Sadowe v. AutoZone Ne., LLC

JANET SADOWE, as Trusteeof the Trust U/W of DENIS L. SADOWE, Plaintiff-Appellant, v. AUTOZONE NORTHEAST, LLC, ROUTE 37 EAST ASSOCIATES, LLC,and the TOMS RIVER TOWNSHIP PLANNING BOARD, Defendant-Respondents.

DOCKET NO. A-0585-18T3

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued December 9, 2019

September 2, 2020

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Ostrer and Susswein.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3221-17.

Joseph Michelini argued the cause for appellant (O'Malley, Surman & Michelini, attorneys; Susan E. DiMaria, on the briefs).

Francis J. DeVito argued the cause for respondents Autozone Northeast, LLC and Route 37 East Associates (Francis J. DeVito, PA, attorneys; Francis J. DeVito, on the brief).

Kelsey A. McGuckin-Anthony argued the cause for respondent Toms River Township Planning Board (Dasti, Murphy, McGuckin, Ulaky, Koutsouris & Connors, attorneys; Gregory P. McGuckin, of counsel; Kelsey A. McGuckin-Anthony, on the brief).

PER CURIAM

Plaintiff Janet Sadowe challenged the Toms River Township Planning Board's approval of a site plan and a side-yard variance to permit defendant AutoZone Northeast, LLC (AutoZone) to construct a 6,194-square-foot retail store on a 1.08 acre lot on eastbound Route 37. She appeals from the trial court's order dismissing her complaint in lieu of prerogative writs. Renewing arguments she presented to the trial court, Sadowe contends the notice of hearing was deficient, and AutoZone failed to satisfy the requisites for its bulk variance under paragraph 1 or 2 of N.J.S.A. 40:55D-70(c). She also contends the Board demonstrated bias toward her, and improperly barred her expert from testifying about certain environmental issues. Having considered these arguments in light of the record and applicable legal principles, we affirm.

AutoZone's property — formally, Lot 32.01, Block 507.02 located at 797 Route 37 East (the Property) — constitutes a rectangular notch of a larger property to the east and south, occupied by Life Storage, a self-storage facility.To the west of the Property are a Burger King, which fronts Route 37, and a Clarion Hotel, behind it. AutoZone proposed to demolish a defunct and dilapidated garden center on the Property to make way for its new retail store. The testamentary trust of which Sadowe is trustee owns the Burger King property. Sadowe was the sole objector to AutoZone's application.

The Property is twenty-five feet narrower than the 150-foot minimum width and frontage the local zoning ordinance requires. The garden center had a variance from that requirement. AutoZone's proposed use — the retail sale of auto parts and accessories — is permitted in the Rural Highway Business Zone. AutoZone's building would cover roughly thirteen percent of the lot, well less than the permitted twenty-percent coverage that is permitted. The Board ultimately granted AutoZone a variance that permitted it to provide a 14.33-foot side yard setback from the storage facility property, instead of the required 20-foot setback.

In a cogent written opinion, Assignment Judge Marlene Lynch Ford affirmed the Board's decision and dismissed the complaint. In reviewing that decision, we apply the same standard as the trial court in assessing Sadowe's challenge to the Board's decision. See CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd./Bd. of Adjustment, 414 N.J. Super. 563, 577 (App. Div. 2010)."Simply stated, a reviewing court must determine whether the Board followed statutory guidelines and properly exercised its discretion." Id. at 578. Put another way, a person challenging a variance must demonstrate the board's decision was "arbitrary, capricious, or unreasonable." Northgate Condo. Ass'n v. Borough of Hillsdale Planning Bd., 214 N.J. 120, 145 (2013). We grant the Board "wide latitude" in exercising its discretion because it knows its local conditions. Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005). We review de novo questions of law, such as whether the Board had jurisdiction over a matter. Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd., 397 N.J. Super. 335, 350 (App. Div. 2008).

We turn first to Sadowe's contention that AutoZone's initial public notice violated N.J.S.A. 49:55D-11, thereby depriving the Board of jurisdiction, and rendering its action void. Sadowe contends the notice was so general that it failed to apprise the public what AutoZone sought from the Board. She also contends a second detailed notice, which AutoZone submitted along with a revised plan, did not cure the first notice's infirmity. We disagree.

