Opinion
DOCKET NO. A-5370-12T4
04-08-2015
VILLAGE SUPERMARKETS, INC., Plaintiff-Appellant/Cross-Respondent, v. TOWNSHIP OF EGG HARBOR and THE TOWNSHIP COUNCIL OF THE TOWNSHIP OF EGG HARBOR, Defendants-Respondents, and EGG HARBOR ASSOCIATES, LLC, Intervenor/Defendant-Respondent/Cross-Appellant. VILLAGE SUPERMARKETS, INC., Plaintiff-Appellant/Cross-Respondent, v. EGG HARBOR TOWNSHIP PLANNING BOARD, Defendant-Respondent, and EGG HARBOR ASSOCIATES, LLC, Defendant-Respondent/Cross-Appellant.
R.S. Gasiorowski argued the cause for appellant/cross-respondent (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, on the briefs). Stephen R. Nehmad argued the cause for respondent/cross-appellant (Nehmad Perillo & Davis, P.C., attorneys; Mr. Nehmad and Michael R. Peacock, on the briefs). Marc Friedman argued the cause for respondents Township of Egg Harbor and Township Council of the Township of Egg Harbor. John W. Daniels argued the cause for respondent Egg Harbor Township Planning Board (Fleishman Daniels Law Offices, attorneys; Mr. Daniels, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh, and Maven. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket Nos. L-2173-11, L-7632-11, and L-7633-11. R.S. Gasiorowski argued the cause for appellant/cross-respondent (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, on the briefs). Stephen R. Nehmad argued the cause for respondent/cross-appellant (Nehmad Perillo & Davis, P.C., attorneys; Mr. Nehmad and Michael R. Peacock, on the briefs). Marc Friedman argued the cause for respondents Township of Egg Harbor and Township Council of the Township of Egg Harbor. John W. Daniels argued the cause for respondent Egg Harbor Township Planning Board (Fleishman Daniels Law Offices, attorneys; Mr. Daniels, on the statement in lieu of brief). PER CURIAM
Plaintiff Village Supermarkets, Inc. (ShopRite), the owner and operator of ShopRite Supermarkets, appeals from a June 7, 2013 Law Division judgment affirming approvals issued by defendant Egg Harbor Township Planning Board (Board), and the adoption of certain ordinances by the Township of Egg Harbor (Township). Defendant Egg Harbor Associates, LLC (Wal-Mart), cross-appeals on the issue of the applicability of N.J.S.A. 40:55D-10.5 to its application.
This statute provides that subsequently adopted development regulations shall not govern pending development applications, with the exception of regulations "relating to health and public safety."
I
The judgment addressed three matters. In the first, ShopRite sought to invalidate Egg Harbor Township Ordinance 13-2010 as contrary to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. The complaint was later amended to include Ordinance 15-2011, which also sought to rescind, as did Ordinance 13-2010, previously enacted Ordinance 46-2000. In the second lawsuit, ShopRite challenged the adoption of Ordinances 21-2011 and 22-2011. Lastly, ShopRite filed a complaint in lieu of prerogative writs seeking nullification of the Board's issuance of several approvals to Wal-Mart necessary for its construction of a store and shopping center. The cases were consolidated, and Wal-Mart was permitted to intervene. After several days of trial, the judge issued a written opinion affirming the Board's approvals and the Township's adoption of the ordinances, and concluding, contrary to Wal-Mart's contention, that N.J.S.A. 40:55D-10.5 prohibited retroactive application of Ordinances 21-2011 and 22-2011 to its project.
A.
The property in question is a former corporate office site, vacant for over ten years, which is located in a regional commercial development (RCD) zone. Under the Township's zoning ordinance, that is the most intensive commercial zoning district, allowing offices, shopping centers, and light industrial use.
In 2004, Wal-Mart had obtained all the approvals necessary for its project, which had some 50,000 square feet more than the current plan. The 2004 project required review by the New Jersey Department of Transportation (DOT), which ultimately conditioned the development upon construction of a connector road from the northeast corner of the site, traversing the eastern property line, and connecting to Old Egg Harbor Road opposite its intersection with Hingston Avenue. In order to accommodate the connector road, Wal-Mart reoriented the buildings and reduced their square footage. This required new approvals. Hence Wal-Mart sought preliminary and final site plan approval for the project, except for pad sites for which it sought only preliminary approval.
