Opinion
DOCKET NO. A-5068-14T3
01-05-2017
SUFALAM, INC., a Corporation of the State of New Jersey, and ONE UNION AVENUE CORPORATION, a Corporation of the State of New Jersey, Plaintiffs-Appellants, v. SOMERVILLE BOROUGH PLANNING BOARD, THE BOROUGH OF SOMERVILLE, and MAYOR AND COUNCIL OF THE BOROUGH OF SOMERVILLE, Defendants-Respondents.
Gerald J. Muller argued the cause for appellants (Miller Porter & Muller, P.C., attorneys; Mr. Muller, of counsel and on the brief). Dennis M. Galvin argued the cause for respondent Somerville Borough Planning Board (The Galvin Law Firm, attorneys; Mr. Galvin, of counsel and on the brief; Steven M. Gleeson, on the brief). Jeremy M. Solomon argued the cause for respondents Borough of Somerville and the Mayor and Council of the Borough of Somerville (Bob Smith & Associates L.L.C., attorneys; Mr. Solomon, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Yannotti, Fasciale and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1650-11. Gerald J. Muller argued the cause for appellants (Miller Porter & Muller, P.C., attorneys; Mr. Muller, of counsel and on the brief). Dennis M. Galvin argued the cause for respondent Somerville Borough Planning Board (The Galvin Law Firm, attorneys; Mr. Galvin, of counsel and on the brief; Steven M. Gleeson, on the brief). Jeremy M. Solomon argued the cause for respondents Borough of Somerville and the Mayor and Council of the Borough of Somerville (Bob Smith & Associates L.L.C., attorneys; Mr. Solomon, on the brief). PER CURIAM
In this prerogative writs action, Sufalam, Inc. (Sufalam) and One Union Avenue, Corp. (One Union) (collectively plaintiffs), appeal from a May 15, 2013 order (1) upholding defendant Somerville Planning Board's (the Planning Board) July 27, 2011 decision denying variance relief from an Hours of Operation Ordinance 2312; and (2) remanding the matter to the Planning Board for additional findings as to ingress/egress of the site and the size of a drainage pipe. Plaintiffs also appeal from a June 2, 2015 order as to defendants Borough of Somerville and Mayor and Council of Somerville (collectively the Borough defendants) rejecting plaintiffs' contention that Ordinance 2312 is unconstitutional. We affirm.
In May 2009, Sufalam filed a site plan and variance application with the Planning Board. Sufalam intended to renovate a vacant gasoline station into a 7-Eleven convenience store, which it initially expected would operate twenty-four hours per day, seven days a week. The property is located in a B-4 business- residence zoning district, and One Union, the owner of the property, consented to Sufalam's application.
In September 2009, the Borough adopted Ordinance 2312, which limits the hours of operation for retail uses in the B-4 zone from 6:00 a.m. to midnight. Sufalam sought a variance to open the 7-Eleven at 5:00 a.m. Thereafter, Sufalam amended its site-plan application reflecting 7-Eleven's hours of operation as 6:00 a.m. to midnight. It did so, however, before Ordinance 2312 became effective.
On January 27, 2010, the Planning Board approved Sufalam's site plan and variance application, including the amended hours of operation. On the same day, the Planning Board issued a Resolution granting the application subject to drainage approval by the Planning Board engineer, and a left-hand-turn approval by the New Jersey Department of Transportation (NJDOT). Ordinance 2312 became effective thereafter, on February 5, 2010.
On April 7, 2011, Sufalam filed a new application with the Planning Board seeking variance relief from Ordinance 2312. In other words, Sufalam renewed its interest in opening the 7-Eleven at 5:00 a.m., fourteen months after the effective date of Ordinance 2312. On July 27, 2011, the Planning Board denied Sufalam's application.
In October 2011, plaintiffs filed this complaint alleging that the Planning Board's July 27, 2011 decision denying it variance relief from Ordinance 2312 was arbitrary and capricious. In the same complaint, plaintiffs initiated a claim against the Borough defendants alleging that Ordinance 2312 was unconstitutional.
In May 2013, the court applied Ordinance 2312 to the new application, noted the property was located adjacent to residential units and in close proximity to an elementary school, and concluded in a written opinion that the Planning Board's July 27, 2011 decision was not arbitrary, capricious or unreasonable. The court then remanded the matter to the Planning Board for further fact finding on issues pertaining to the left-hand-turn and size of the drainage pipe.
In June 2015, the court resolved plaintiffs' contentions that Ordinance 2312 was unconstitutional. In rejecting plaintiffs' arguments, the court relied on Quick Chek Food Stores v. Springfield, 83 N.J. 438 (1980). The judge noted that "[Sufalam]'s site and the B-4 district are 'located in a residential milieu[,]'" and stated further that the midnight to 6:00 a.m. closing of the convenience store protected the "peace and solitude of the residential neighborhood and, therefore, [the hours of operation are] 'related to the health, peace and comfort of those surrounding homes.'" Id. at 449.
