Shakoor Supermark. v. Old Bridge
19 A.3d 1038
N.J. Super. Ct. App. Div.2011Background
- Golf Center owns 53.26 acres in Old Bridge in a CR-Commercial Retail Zone within a redevelopment district and is subject to an amended Redevelopment Plan that restricts any single-user building to 150,000 sq ft.
- In 2008 The Golf Center sought preliminary/final site plan approval for a 150,000 sq ft main retail store with additional structures (garden center 7,200 sq ft, 18,400 sq ft retail building, restaurants, and a 29,190 sq ft office building).
- Notice was published for multiple hearings and described the plan as construction of a 150,000 sq ft main retail store, with witnesses and public comments referencing Walmart as the proposed tenant.
- Shakoor Supermarkets challenged the approvals, variances, and waivers and appealed from a Law Division dismissal; the Board approved the plan on June 9, 2009 with a memorializing resolution defining Phase I as Walmart 150,000 sq ft and garden center.
- The trial court held the notices were sufficient, traffic analysis was diligent, and a single 150,000 sq ft building did not require a variance or Redevelopment Plan amendment; this court affirmed.
- During proceedings, the Board allowed revised plans after public hearings and cross-examination was limited; the court found no improper delegation of authority and that the Board retained control over the process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of public notice describing the proposed uses | Shakoor argues notice failed to identify Walmart as the 150,000 sq ft use. | Golf Center argues notice conveyed the use as a 150,000 sq ft main retail store; no need to name Walmart. | Notice adequate under MLUL common-sense standard. |
| Authority to approve 150,000 sq ft single-use building without variance | Shakoor contends garden center should be counted as part of Walmart, exceeding 150,000 sq ft and requiring amendment/variance. | Garden center not a building; not counted toward 150,000 sq ft; no variance/amendment needed. | Garden center not a building; no variance or amendment required. |
| Public hearing closed with revised plans and potential delegation of authority | Shakoor asserts plans were voted on after public hearing and without cross-examination, improper delegation. | Board properly used consultants; cross-examination limited by discretion; no new objections identified. | No reversible error; process within MLUL and Board discretion. |
Key Cases Cited
- Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234 (App.Div. 1996) (notice must inform the public of the nature of the use; common-sense description suffices)
- Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adjustment, 154 N.J. 62 (1998) (purpose of notice to inform affected public; not exhaustive)
- Hartz/Damascus Bakery, Inc. v. Spence, 404 N.J. Super. 49 (App.Div. 2008) (notice of continuous production bakery upheld under common-sense standard)
- Scerbo v. Bd. of Adjustment, 121 N.J. Super. 378 (Law Div. 1972) (descriptions of uses sufficient without naming variances)
- Pond Run Watershed Ass'n. v. Twp. of Hamilton Zoning Bd. of Adjustment, 397 N.J. Super. 335 (App.Div. 2008) (notice lacking specifics on certain variances may be deficient)
- New Brunswick Cellular Tel. Co. v. Bd. of Adjustment, 160 N.J. 1 (1999) (scope of review for planning board discretion)
- Smart SMR v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309 (1998) (board decisions are presumptively valid and reviewable for abuse of discretion)