NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 30, 2013
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4800-11.
Ronald S. Gasiorowski argued the cause for appellant (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, of counsel and on the briefs; Christie A. Gasiorowski, on the briefs).
Daniel L. Schmutter argued the cause for respondent Linden Development, LLC (Greenbaum, Rowe, Smith & Davis LLP, attorneys; Mr. Schmutter, on the brief).
Anthony D. Rinaldo, Jr., argued the cause for respondent Planning Board of the City of Linden.
John G. Hudak argued the cause for respondents City of Linden and City Council of the City of Linden (City of Linden – Law Department, attorneys; Mr. Hudak, on the brief).
Before Judges Alvarez, Waugh, and St. John.
Plaintiff Rockaway Shoprite Associates, Inc. (Rockaway Shoprite) appeals the Law Division's March 30 and May 29, 2012 orders dismissing the second and third counts of its amended complaint with prejudice. We affirm.
We discern the following facts and procedural history from the record on appeal.
This is the second appeal involving the proposed development of an industrial site in Linden owned by defendant Linden Development, LLC (Linden Development). The site was formerly owned and operated by General Motors Corporation (GM). We outlined the background of the dispute in our initial opinion, as follows:
The August 2002 City Master Plan listed the former GM site as H-I heavy industrial and L-I light industrial use in accordance with Linden's then zoning ordinance. The entire property is approximately 105 acres in size.
Linden Development, an affiliate of a commercial real estate developer that specializes in redeveloping industrial sites, purchased the GM site in December 2007 with the intention of creating a combination of retail and commercial uses, multi-family residential use, and industrial and warehouse uses. Specifically, the plan calls for a change in zoning for forty-five acres fronting Route 1 and 9 to allow retail and commercial uses, with Walmart and Lowe's as two of the prospective tenants, and 2.5 acres to allow multi-unit residential development. The remainder of the GM site, located in the rear westerly portion of the property, is intended to be developed with new industrial and warehouse buildings.
Having acquired the GM site without the necessary zoning ordinances or site plan approvals in place, Linden Development requested that the City effectuate zoning changes as needed for the planned development. This request for a change in zoning actually coincided with the time for the Planning Board (Board) to conduct its six year periodic ...