Lakewood Realty Assocs. v. Lakewood Twp. Planning Bd., DOCKET NO. A-3750-16T4
| Decision Date | 05 February 2019 |
| Docket Number | DOCKET NO. A-3750-16T4 |
| Parties | LAKEWOOD REALTY ASSOCIATES, Plaintiff-Appellant, v. LAKEWOOD TOWNSHIP PLANNING BOARD and RD LAKEWOOD, LLC, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Sabatino and Mitterhoff.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2094-15.
R.S. Gasiorowski argued the cause for appellant (Gasiorowski & Holobinko, and Sills Cummis & Gross, PC, attorneys; R.S. Gasiorowski, on the briefs).
Kelsey A. McGuckin-Anthony argued the cause for respondent Lakewood Township Planning Board (Dasti, Murphy, McGuckin, Ulaky, Koutsouris & Connors, attorneys; Jerry J. Dasti, of counsel; Martin J. Buckley, on the brief).
Robert C. Shea argued the cause for respondent RD Lakewood, LLC (R.C. Shea & Associates, attorneys; Robert C. Shea, of counsel; Dina M. Vicari, on the brief).
This matter arises from the development of a commercial park in Lakewood, New Jersey. Respondent RD Lakewood, LLC ("RD Lakewood") purchased property within the project site from the initial developer, Cedarbridge Development Urban Renewal Corporation ("Cedarbridge").1 Cedarbridge developed the property for the Township of Lakewood. After the project site was subdivided with municipal approval, three development companies, including RD Lakewood, purchased some of the subdivided lots. The companies sought land-use approvals for various structures and uses within the project, anticipating their structures would share a water retention basin.
RD Lakewood applied to the Township Planning Board for site plan approval and certain minor variances for its portion of the project. RD Lakewood presented factual and expert testimony at the Board hearing in support of its application. One objector participated in the hearing before the Board: appellant Lakewood Realty Associates ("LRA"). Represented bycounsel, LRA presented arguments to the Board and cross-examined the applicant's witnesses. LRA also presented its own competing expert, who testified why, in his opinion, the Board should deny the application.
The Board approved the application in a resolution in June 2015. LRA then filed an action in lieu of prerogative writs in the Law Division, seeking to set aside the approval on various grounds, including alleged flaws in the public notice that had been issued before the Board hearing. The trial court rejected those contentions. This appeal by LRA ensued. In the meantime, RD Lakewood has refrained from starting construction, due to the pendency of the litigation and appeal.
Although we disagree with most of LRA's claims of error, we reverse in part the trial court's decision upholding the Board's approval. As amplified in this opinion, we do so for two important reasons.
First, we reverse the court's finding that the public notice issued for the Board hearing was adequate. We instead conclude the notice was materially deficient under controlling case law, including Perlmart of Lacey, Inc. v. Lacey Township Planning Board, 295 N.J. Super. 234 (App. Div. 1996), and Pond Run Watershed Ass'n v. Township of Hamilton Zoning Board of Adjustment, 397 N.J. Super. 335 (App. Div. 2008). Most significantly, the notice did not discloseto the public and neighboring property owners that the proposed uses, which were tersely described as a "hotel" and a "bank," would include such components within the hotel as a restaurant with a liquor license and banquet facilities.
Second, we must reverse the trial court's decision on procedural grounds, because RD Lakewood impermissibly provided to the court an expert submission and other materials that had not been part of the record presented to the Board before it approved the application. In all other respects, we reject appellant's contentions.
We summarize the facts and procedural history necessary for context. This case involves a proposed development within the Cedarbridge Corporate Campus ("the Campus"), which is a corporate park located in the DA-1 Cedarbridge Redevelopment Area in Lakewood. The Campus resulted from a redevelopment project spearheaded by Cedarbridge. The Township passed a resolution permitting the Mayor to execute an option agreement with Cedarbridge. On June 1, 2000, the Township and Cedarbridge executed the option agreement.2
In 2002, Cedarbridge filed an application for general development approval and preliminary major subdivision approval for the Campus. The Department of Environmental Protection issued a Coastal Area Facilities Renew Act ("CAFRA") permit in August 2002, granting Cedarbridge permission under CAFRA to construct an office complex.
The project site at contention in this litigation is a portion of this Campus, namely Block 961.01, Lots 2.02 and 2.03. These lots resulted from two subdivisions of Block 961.01. In August 2005, the Board granted a resolution authorizing a final major subdivision for Lots 1.02 and 2 in Block 961.01. The resolution subdivided Lots 1.02 and 2 into four new lots: Lot 2.01, 2.02, 2.03, and 2.04. Pursuant to the Board's approval of a subsequent resolution in 2012, Lots 1.02 and 2.01 were further subdivided into two new lots: Lot 2.05 and 2.06.
In 2014, defendant RD Lakewood filed a development application with the Board for the proposed construction of a bank and a hotel on Lot 2.02 witha stormwater basin on Lot 2.03.3 RD Lakewood accordingly entered into an agreement with Cedarbridge for the purchase of Lot 2.02 in July 2014.
The Township engineer, Terrence Vogt, reviewed RD Lakewood's submission in support of its development application and issued an engineering review letter in February 2015. The review letter confirmed the storm management for the project - a basin on Lot 2.03 - would be built under another company's Board-approved application. The review letter further noted a variance was requested for the rear-parking setback, proposing a setback for Lot 2.02 of five feet where twenty is required.
Furthermore, Vogt recommended RD Lakewood provide the following to the Board: a traffic analysis, a vehicular circulation plan, testimony to justify reducing the number of off-street parking spaces, an architectural rendering for the bank, testimony regarding the hotel building height, testimony regarding HVAC equipment location and proposed screening for both buildings, testimony regarding proposed loading activities at the facilities, testimony regarding if trash and recycling collection will be provided by the Township Department ofPublic Works or by private contractor, and testimony regarding ownership and maintenance of the proposed wet well, pump station, and generator.
Before the public hearings on RD Lakewood's application, the developer prepared a public notice, which was both published and duly mailed to all property owners within 200 feet of the site. The notice indicated that RD Lakewood had "applied to the Lakewood Township Planning Board for amended preliminary and final major site plan of Lots 2.02 & 2.03 in Block 961.01 on [sic] located on the corner of New Hampshire Avenue and Pine Street, in the DA-1 zoning district to construct a hotel as well as a bank[.]" (Emphasis added). The notice listed the parking setback and parking space variances requested, indicated the hearing had been scheduled for March 3, 2015 at the Lakewood Township Municipal Building at 6:00 p.m., and directed the reader to where and when maps and supporting documents could be accessed.
After being adjourned twice, the hearing on RD Lakewood's application went forward before the Board on April 14. RD Lakewood applied for a submission waiver and requested variances for a rear-parking setback and a small variance for the number of parking spaces. Counsel representing LRA, aninterested party and objector, was present at the hearing.4 LRA's counsel asked whether, in compliance with the engineer's report, a traffic study had been submitted, and the Board's attorney acknowledged that a traffic study had not been submitted.
Brian Flannery, a licensed engineer and professional planner, appeared before the Board with RD Lakewood's counsel, Adam Pfeffer, to answer technical questions. Another expert, Scott Kennel, conducted a traffic analysis for the site and testified at the hearing about this analysis.
Flannery's testimony addressed a number of issues, including testimony requested in Vogt's review letter. Among other things, Flannery identified some differences between the approved CAFRA plan and the application, explaining those differences were to accommodate the engineering features, including shifting the basin to Lot 2.03. Flannery also testified about the parking variance, consenting to the Board's request to add two parking spots in order to eliminate the need for the variance.
LRA's counsel questioned Flannery about an easement on Lot 2.03 and about the restaurant and banquet facilities in the proposed hotel. LRA's counselasked Flannery about whether or not the parking calculation took into account the people coming to the restaurant and banquet facilities. Flannery answered that the parking calculations used are typical for hotels of this type and he felt the number of parking spaces was more than sufficient and complied with the ordinance.
Before the Board voted on the application, LRA's counsel called his own witness, Gordon Gemma, a licensed professional planner. Gemma testified to numerous plan deficiencies, such as the plan's interference with an access road on Lot 2.03 and that the plan is detrimental to the purpose of a 2013 smart growth plan. In addition, Gemma testified...
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