Lincoln Heights Ass'n v. Township of Cranford Planning Bd.
| Decision Date | 06 February 1998 |
| Parties | LINCOLN HEIGHTS ASSOCIATION, a Non-Profit Corporation of the State of New Jersey, Plaintiff, v. TOWNSHIP OF CRANFORD PLANNING BOARD, Edwards Super Food Store, Crane Realty, L.P., and Township Committee of the Township of Cranford, Defendants. |
| Court | New Jersey Superior Court |
Jeffrey Kantowitz, West Orange, for plaintiff (Goldberg, Mufson & Spar, attorneys).
John J. Russo, for defendant Township of Cranford Planning Board (Joseph P. Depa, Jr., attorney, Cranford).
Brian W. Fahey, Springfield, for defendants Edwards Super Food Store and Crane Realty, L.P. (Fahey & Fahey, attorneys).
Albert N. Stender, Cranford, for defendant Township Committee of the Township of Cranford (Stender & Hernandez, attorneys).
This prerogative writ action concerns the construction and operation of a grocery store as a conditional use in the Township of Cranford.
On August 5, 1996 Edwards Super Food Store (Edwards) filed a preliminary and final major site plan application for the conditional use of a grocery store on property located within the ROI-3 zone as designated by the Cranford Land Development Ordinance (CLDO). The CLDO provides that a grocery store is a conditional use in the ROI-3 zone.
In Cranford, a site plan applicant seeking to operate a grocery store as a conditional use must satisfy five specific standards as listed in CLDO sec. 136-35(B)(17)(a) through (f). Subsections (a) through (e) concern access to major arterial roads, minimum lot area and frontage, set backs of building walls, minimum building size and off-street parking requirements. CLDO sec. 136-35(B)(17)(f) (hereinafter subsection (f)) provides, "[o]ther yard and building requirements shall comply with the ROI-3 Zone standards unless superseded above." There is no dispute that Edwards satisfied the requirements of subsections (a) through (e); only subsection (f) is at issue.
In its application, Edwards sought four waivers from development requirements and standards relating to (1) lighting, (2) signage, (3) a 10% landscaping coverage requirement for the parking lot area, and (4) the size of parking stalls. These requirements, termed "design standards: specific" under CLDO sec. 136-23, are part of CLDO Article IV entitled "Development Requirements and Standards." On the other hand, Cranford's zoning requirements or standards are set forth in Article V entitled "Zoning."
The conditional use and site plan application was considered by the Cranford Planning Board (Board) during public hearings held on September 25, October 16, and November 6, 1996. During the hearings, the Board heard voluminous expert and public testimony regarding the Edwards application. At the conclusion of the November 6 hearing, the Board voted 7-1 to approve the conditional use and site plan application with waivers and conditions. Waivers from the land development requirements were granted relating to lighting, signage and landscaping coverage of the parking lot area, but the applicant's request for waiver relating to the size of parking stalls was denied. On December 4, 1996, the Board adopted a resolution memorializing the Board's approval of the application with waivers and conditions.
Plaintiff, Lincoln Heights Association (LHA) is a citizens' rights group whose members are local residents opposed to the proposed grocery store site. They challenge the site plan approval with waivers claiming (1) the Board did not have jurisdiction to consider Edward's application; (2) the Board considered unsworn written petitions in support of Edward's application and in violation of the public's right to cross-examine witnesses; (3) a Board member whose parents live in close proximity to the proposed grocery store site and whose parents' names appeared on petitions submitted in support of the application should have disqualified himself due to an alleged conflict of interest, because his parents would have directly benefited from approval of the application; (4) Board members who made statements in favor of a grocery store in Cranford during a political campaign for municipal office in the year preceding the Edwards' application should have disqualified themselves because they prejudged the application; (5) the public was denied its right to cross-examine an expert traffic witness who was unavailable on the third and final day of public hearings on the application; (6) the Board's resolution approving the application was inadequate and legally insufficient; and (7) the Board's decision was otherwise arbitrary and capricious 1.