The project will result in roughly 244,599 square feet of commercial space on approximately thirty-seven acres of land. It requires three stormwater basins, two of which would be located on Fire Road. The two front basins would be three to four feet in depth while, to the rear, basin number three would be seven to eight feet in depth and would be divided by the connector road on the eastern side of the site.
Wal-Mart sought three waivers relating to the design of stormwater basin number three. The Township requires less than two feet of water in a basin in the event of a fifty-year storm. First, Wal-Mart requested that it be permitted more than two feet of water in the event of a fifty-year storm, because otherwise the basin would have to be three times larger than proposed on its plan. This increase in dimension would limit the buildable area.
Second, Wal-Mart sought a waiver from the Township's four-to-one slope requirement. Wal-Mart proposed instead to install a retaining wall within the side slope. Wal-Mart argued to the Board that because the project was commercial, not residential, safety considerations built into the side slope ratio could be alternatively addressed by security fences and appropriate maintenance. Lastly, Wal-Mart sought a waiver for the required width at the top of the basin.
Additionally, Wal-Mart sought a design waiver from local street paving criteria, three variances for signage, and conditional preliminary site plan approval for five pad sites. The Board conditioned its issuance of waivers, variances, and preliminary and final site plan approvals upon Wal-Mart having sole responsibility for the maintenance of the connector roadway.
Years earlier, on November 15, 2000, the Township had adopted Ordinance 46-2000, which added a new subsection on buffers to the Design and Performance Standards in the Township Zoning Code. The ordinance provided minimum buffers around property perimeters for all new major site plans and subdivisions: (1) twenty feet for lots less than 10,000 square feet; (2) thirty feet for lots between 10,001 and 20,000 square feet; (3) fifty feet for lots between 20,001 and 40,000 square feet; and (4) seventy-five feet for lots more than 40,000 square feet.
With regard to Ordinance 46-2000, Peter Miller, the Township Administrator, who sits on the Board as a Class II member, had spoken before the Board and explained that it was adopted to reduce density in the Pinelands, but that the Pinelands Commission never certified the Ordinance and the Township never enforced it. Miller explained that the Board granted design waivers to everyone in the non-Pinelands area of the Township and the Board "kind of forgot about it." He told the Board it should recommend rescinding Ordinance 46-2000 because it was inconsistent to have different buffer standards in the Pinelands and non-Pinelands areas.
On May 12, 2010, after Wal-Mart obtained its approvals, the Township adopted Ordinance 13-2010 to rescind Ordinance 46-2000. The Township had to subsequently vacate Ordinance 13-2010 due to a procedural error. On April 13, 2011, the Township adopted Ordinance 15-2011, rescinding Ordinance 46-2000 in its entirety.
On June 20, 2011, the Board considered Ordinance 21-2011, which changed design standards dealing with stormwater facilities and buffers for commercial properties. Miller explained to the Board that it had for years routinely granted variances, and that this change was intended to codify the Board's practice.
Specifically, Ordinance 21-2011 allows sidewalks, bus shelters, landscaping, and signs in the buffer areas in RCD zones. These were the only improvements allowed in the buffer area, except for those necessary for ingress and egress to the site.
Ordinance 21-2011 also addressed permitting retaining walls to be incorporated into the design of stormwater basins, in order to maximize land usage and make commercial sites more attractive for development where the property owner would maintain the basins. The twenty-four-hour, fifty-year storm design was determined to be necessary only for residential properties, not for commercial properties.
The ordinance eliminated the four-to-one slope for basins, allowed vertical walls, and eliminated the required fifteen feet of access around the top of a basin. That access had been included in the Code for residential areas to accommodate public works mowers. Fencing was still required, and considered sufficient for safety. Miller stated that variances for commercial projects were routinely granted, and Ordinance 21-2011 addressed the requirements deemed unnecessary.
After Miller endorsed and recommended Ordinance 21-2011, the Board unanimously approved it. It was formally adopted by the Township on June 22, 2011.
Ordinance 22-2011, also at issue, addressed changing drive-in banks and fast-food restaurants from conditional uses in RCD zones to permitted uses. Miller stated that in the last twenty to twenty-five years all shopping centers were built with pad sites, and therefore advised that this should be a permitted use. The Board unanimously voted in favor of Ordinance 22-2011. It was formally adopted by the Township Committee on June 22, 2011.
B.
The Law Division's review of the Board's decision regarding waivers and approvals was made on the record of the application. The challenge to the ordinances, however, required testimony. At trial, David Zimmerman, ShopRite's planning consultant, testified that Ordinance 21-2011 constituted spot zoning because it permitted more intense development of sites than was previously allowed. He also described Ordinance 15-2011 as spot zoning because it had no justification in the master plan. Additionally, Zimmerman testified that the ordinances were generated by Wal-Mart's application and that the master plan did not address either stormwater management or pad sites. Hence he concluded that none of the ordinances were consistent with the master plan because the master plan, and the re-examination report of the master plan, did not mention these topics.
Miller, who voted favorably on Wal-Mart's application, testified as the Township's witness. He said that Ordinance 15-2011 was passed to rescind Ordinance 46-2000 because, among other things, of the Board's difficulty with the requirement that 40,000-square-foot lots have a seventy-five-foot buffer. The changes, including the rescission of Ordinance 46-2000, were initiated by recommendations from the land use administrator and the planning board engineer. Ordinance 46-2000's buffer requirements were rescinded by Ordinance 13-2010, but only after Wal-Mart had obtained a waiver. Once ShopRite challenged the process by which Ordinance 13-2010 was adopted, the Township solicitor recommended that a new, identical ordinance, Ordinance 15-2011, be adopted. The Township submitted Ordinance 15-2011 to the New Jersey Pinelands Commission for certification, but the Commission declined, determining that it did not have jurisdiction because the underlying ordinance, 46-2000, had never been certified when adopted in 2000.
When adopted, Ordinance 46-2000 was intended to slow residential growth and lessen the burden of rapid growth on the community. It was designed to balance unprecedented growth in residential development in the Pinelands. But, Miller testified, the Ordinance applied both to subdivisions and commercial development.
Ordinance 15-2011 eliminated the confusion unwittingly caused by Ordinance 46-2000, which created separate standards for buffers depending on whether a project was in the Pinelands or the non-Pinelands portion of the Township. Because the original ordinance had not been certified by the Commission, it applied only to non-Pinelands areas with greater residential growth.
Miller also testified that Ordinances 21-2011 and 22-2011 were the product of various hearings before the Board. The standards the Township had devised applied equally to residential and commercial retention basins, and as a result the Board granted waivers of those standards for commercial properties. In his view, there should have been separate commercial and residential standards, and the current standards should have been left in place for residential properties only.
A second component of Ordinance 21-2011 allowed sidewalks, landscaping, signs, and driveways in buffers. This resolved an ambiguity in the prior scheme as to whether these elements were permitted within buffers.
Ordinance 22-2011 addressed fast-food drive-in restaurants and banks with drive-in facilities, which previously were conditional uses. In the last twenty or twenty-five years, all commercial sites were developed with pads. Changing the conditional uses to permitted uses gave the Planning Board complete jurisdiction, with no need to split an application between the Planning and Zoning Boards. Ordinances 21-2011 and 22-2011 were both introduced and adopted at same time, sent to the Pinelands Commission, and certified by the Commission.
Miller further testified that the Master Plan recommended that the Township should revise design and performance standards in order to make the ordinance compatible with changes the Board had been authorizing in the approval process. This meant the Township was authorized and encouraged to eliminate provisions that generated repeated design waivers granted by the Board.
As a final point, Miller stated that Ordinances 21-2011 and 22-2011 were not discussed until May 2011, after the Board had concluded the Wal-Mart matter.