AutoZone's first notice announced its intention to construct a "retail auto supply parts and accessories store of approximately 7,382 sq. ft." on theidentified block and lot.¹ The notice disclosed the time and place of the meeting, advised that the public may appear to comment or object, and that the maps, plans, and related documents were available for review. However, in contrast to a limited list of variances and waivers that AutoZone submitted to the Board, its public notice referred to an extensive number of potential variances "as may be required."

In its list to the Board, AutoZone stated that it proposed to retain the existing variances from the minimum lot width and minimum lot frontage requirements. AutoZone sought new variances from the twenty-foot single-side-yard setback and fifty-foot both-sides setback requirements, to allow a five-foot setback from the storage facility property. AutoZone also sought variances from sign height and size requirements. In addition, AutoZone sought a waiver from the minimum curb radius for right turns and from the ban on dead end parking.

In its public notice, AutoZone stated that it had filed an application "for a simultaneous minor and/or standard site plan approval and/or simultaneouspreliminary and final site plan approval." With regard to variances, the notice stated that AutoZone applied for:

a parking variance for size, number and locations, a lighting variance, bulk variance for building height, lot area, width, depth and setback, side yards, buffers, access and drive aisle size and locations, loading area requirements and size, building area, screening requirements, tree cutting and tree replacement requirements, landscape requirements, impervious lot coverage, FAR, and pylon, monument and façade signs and use of neon and a subdivision and/or lot consolidation as may be required and sight triangle requirements and variances and waivers, all specifically as otherwise provided for in the Township ordinances and any other applicable variances, waivers from the requirements of the land use development ordinances for the Township of Toms River that may be required . . . .

[(Emphasis added).]

At the initial hearing, the Board rejected Sadowe's counsel's contention that the public notice was deficient because it was overbroad. The Board voted 5-0 to accept the notice and exercise jurisdiction. The Board heard from AutoZone's engineer, planner, and traffic consultant. Sadowe's counsel vigorously cross-examined them, raising issues about the building's size; the need for the setback variances; and traffic circulation and access on the Property, particularly involving firetrucks and large delivery trucks. The Board agreed to continue the hearing on a subsequent date.

Before that second hearing occurred, AutoZone revised its plan by reducing its proposed building to 6,194 square feet, altering its parking configuration, and widening its side yards. Aside from retaining the frontage and minimum lot width variances, AutoZone proposed only a variance to allow a 14.33 foot side-yard setback (instead of the required twenty feet) along its boundary with the self-storage facility's property. AutoZone sent out another notice specifically identifying those three variances, disclosing to the reader both the existing requirement and its proposed deviation. The notice also identified the waivers for minimum curb radii and dead end parking and identified several other potential waivers. It stated that AutoZone would apply for "other variances and waivers that may be required." As it did initially, the notice listed the property's location; when and where the Board would hold its hearing; and when and where maps and documents could be reviewed.

"[P]roper public notice in accordance with the requirements of the MLUL is a jurisdictional prerequisite for a zoning board's exercise of its authority." Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adj., 397 N.J. Super. 335, 350 (App. Div. 2008). The Municipal Land Use Law (MLUL) requires applicants to give notice to the public, N.J.S.A. 40:55D-12(a), and to owners of properties within two-hundred feet of the property that is the subjectof the hearing, N.J.S.A. 40:55D-12(b). Along with identifying the property to be discussed, stating when and where the hearing will be held, and when and where maps and documents may be viewed, the notice must state "the nature of the matters to be considered." N.J.S.A. 40:55D-11. That last aspect of a notice is at issue here.

The notice must "fairly apprise" the public and neighboring property owners of the "nature and character of the proposed development." Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 237 (App. Div. 1996). The notice "should fairly be given the meaning it would reflect upon the mind of the ordinary layman, and not as it would be construed by one familiar with the technicalities solely applicable to the laws and rules of the zoning commission." Id. at 238 (internal quotations omitted).

We held notices inadequate when they failed to describe the applicant's proposed...