LHA argues that the zoning board of adjustment had exclusive jurisdiction to consider this site plan application for a conditional use. LHA contends that Edwards did not satisfy the specific criteria for the conditional use of a grocery store within the ROI-3 zone. Edwards allegedly was unable to satisfy the subsection (f) requirement that all grocery store conditional use applicants also satisfy all general zoning requirements in the ROI-3 zone 2. Edwards is accused of deviating from general zoning requirements which are incorporated by reference as a specific conditional use requirement unique to a grocery store. LHA contends that deviation from this specific conditional use requirement requires a "d" variance which only the Board of Adjustment has authority to grant pursuant to N.J.S.A. 40:55D-70(d)(3). Therefore, LHA concludes, the Board did not have authority to waive this specific requirement.
Edwards disagrees with the LHA's characterization of its application as a request for variance from a specific conditional use requirement. Edwards argues that the Board had jurisdiction to hear this matter pursuant to N.J.S.A. 40:55D-60 and N.J.S.A. 40-55D-67. Edwards further claims to have satisfied all of the specific conditional requirements and, therefore, there was no need to secure a variance from the Board of Adjustment. Edwards claims that the waivers that were granted related to general development and design requirements and not to general zoning requirements. Furthermore, Edwards maintains, in the alternative, that subsection (f) is not a specific conditional use requirement, but is rather a reference to general requirements of all uses within the ROI-3 zone relief from which may properly be had from the Board in the form of a waiver or "c" variance.
Jurisdiction over site plan and conditional use applications lies ordinarily with the planning board. N.J.S.A. 40:55D-67. The planning board also has the authority to permit variances from any requirement generally applicable in the zone which are ancillary to its review of a site plan or conditional use application; such variances are commonly referred to as "c" variances. N.J.S.A. 40:55D-60; N.J.S.A. 40:55D-70(c); White Castle v. Planning Board of Clifton, 244 N.J.Super. 688, 583 A.2d 406 (App.Div.1990), certif. den. 126 N.J. 320, 598 A.2d 880 (1991); William M. Cox, New Jersey Zoning and Land Use Administration, Sec. 17-3 (1997). The planning board also has authority to grant waivers and exceptions from sub-division and site plan ordinances pursuant to N.J.S.A. 40:55D-51(b) 3, but the planning board has no authority to waive or alter a conditional use standard. Wawa Food Market v. Planning Bd., 227 N.J.Super. 29, 34-38, 545 A.2d 786 (App.Div.1988). Relief from specific standards contained in a zoning ordinance may be sought only through the variance procedure pursuant to N.J.S.A. 40:55D-70(d)(3), since a "variance" is the only procedure by which one may seek "permission to depart from the literal requirements of a zoning ordinance...." Id. at 36, 545 A.2d 786 (quoting N.J.S.A. 40:55D-70).
Therefore, an applicant who deviates from a conditional use standard must seek relief from the board of adjustment, which has exclusive jurisdiction to grant variances permitting a "deviation from a specification or standard ... pertaining solely to a conditional use; " such variances are commonly referred to as "d" variances. N.J.S.A. 40:55D-70(d)(3) (emphasis added); White Castle, supra; PRB Enterprises, Inc. v. South Brunswick Planning Board, 205 N.J.Super. 225, 500 A.2d 732 (App.Div.1985).
Consequently, to determine where jurisdiction lies in the instant case, this court must determine the type of requirements from which waivers were sought and granted. LHA contends that the subsection (f) requirements were specific to the conditional use of a grocery store. Edwards contends that those requirements were not specific to the conditional use of a grocery store but were general zoning conditions relief from which could be had from the Board in the form of a waiver or a "c" variance.
Subsection (f) requires that the "yard and building requirements ... comply with the ROI-3 standards." The schedule of area, yard and building requirements for each of Cranford's several zones, including the ROI-3 zone, are found at the end of the CLDO in a table designated as "Schedule 1". There is no dispute that Edward's application complied with these requirements relating to minimum lot size, minimum yard areas and setbacks and the like and Edwards did not seek or require waivers or variances from same. In this regard, Edward's application complied with subsection (f) for the conditional use of a grocery store in the ROI-3 zone and did not require a variance from any of the specific conditional use requirements. Therefore, jurisdiction was properly before the planning board and the planning board was obligated to approve the conditional use application. See Exxon Co., U.S.A. v. Livingston Tp. in Essex Cty., 199 N.J.Super. 470, 489 A.2d 1218 (App.Div.1985).
Furthermore, it is clear that the standards from which Edwards sought waivers were site plan design standards which the planning board had authority to waive when it found that...
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