In his June 7, 2013 order and written opinion, the trial judge upheld the validity of Ordinances 13-2010 and 15-2011, finding that they were not inconsistent with the Master Plan, did not constitute spot zoning as Wal-Mart was neither their motivating cause nor sole beneficiary, and had not been adopted in an arbitrary, capricious, or unreasonable manner. The judge found that Ordinances 21-2011 and 22-2011 did not trigger N.J.S.A. 40:55D-62.1's personal-notice requirements, since they did not fundamentally alter the character of any zoning district, including the RCD. The judge further found both those Ordinances inapplicable to Wal-Mart's pending application, as they did not trigger N.J.S.A. 40:55D-10.5. The judge also upheld the Planning Board's grant of basin-design waivers and interpretation of the applicable standards for the connector road, finding that neither was arbitrary, capricious, or unreasonable. The judge determined that Miller's membership on the Planning Board was proper, as ShopRite presented no evidence of any conflict of interest. Finally, the judge rejected ShopRite's contention that comments by the Planning Board and opposing counsel caused it prejudice, finding "no evidence" to support such a conclusion.
ShopRite raises the following points for our consideration:
POINT ONE
THE TRIAL COURT ERRED IN ALLOWING THE TOWNSHIP TO TESTIFY ABOUT THE INTENT OF ORDINANCE [46-2000] WHICH WAS CONTRARY TO THE PLAIN LANGUAGE OF THE ORDINANCE
POINT TWO
ORDINANCE[S] 21-2011 AND 22-2011 EFFECTED A CHANGE OF CLASSIFICATION IN THE RCD ZONE AND OTHER ZONES THEREBY TRIGGERING THE PERSONAL NOTICE REQUIREMENTS OF N.J.S.A. 40:55D-62.1
POINT THREE
ORDINANCE 15-2011 (AND ORDINANCE 13-3010) ARE INVALID AS INCONSISTENT WITH THE MASTER PLAN, AND ADOPTED AS SPOT ZONING WITHOUT A SUPPORTING PLANNING RATIONALE
POINT FOUR
THE PLANNING BOARD ERRED IN ITS INTERPRETATION AND DETERMINATION THAT THE REQUIRED PUBLIC CONNECTOR ROAD ON THE PROJECT SITE, CONNECTING OLD EGG HARBOR ROAD AND BLACK HORSE PIKE, WAS NOT REQUIRED TO MEET THE DESIGN CRITERIA OF A "STREET"
POINT FIVE
THE BOARD ERRONEOUSLY GRANTED WAIVERS FOR THE DETENTION BASIN
POINT SIX
THE INVOLVEMENT OF THE TOWNSHIP ADMINISTRATOR IN THE SITE PLAN APPROVAL PROCESS AS A CLASS 2 MEMBER OF THE BOARD AND AS THE ADMINISTRATOR IN PROPOSING AND PROMOTING THE ORDINANCE CHANGES TO REMOVE ZONING REQUIREMENTS TO EASE THE APPLICATION PRESENT A CONFLICT
POINT SEVEN
VILLAGE SUPERMARKET WAS UNDULY PREJUDICED BY THE DISCOURTESY AND COMMENTS OF THE BOARD ATTORNEY, BOARD MEMBERS, AND APPLICANT
By way of cross-appeal, Wal-Mart alleges the following point of error:
POINT VIII - THE TRIAL COURT ERRED IN DETERMINING THAT N.J.S.A. 40:55D-10.5 RENDERS BOTH ORDINANCE 21-2011 AND ORDINANCE 22-2011 INAPPLICABLE TO ITS REVIEW OF THE PLANNING BOARD'S DECISION ON EGG HARBOR ASSOCIATES' APPLICATION
II
The applicable standard of review is well-established. "Judicial review of the decision of a Planning Board or Board of Adjustment ordinarily is limited. A board's decision 'is presumptively valid, and is reversible only if arbitrary, capricious, and unreasonable.'" New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999) (internal quotation marks omitted) (quoting Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998)). Because municipal ordinances are presumptively valid, those seeking to overturn them bear a heavy burden. N.J. Shore Builders Ass'n v. Twp. of Jackson, 199 N.J. 38, 55 (2009). On appeal, we review the Board's action using the same standard as the trial court. Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004).