On appeal, plaintiffs argue the court incorrectly applied Ordinance 2312 to its April 7, 2011 application; the Planning Board lacked jurisdiction to impose a left-hand-turn condition as part of the application site-plan approval process; the court erred by ordering a remand to the Planning Board on issues involving ingress/egress and the size of the drainage pipe; and that Ordinance 2312 is unconstitutional.
We conclude that plaintiffs' arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the thoughtful reasons expressed by the court in the comprehensive and thorough written opinions dated May 15, 2013 and June 2, 2015. We add the following remarks.
When reviewing a trial court's decision regarding the validity of a local board's determination, "we are bound by the same standards as was the trial court." Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). Thus, we give deference to the actions and factual findings of local boards and may not disturb such findings unless they were arbitrary, capricious, or unreasonable. Id. at 560. In other words, a board's actions must be based on substantial evidence. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 89 (2002). However, a local board's "legal determinations are not entitled to a presumption of validity and are subject to de novo review." Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405 N.J. Super. 189, 197 (App. Div. 2009).
We reject plaintiffs' argument that Sufalam's April 7, 2011 application was not subject to Ordinance 2312. The court correctly characterized Sufalam's April 7, 2011 application as a new application. The court stated:
Plaintiff[s] argue[] that [the April 7, 2011] application is nothing more than an amendment to the [May 2009] application, but the [Planning] Board argues that the [April 7, 2011] application is a completely new application. Therefore, characterization of the [April 7, 2011] application is essential to determining whether [Ordinance 2312] applies. . . .As a result, Sufalam's April 7, 2011 application is subject to Ordinance 2312. It is also new in the sense that before the Planning Board granted the site plan and issued its Resolution on January 27, 2010, Sufalam had withdrawn its initial request to open the 7-Eleven at 5:00 a.m. Indeed, the Planning Board approved Sufalam's amended application at the time, which reflected 7-Eleven's hours of operation beginning at 6:00 a.m. Thus, the April 7, 2011 application was, as the courts stated, "a completely new application."
According to Somerville Borough Ordinance [Section] 102-42 (I), "Applications for amended approval, as defined in [Section] 102-42, shall be classified as if amendment(s) were a new application[.]" The [c]ourt finds that . . . [Sufalam's April 7, 2011] application is a completely new application and is not considered an amendment to the [May 2009] application.
On the left-hand-turn issue, plaintiffs contend that the court erred by remanding the matter to the Planning Board for further findings. Sufalam argues that it complied with the Planning Board's condition because it secured a State Highway Access Permit from the NJDOT. As a result, Sufalam asserts there is no reason for a remand.
The court remanded to the Planning Board on the left-hand-turn issue because of an unclear record. The court stated:
Here, the [Planning] Board's Resolution was incorrectly drafted because, according to the transcript, the [Planning] Board was requesting a left turn only lane, but in its Resolution[,] it conditions approval on [NJDOT] approval of a "left hand turn" from Union Avenue into the site.
Furthermore, both parties agreed that [p]laintiff[s] would seek permission from [NJDOT] to construct a left turn only lane despite the fact that this condition was not in the Resolution. Although the [NJDOT] denied [] the left turn only lane, [Sufalam] argues that it satisfied the [Planning] Board's condition because it received a major access permit which will allow for ingress and egress to the site. The [Planning] Board argues that [Sufalam] must return to the
[Planning] Board with an alternative solution to address the Board's traffic safety concerns.The Planning Board did not, as plaintiffs suggest, pre-empt NJDOT's jurisdiction. On this record, the court correctly determined that a remand is warranted to address the ingress/egress issues related to the site.
On the drainage pipe issue, we agree that a remand is also required. The Resolution states that "[t]he drainage shall be subject to [the] review and approval of the Planning Board Engineer." The NJDOT had apparently denied Sufalam's request for an enlargement of the drainage pipe. At the July 27, 2011 hearing, the Planning Board did not fully resolve whether it or the NJDOT had jurisdiction over regulating the drainage pipe. The court reasonably concluded that the Planning Board should give further consideration to the size of the pipe in light of the NJDOT's determination.
We reject plaintiffs' argument that Ordinance 2312 is unconstitutional. Statutes and ordinances are presumed valid. Heyert v. Taddese, 431 N.J. Super. 388, 422 (App. Div. 2013) (citing Hutton Park Gardens v. Town Council of W. Orange, 68 N.J. 543, 564 (1975)); Spring Lake Hotel & Guest House Ass'n v. Spring Lake, 199 N.J. Super. 201, 207-08 (App. Div.) (citations omitted), certif. denied, 101 N.J. 267 (1985). Though the presumption is rebuttable, it imposes a "heavy burden" on the party seeking to overturn the ordinance. Heyert, supra, 431 N.J. Super. at 422 (citation omitted).
