's Statement to Assemb. No. 437, 214th Leg. (N.J. 2010), available at http://www.njleg.state.nj.us/2010/Bills/ A0500/437_I1.PDF.]
Thus, the intent of the legislation is clearly to protect property owners and developers against restrictive changes in development regulations, not to freeze their options in the event that more favorable regulations are enacted after they have applied for land use approvals. See also Governor's Statement to S. No. 82, 214th Leg. (N.J. 2010), 2010 Bill Text NJ S.B. 82 (Lexis); S. Cmty. & Urban Affairs Comm. Statement to S. No. 82, 214th Leg. (N.J. 2010), available at http://www. njleg.state.nj.us/2010/Bills/S0500/82_S1.PDF.
It is not necessary, however, for us to hold that the statute never applies when changes in the law are favorable to the land use applicant. We conclude, as did the Law Division, that plaintiff's prerogative writs cause of action is moot because application of the statute will make no significant difference in the outcome of this litigation.
"An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (quoting N.Y. Susq. & W. Ry. Corp. v. State Dep't of Treas., Div. of Tax'n, 6 N.J. Tax 575, 582 (Tax Ct. 1984), aff'd o.b., 204 N.J. Super. 630 (App. Div. 1985)). "[C]courts will not decide cases in which the issue is hypothetical, a judgment cannot grant effective relief, or the parties do not have concrete adversity of interest." Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993) (quoting Anderson v. Sills, 143 N.J. Super. 432, 437 (Ch. Div. 1976)). "It is firmly established that controversies which have become moot or academic prior to judicial resolution ordinarily will be dismissed." Ibid. (citing Oxfeld ex rel. Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303-04 (1975)).
Here, the Law Division could not give any effective relief to plaintiff with respect to the granting of a use variance to Gold Medal. Even if plaintiff prevailed on its claim before the Law Division that the use variance was improperly granted, Gold Medal no longer needs the use variance and could proceed with its operations without it. Were Gold Medal to apply to the municipal zoning official for a certificate of compliance for its use of the property as a speed school, the zoning official would have to issue such a certificate. The judgment sought by the prerogative writs complaint to set aside the use variance would have no practical effect. The aspect of plaintiff's complaint challenging the use variance was clearly moot, and the Law Division properly dismissed it.
As an alternative to its primary contention, plaintiff argues that its complaint also sought to set aside the bulk variances and site plan approval granted by the Planning Board by its 2006 and 2007 resolutions and reconfirmed by its 2010 resolution. Gold Medal responds that our prior opinion of July 20, 2009, reversed the Law Division's judgment vacating those approvals and remanded the matter to the Planning Board only to reconsider and decide anew the granting of a use variance. Village Supermarkets, Inc. v. Borough of Garwood Planning Bd., supra, slip op. at 6-7. We agree with Gold Medal's response.
We have reviewed the oral decision of the Law Division on January 29, 2008, to set aside the Planning Board's approvals. At the oral argument and in its decision on plaintiff's first prerogative writs complaint, the Law Division addressed three issues: (1) whether the subject property and development proposal provided adequate parking for the new use; (2) whether Gold Medal and the Planning Board could rely on the prevailing retail uses of surrounding properties, which were the results of prior use variances granted to other applicants, to "bootstrap" Gold Medal's application for yet another use variance in the zoning district; and (3) whether the statutory criteria for a use variance pursuant to N.J.S.A. 40:55D-70d(1) as a whole had been demonstrated by the evidence presented to the Planning Board. The Law Division did not indicate in its decision that the site plan or the bulk variances, which were pre-existing for the property's prior use, presented any issue for the court's determination.
Our reversal of the Law Division's judgment focused on the use variance issue that the Law Division actually decided. We concluded that the applicant and the Planning Board should have been given further opportunity to satisfy the positive and negative criteria of the variance statute rather than an outright setting aside of the Planning Board's decision. Therefore, we remanded to the Planning Board "for further findings with respect to the positive and negative criteria for a use variance . . . ." Village Supermarkets, Inc. v. Borough of Garwood Planning Bd., supra, slip op. at 7 (emphasis added).
On remand, the Planning Board complied with our mandate. It took additional evidence and determined again that the use variance should be granted. Plaintiff's second prerogative writs complaint disputed that decision. But the Planning Board's granting of a use variance has now been rendered moot by the municipal governing body's intervening adoption of the amended zoning ordinance. The use variance is no longer an issue in the case. Therefore, there was nothing for the Law Division to decide on plaintiff's second prerogative writs action. The court properly dismissed plaintiff's complaint with prejudice.