A.
ShopRite contends the trial judge erred in allowing Miller's testimony regarding the purpose and meaning of Ordinance 46-2000, because its language is unambiguous. Such extrinsic evidence is unnecessary when the language does not give rise to any ambiguity. Myers v. Ocean City Zoning Bd. of Adjustment, 439 N.J. Super. 96, 100 (App. Div. 2015). Ordinance 46-2000, however, had certain unique characteristics that made Miller's testimony and other extrinsic evidence permissible.
At the time it was enacted, there were conflicting provisions within the Township's site plan, specifically, Ordinance 94-8 regarding required buffers for non-residential projects. Ordinance 46-2000 conflicted with Ordinance 94-8(F), which vests in the Board the discretion to impose a buffer from twenty-five to one hundred feet in width for any non-residential use abutting a residentially zoned lot or a lot used for a conforming residential purpose. This inherent conflict in the land use ordinance alone necessitated the use of extrinsic evidence as an aid to interpretation.
B.
Shop-Rite also contends that Ordinances 21-2011 and 22-2011 are invalid because the Township did not comply with the personal notice requirement of N.J.S.A. 40:55D-62.1:
Notice of a hearing on an amendment to the zoning ordinance proposing a change to the classification or boundaries of a zoning district, exclusive of classification or boundary changes recommended in a periodic general reexamination of the master plan by the planning board pursuant to section 76 of P.L. 1975, c. 291 (C. 40:55D-89), shall be given at least 10 days prior to the hearing by the municipal clerk to the owners of all real property as shown on the current tax duplicates, located, in the case of a classification change, within the district and within the State within 200 feet in all
directions of the boundaries of the district, and located, in the case of a boundary change, in the State within 200 feet in all directions of the proposed new boundaries of the district which is the subject of the hearing.This provision also states:
Notice shall be given by: (1) serving a copy thereof on the property owner as shown on the said current tax duplicate, or his agent in charge of the property, or (2) mailing a copy thereof by certified mail and regular mail to the property owner at his address as shown on the said current tax duplicate.ShopRite argues that the ordinances' adoption resulted in a change of classification in the RCD zone, thereby requiring personal notice per N.J.S.A. 40:55D-62.1. ShopRite relies upon Robert James Pacilli Homes v. Township of Woolwich, 394 N.J. Super. 319 (App. Div. 2007), in support of its argument.
[Ibid.]
In Pacilli Homes, the court made clear that:
[I]n its most general sense, classification refers to the use permitted in a zoning district, such as residential, commercial or industrial, as well as sub-categories within the broader uses, such as single-family residential and high-density residential, highway commercial and neighborhood commercial, and highway retail and neighborhood retail. We also encounter uses that may be permitted under certain conditions within a generally designated category. A change in any of these broad categories and sub-categories has the
capacity to fundamentally alter the character of a zoning district.But neither ordinance changes any classification. Given the wide array of uses already permitted in this RCD zone, ranging from commercial to industrial, the addition of fast-food restaurants and drive-in banks simply cannot be fairly characterized as a fundamental alteration of the character of the zones or the intensity of use. Moreover, since fast-food restaurants and drive-in banks were already permitted conditional uses, the change was not significant.
[Id. at 330-31.]
Changes in buffer requirements and basin dimensions can certainly impact the amount of building space available on a proposed building site. This does not, however, result in a fundamental change to the character or intensity of use in a zone. Therefore, we find the judge did not err in concluding that the Township's adoption process for the two ordinances in question was proper, as no personal notice was required.
C.
ShopRite challenges Ordinances 15-2011 and 13-2010 on the basis that they are inconsistent with the Master Plan and result in spot zoning. Since Ordinance 13-2010 was rescinded and essentially replaced by Ordinance 15-2011, we address only that ordinance.