The court correctly applied Quick-Chek, which upheld an ordinance restricting the hours of operation of a convenience store from 9:00 p.m. to 6:00 a.m. because the business was "nestled" in a residential area. Supra, 83 N.J. at 450. In his letter-opinion the judge stated:
Somerville is primarily a residential municipality. But it has substantial commercial activity on its edges and in a downtown business area. Its northerly and southerly edges adjoin three major, multiple-lane regional highways: routes 22, 202[,] and 206. Interstate 287 is close. Exhibit P-4, the zoning map, demonstrates that the borough's major business and commercial zones, including the other two B-4 districts, are along the borough's edges or in the downtown business district on the borough's south side.
Between these edges, the borough is residential and zoned R-1 and 2 and G (garden apartments). The B-4 district in which plaintiff[s'] site is located[,] stands alone, surrounded by residential uses. There are houses behind the site on Roosevelt Place and across from the site on Union Avenue. Neighborhoods to the east on Union are residential as are areas directly west and north along N. Gaston Avenue, Catherine Street, William Street, Bartine Street[,] and Reimer Street. These are leafy, suburban neighborhoods, and the great majority of the houses are well maintained. The cemetery to the east of the B-4 district provides open space, thereby enhancing the suburban
atmosphere. Thus, . . . plaintiff[s'] site and the B-4 district are "located in a residential milieu. . . ." [Quick Chek, supra,] 83 N.J. at 449.We have no reason to second-guess these findings. Plaintiffs have therefore failed to meet the heavy burden of overcoming the presumption of a valid ordinance. Heyert, supra, 431 N.J. Super. at 422.
We also note that the court properly rejected the expert noise testimony produced by plaintiffs. The judge remarked that the expert's testimony
was limited to loudness. There was no testimony regarding the impact that sudden changes in the source or type of sound may have on a residential neighborhood, such as a car door closing, a horn sounding, music from a car, the running engine of a parked car, parking-lot conversation, laughter, shouts.
Moreover, noise is only one component of legitimate concern. Another important concern is the intrusion of commercial activity in a "residential milieu" during a time of anticipated solitude, quiet and security.
The court correctly rejected plaintiffs' contention that the Borough failed to apply Ordinance 2312 to other business zones adjacent to residential areas. The judge found the other business zones are intended to "foster a high energy, urban mix of business and housing" and "more important[ly], are not surrounded by leafy residential enclaves." In other words, the Borough did not act arbitrarily, capriciously, or unreasonably by not applying Ordinance 2312 to other zoning districts, which the substantial credible evidence shows are not similarly situated.
Finally, there exists substantial credible evidence to support the denial of Sufalam's variance from Ordinance 2312. As the court stated:
Reviewing courts must give greater deference to a denial of a variance than to [a] grant. See CBS Outdoor[, Inc. v. Borough of Lebanon Planning Bd., 414 N.J. Super. 563, 578 (App. Div. 2010)]. Therefore, a plaintiff has the "heavy burden of proving that the evidence presented to the board was so overwhelmingly in favor of the applicant that the board's action can be said to be arbitrary, capricious or unreasonable." Medical Realty v. Bd. of Adjustment, 228 N.J. Super. 226, 233 (App. Div. 2004). In this case, [Sufalam's] primary reasons for seeking to open the convenience store before 6:00 a.m. were to secure the 7-Eleven franchise and to be able to receive delivery of food and other products. The Board found these goals to be self-serving and saw little benefit to the community if the store were to open an hour earlier. In its Resolution, the Board weighed [Sufalam's] application against its concerns regarding the site's location which is adjacent to residential units and in close proximity to the Borough's Elementary School. The Board ultimately denied [Sufalam's] variance.
The [c]ourt finds that the Board's decision to deny [Sufalam's] request to permit the store to operate from 5:00 a.m. to midnight is not arbitrary, capricious, or unreasonable because it was based on specific
findings of fact stemming from the Board's unique knowledge of local conditions.Here, the Board made a factual determination that Sufalam's desire for a variance was outweighed by the concerns for the sanctity of the surrounding residential neighborhoods as well as the elementary school nearby. The Planning Board concluded that there was no basis to overturn the original denial of the variance. Moreover, the chairman stated, "[t]he rationale [behind the ordinance is that] the B-4 zone is a unique zone, and [] this board spent a lot of time discussing how and why we should restrict [the] hours of operation, and it's not just for a 7-Eleven. . . . It was done with [] an eye towards keeping the neighborhoods [] in good shape."
Affirm. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION