KBS MT. Prospect v. Lakewood Twp. Planning Bd.

1

KBS MT. PROSPECT LLC, Plaintiff-Appellant, v. LAKEWOOD TOWNSHIP PLANNING BOARD, and SUDLER LAKEWOOD LAND, L.L.C., ^[1] Defendants-Respondents.

No. A-1978-22

Superior Court of New Jersey, Appellate Division

June 12, 2024

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.

Argued May 29, 2024

On appeal from the Superior Court of New Jersey, Law Division Ocean County, Docket No. L-0153-22.

Bernard M. Reilly argued the cause for appellant (Gasiorowski & Holobinko, and Bernard M. Reilly LLC, attorneys; Ronald S. Gasiorowski, on the briefs).

John Joseph Jackson III argued the cause for respondent Lakewood Township Planning Board (John J. Jackson III & Associates, Attorneys at Law, LLC, attorneys; John Joseph Jackson III, of counsel; Jilian Lee McLeer, on the brief).

Anthony R. Todaro argued the cause for respondent Sudler Lakewood Land LLC (Faegre Drinker Biddle & Reath LLP, attorneys; Anthony R. Todaro, on the brief).

Before Judges Sumners and Perez Friscia.

PER CURIAM

After a bench trial, plaintiff KBS Mt. Prospect, LLC appeals from a January 5, 2023 Law Division order entering final judgment dismissing its complaint in lieu of prerogative writs against defendants Sudler Lakewood Land, LLC (Sudler) and Lakewood Township Planning Board (Board). The trial judge's order affirmed the Board's approval of Sudler's application for a minor subdivision and final site plan. We affirm.

I.

We derive the pertinent facts and procedural history from the record. Sudler owned fifty-nine acres (the property) located on Block 1160, Lots 240 and 251, in Lakewood Township. The property was in an industrial M-1 zoning district and had frontage on Oak Street and Towbin Avenue, a partially improved public road. Lot 240 was approximately four acres with a pre-existing masonry warehouse and frontage along Oak Street. Lot 251 was approximately fifty-five acres with frontage along Oak Street and an unimproved portion of Towbin Avenue. A large area of Lot 251 was designated protected wetlands subject to New Jersey Department of Environmental Protection restrictions. KBS owned an adjacent property.

In 2014, Sudler applied to the Board for a preliminary and final major site plan approval to construct two new warehouses on Lot 251 with a shared access U-shaped driveway and accessory improvements to the existing warehouse on Lot 240. After public hearings, the Board approved the application by resolution including Sudler's request for: a variance for a buffer; a design waiver for "providing sidewalks along the frontage" and street trees; and a design waiver "to allow two driveways per 275 feet of lot frontage."

In February 2021, Sudler applied for a minor subdivision and final site plan approval, "proposing to subdivide . . . Lot 251 and reconfigure . . . Lot 240 in order to create two additional lots." Sudler sought to divide Lot 251 into: Lot 251.01, approximately 7.7 acres; Lot 251.02, approximately 7.05 acres; and Lot 251.08, approximately 40.21 acres. Lot 240 was proposed to gain approximately 134 square feet. The existing buildings located on designated Lots 240, 251.01, and 251.02 remained unchanged. Newly proposed Lot 251.08 was unimproved and had a large section of wetlands. The application provided "no change" to the "[w]arehouse" use. In addition to the subdivision creating four separate lots, Sudler's application also proposed access easements on Lots 240 and 251.01 permitting entry to Lot 251.08.

After Sudler's application was deemed complete, Sudler provided timely public notice. At the ensuing Board hearing, Sudler's counsel summarized the proposed subdivision, and its expert engineer Christopher Szalay testified. Counsel represented the application included only previously granted or preexisting variances and design waivers, proposed "[n]o new buildings," and planned for "absolutely nothing" to be "done to th[e] site." He clarified the application did not "in any way chang[e] what was . . . approved" in 2014. Counsel represented the application was filed "[b]ecause of financing." Further, it was represented that there were no current development plans. Sudler recognized any future development on the unimproved land would require another application before the Board. Szalay affirmed that he "agree[d] with everything" Sudler's counsel presented and addressed utilities and sidewalk placement.