Our Supreme Court has "defined spot zoning to be 'the use of the zoning power to benefit particular private interests rather than the collective interests of the community.'" Riya Finnegan, LLC v. Twp. Council of S. Brunswick, 197 N.J. 184, 195 (2008) (quoting Taxpayers Ass'n of Weymouth Twp., Inc. v. Weymouth Twp., 80 N.J. 6, 18 (1976), cert. denied, 430 U.S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977)).
ShopRite's argument is that pursuant to Ordinance 46-2000, section 94.8, a schedule of required perimeter buffers around new major site plans and subdivisions existed, ranging from twenty feet in width around developments with lot sizes of under 10,000 square feet to buffers of seventy-five feet in width around developments with lot sizes over 40,000 square feet. Under the 2004 site plan for the project, Wal-Mart required waivers for several locations where its proposed parking infringed into the seventy-five foot buffer.
We agree with the trial judge that Ordinance 15-2011 is consistent with the Township's Master Plan, advances the policies of the MLUL, and does not constitute spot zoning. The Township enacted the original ordinance, 46-2000, to control rapidly increasing residential growth in the Pinelands area of the Township. The Master Plan of 2002 did not recommend buffer requirements as found in Ordinance 46-2000, and the re-examination report of 2008 did not recommend any change.
Despite the intended purpose of 46-2000 to reduce and slow residential development in the Pinelands, because the Pinelands Commission never certified it, the ordinance did not apply to development in that zone. As a result, the ordinance only affected commercial development outside of the Pinelands jurisdiction. Thus it created an unintended obstacle to commercial development in the Township, inconsistent with the Master Plan's intent to expand areas of commercial development where appropriate. Ordinance 15-2011 was adopted to address Ordinance 46-2000's deficiencies.
Nor did the enactment of the ordinances at issue result in spot zoning. Although Wal-Mart's application may have provided the impetus to adopt the ordinance, that project was not the sole beneficiary. And that the Master Plan and plan re-examination report did not mention buffers did not make the ordinances inconsistent. Ordinance 46-2000 did not apply to the very area it was intended to affect, and applied to the areas where commercial waivers were consistently granted. This information was available to the Township without the need for any further study. Ordinance 15-2011 removed barriers to commercial development for the entire non-Pinelands portion of the Township. This does not constitute spot zoning, which only benefits an individual property or property owner.
D.
ShopRite claims the public connector road required by the DOT fails to meet DOT standards and requirements for a municipal street or functional equivalent. ShopRite argues that this connector road will function as a public street, will be used as a public street and not a private road, and as proposed is unsafe for public use. Essentially, as with its arguments regarding the dimensions and slope of the retention basins, ShopRite claims that, in the interest of allowing Wal-Mart more square footage for retail space, the Board compromised public safety.
In its deliberations, the Board compared the connector road to others in the area, highlighting that it was not intended to meet the site plan ordinance establishing the requirements for a public street. The Board engineer, Board planner, and ShopRite's traffic engineer all testified in support of the notion that this connector road was no different than that of the present connector road existing at the shopping mall where ShopRite is located.
As we have said, the Board's decision is presumptively valid and is reversible only if arbitrary, capricious, and unreasonable. New Brunswick, supra, 160 N.J. at 14; Smart SMR, supra, 152 N.J. at 327. Given that standard, the record supports the conclusion that the connector road can be the functional equivalent of a street while not meeting the standards for a public road.
ShopRite's expert testified that the connector road did not meet the standards for a municipal street, which was undisputed. But the record included detailed review memoranda by the Board engineer and the Board planner supporting the notion that it need not satisfy those criteria as it simply was not a public street. The Board's decision to rely upon their experts as opposed to ShopRite's was not arbitrary, capricious, or unreasonable. Thus their decision that the road, although the functional equivalent of a public road, remains a private street subject to different requirements, is presumptively valid.
E.
