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Malashevitz v. Governing Body of Township of Little Egg Harbor

Superior Court of New Jersey, Appellate Division

May 30, 2013

MELISA MALASHEVITZ, Plaintiff-Appellant,
v.
GOVERNING BODY OF THE TOWNSHIP OF LITTLE EGG HARBOR, LITTLE EGG HARBOR PLANNING BOARD, and WAL-MART REAL ESTATE BUSINESS TRUST, Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 10, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1919-09.

Ronald S. Gasiorowski argued the cause for appellant (Gasiorowski & Holobinko, attorneys; Cathy S. Gasiorowski, on the brief).

Michael J. Gilmore argued the cause for respondent Governing Body of the Township of Little Egg Harbor (Gilmore & Monahan, P.A., attorneys; Mr. Gilmore, on the brief).

Terry F. Brady argued the cause for respondent Little Egg Harbor Planning Board (Brady & Kunz, P.C., attorneys; Mr. Brady, on the brief).

Kenneth D. Friedman argued the cause for respondent Wal-Mart Real Estate Business Trust (Manatt, Phelps & Phillips, L.L.P., attorneys; Mr. Friedman, on the brief).

Before Sapp-Peterson, Haas and Happas Judges.

PER CURIAM.

Plaintiff, Melisa Malashevitz, appeals from the dismissal of her complaint in lieu of prerogative writs filed against Little Egg Harbor Township (Township), Little Egg Harbor Township Planning Board (Planning Board), and Wal-Mart Real Estate Business Trust ("Wal-Mart") (collectively "defendants"). We affirm substantially for the reasons expressed by Judge Vincent Grasso in his comprehensive and well-reasoned December 2, 2011 written opinion.

Wal-Mart filed preliminary and final subdivision and site plan applications with the Planning Board to construct a Wal-Mart supercenter and a bank on the site of an abandoned sand and gravel pit along Route 9 within the Township. The property consists of 70.73 acres, of which 64 acres are located within the General Business (GB) commercial zone and 6.7 acres are situated within the R-200 residential zone. Under Wal-Mart's proposed plan, none of the property located within the R-200 residential zone would be subjected to site improvements or land disturbances. Rather, this property would remain in its natural wooded state and be deed-restricted against any future development. The proposed development within the GB zone is a permitted use and is consistent with the Township's Master Plan, which allows for commercial development along the Route 9 corridor. Wal-Mart did, however, seek variances for the number, size and location of signs, and for the height of a sound wall it proposed to construct behind the supercenter. It additionally requested waivers for parking lot design and landscaping. The Planning Board conditionally approved the C-variances and waiver requests.

Meanwhile, the Planning Board approved the application. It noted that over 90% of the site is located in the GB zone and concluded Ordinance 2005-002 (Ordinance), which it adopted in February 2005, would apply to the project. Under the Ordinance,

[w]here a zoning lot is located in part in one zoning district and in part in another zoning district, the entire lot may be used for permitted uses in the zone containing the majority (greater than 50%) of the land area of the split zoned lot and all zoning requirements for that zone shall apply to the entire lot.

On May 26, 2009, plaintiff filed a six-count complaint in lieu of prerogative writs against defendants, seeking a judgment declaring the Ordinance to be null and void, and reversing the Planning Board's approval of Wal-Mart's subdivision and site plan applications. In Counts One through Five, plaintiff alleged the Ordinance is facially invalid because it contravenes the Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-1 to 163. In Count Six, plaintiff alleged the Planning Board's approval of Wal-Mart's application was based upon its reliance upon an inaccurate traffic impact study. Following a brief remand to permit the Planning Board to consider Wal-Mart's amended plan, which the Planning Board unanimously approved, Judge Grasso conducted a bifurcated bench trial. The first portion of the trial addressed the validity of the ...


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