KBS's counsel opposed the application but proffered no opposing expert. Counsel objected to the allegedly "partially completed engineering plans," arguing there was an "overuse of the property "and insufficient notice. He requested Sudler agree to "[n] ever use the proposed easements as a major egress, and . . . only ingress and egress into the back property [Lot 251.08]." KBS opposed the subdivision because approving access easements "give[s] access to basically a [landlocked] piece of property." Because the application concerned the property's current use and Lot 251.08 was undeveloped, the Board rejected KBS's objections as unsupported and noted any future development of Lot 251.08 required a new application. The Board unanimously approved the application.

On December 14, the Board memorialized its approval of Sudler's minor subdivision and final site plans in Resolution SD#2480. The Board found:

1. The applicant seeks minor subdivision and site plans to subdivide Lots 240 and 251 in Block 1160 into 4 new lots. The proposed properties would be new Lots 240, 251.01, 251.02, and 251.08 as shown on the plans. Existing building will remain on proposed Lots 240, 251.01, and 251.02. Proposed Lot 251.08 would remain vacant. Minor site plans approvals are required to address the reduced sized properties.

2. The site is in the southern portion of the Township in the Lakewood Industrial Park, southwest of the airport. The land has frontage along the northern side of Oak Street and the eastern side of Towbin Avenue. Oak Street is an improved municipal roadway with a 60' wide right-of-way. Curb exists along Oak Street, but sidewalk does not. Towbin Avenue is partially improved along the site frontage but is mostly an unimproved roadway. Towbin Avenue has a 60' wide right-of-way.

3. The existing properties contain about 59 acres. Lot 240 is a rectangular site of about 4 acres with frontage on Oak Street and contains an existing one-story masonry building. Lot 251 is an irregular parcel of approximately 55 acres containing 2 large buildings. The building along Towbin Avenue is completed and occupied by a tenant. The building along Oak Street is nearing completion. A large portion of the tract is indicated as wetlands and part of critical wildlife habitat to be preserved under an existing [Coastal Area Facility Review Act (CAFRA)] Permit. Virtually all the wetlands will be located on the proposed large vacant lot. However, a couple of access easements are proposed for potential future development of a section void of wetlands.

4. Proposed Lot 240 would remain virtually unchanged in size containing 4.04 acres with frontage along Oak Street. The existing one-story masonry building will remain. Site improvements were recently constructed along the eastern property line in accordance with SP#2079. In addition to a minor conveyance, this property is part of the subdivision because an access easement is being proposed through the site. Proposed Lot 251.08 would contain 40.21 acres, remain vacant, and have frontage along the unimproved portion of Towbin Avenue. Proposed Lot 251.01 would become an "L" shaped tract and contain 7.70 acres with frontage along Oak Street. The 74,000SF building on this proposed lot is nearing completion. Proposed Lot 251.02 would contain 7.05 acres and have frontage along Towbin Avenue. This proposed site would contain the existing 40,000SF building. The proposed minor subdivision has been designed for all new lots to meet the minimum area requirement for the zone of 3 acres.

The Board granted the requested variances reasoning they were "preexisting, unique conditions affecting the property which result[ed] in a hardship to" Sudler. Approval was conditioned on Sudler "resubmit[ing] th[e] entire proposal for re-approval should there be any deviation from the terms and conditions of th[e] resolution or the documents submitted as part of th[e] application, all of which are made a part hereof and shall be binding on the applicant."

KBS filed a complaint in lieu of prerogative writs seeking invalidation of the Resolution and to require Sudler to obtain a use variance for approval of the access easements to new Lot 251.08. The four-count complaint alleged: the Board did not have jurisdiction over the application, as the proposal required a use variance pursuant to N.J.S.A. 40:55D-70; Sudler's published notice was deficient because it failed to meet the requirements of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163; the application was "an improper effort . . . to circumvent . . . proper procedure"; and the Board acted arbitrarily and capriciously because "the proofs as presented . . . failed to address the zoning and planning issues "in the application. After a bench trial, the court issued a written decision and entered final judgment in favor of defendants, dismissing KBS's complaint with prejudice.

On appeal, KBS argues: Sudler's application required variance approval for a second principal use because the "two new sub roads on Lot 251.01" were for the "exclusive purpose" of providing vehicle access to Lot 251.08; the public notice was deficient; and the Board's approval was arbitrary, capricious, and unreasonable.

II.

"[W]e...