Wal-Mart's three design waivers were: (1) a waiver from the requirement that all stormwater management facilities shall not have more than two feet of water within a basin during a fifty-year design storm; (2) a waiver from the requirement that all infiltration basins have a side slope not to exceed a four-to-one ratio; and (3) a waiver from the requirement that all infiltration basins have a minimum top width of fifteen feet to accommodate a required access way. ShopRite challenged the Board's issuance of the first two waivers. ShopRite argues that the basin should have a four-to-one side slope, and a larger area for water permeation, because its proximity to residential properties and to the connector road makes safety a concern.
Wal-Mart's expert testified that, in a commercial setting, private stormwater retention basins with security fences and regular maintenance are equally safe. Testimony before the Board established that similar waivers had been granted in the past, and that nothing made the Board's reliance on its own and Wal-Mart's experts regarding the waivers arbitrary. Given that the claims regarding the safety of the retention basins as proposed were thoroughly refuted by other experts, ShopRite has simply failed to establish that the waivers were unreasonable. A planning board has the authority to grant waivers from design standards set forth in subdivision and site plan ordinances when adherence is impracticable. Wawa Food Market v. Planning Bd. of Ship Bottom, 227 N.J. Super. 29, 34 (App. Div.), certif. denied, 114 N.J. 299 (1988). In this case, where changes in the site plan resulted from the necessity of a connector road, and Wal-Mart proposed alternate safety measures the Board's experts considered adequate, the Board's exercise of discretion in granting the waivers was unobjectionable.
F.
Miller sits on the Board as a Class II member pursuant to N.J.S.A. 40:55D-23(a), which provides:
The governing body may, by ordinance, create a planning board of seven or nine members. All members of the planning board, except for the Class II members set forth below, shall be municipal residents. The membership shall consist of, for convenience in designating the manner of appointment, the four following classes:He has served in that capacity for approximately twenty-two years. ShopRite claims his participation was improper because of his conflicts of interest. Miller has no actual interest, direct or indirect, pecuniary or personal, in the outcome of Wal-Mart's application.
. . . .
Class II--one of the officials of the municipality other than a member of the governing body, to be appointed by the mayor[.]
Even if, as ShopRite asserts, Miller actively promoted and pursued zoning changes and new ordinances while Wal-Mart's application was pending before the Board, ShopRite is unable to specify how this activity was improper given his employment with the Township and role on the Board. N.J.S.A. 40:55D-23(a) permits a municipal official to serve on the Board. No personal or financial interest has ever been suggested by ShopRite which would have barred Miller's participation pursuant to N.J.S.A. 40:55D-23(b).
The New Jersey Supreme Court has previously defined the four scenarios which require disqualification:
(1) "Direct pecuniary interests," when an official votes on a matter benefitting the official's own property or affording a direct financial gain; (2) "Indirect pecuniary interests," when an official votes on a matter that financially benefits one closely tied to the official, such as an employer, or family member; (3) "Direct personal interest," when an official votes on a matter that benefits a blood relative or close friend in a non-financial way, but a matter of great importance, as in the case of a councilman's mother being in the nursing home subject to the zoning issue; and (4) "Indirect Personal Interest," when an official votes on a matter in which an individual's judgment may be affected because of membership in some organization and a desire to help that organization further its policies.In the absence of any indication in the record that Miller's conduct fell within any of the defined categories, we decline to find that his participation was a conflict.
[Wyzykowski v. Rizas, 132 N.J. 509, 525-26 (1993) (citing Michael A. Pane, Conflict of Interest: Sometimes a Confusing Maze, Part II, New Jersey Municipalities, March 1980, at 8, 9).]
G.
ShopRite asserts that it was unduly prejudiced by the discourteous comments and behavior of the Board attorney, Board members, and Wal-Mart. We consider the record to be so lacking in support for this claim as to not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
H.
In light of our decision affirming the trial court's conclusion that the Board's issuance of preliminary and final site plan approval, waivers, and the Township's enactment of the challenged ordinances were all proper, we will not reach Wal-Mart's cross-appeal regarding N.J.S.A. 40:55D-10.5. We consider the challenge moot. Transamerica Ins. Co. v. Nat'l Roofing, Inc., 108 N.J. 59, 64 (1987) ("When a court dismisses a matter as moot, it has found there is nothing to adjudicate.").
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION