Manalapan Realty, L.P. v. Township Committee of Tp. of Manalapan

• Decision Date: 06 June 1995
• Citation: 140 N.J. 366,658 A.2d 1230
• Parties: MANALAPAN REALTY, L.P., Plaintiff-Appellant, v. TOWNSHIP COMMITTEE OF the TOWNSHIP OF MANALAPAN and The Township of Manalapan, a municipal corporation of the State of New Jersey, Defendants-Respondents. MANALAPAN REALTY, L.P., a New Jersey limited partnership, Plaintiff-Appellant, v. MANALAPAN TOWNSHIP PLANNING BOARD, Defendant-Respondent. HOME DEPOT USA, INC., Intervenor-Appellant, v. TOWNSHIP COMMITTEE OF the TOWNSHIP OF MANALAPAN, The Township of Manalapan, and Manalapan Township Planning Board, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 366

140 N.J. 366

658 A.2d 1230

MANALAPAN REALTY, L.P., Plaintiff-Appellant, v. TOWNSHIP COMMITTEE OF the TOWNSHIP OF MANALAPAN and The

Township of Manalapan, a municipal corporation of

the State of New Jersey, Defendants-Respondents.

MANALAPAN REALTY, L.P., a New Jersey limited partnership, Plaintiff-Appellant, v. MANALAPAN TOWNSHIP PLANNING BOARD, Defendant-Respondent.

HOME DEPOT USA, INC., Intervenor-Appellant, v. TOWNSHIP COMMITTEE OF the TOWNSHIP OF MANALAPAN, The

Township of Manalapan, and Manalapan Township

Planning Board, Defendants-Respondents.

Supreme Court of New Jersey.

Argued Jan. 17, 1995.

Decided June 6, 1995.

Michael M. Rosenbaum, Short Hills, for appellant Manalapan Realty, L.P., etc. (Budd, Larner, Gross, Rosenbaum, Greenberg & Sade, attorneys; Mr. Rosenbaum, Robert Novack, and Mary L. Moore, on the briefs).

Michael B. Steib, Middletown, for appellant Home Depot U.S.A., Inc.

Robert F. Munoz, Freehold, for respondents Tp. Committee of the Tp. of Manalapan and the Tp. of Manalapan (Lomurro, Davison, Eastman & Munoz, attorneys).

James H. Gorman, Shrewsbury, for respondent Manalapan Tp. Planning Bd.

The opinion of the Court was delivered by

COLEMAN, J.

This appeal requires us to determine whether two amendments to the Township of Manalapan's (Township) zoning ordinance that exclude Home Depot U.S.A., Inc. (Home Depot) from Manalapan's C-1 regional commercial shopping-center district are substantially consistent with the Township's Master Plan (Master Plan). A majority in the Appellate Division, in an opinion published at 272 N.J.Super. 1, 639 A.2d 318 (App.Div.1994), held the amendments not arbitrary, capricious or unreasonable, and therefore substantially consistent with the Master Plan. We agree and affirm.

I

A.

Before 1990, the Township created a C-1 regional commercial shopping-center district through its zoning ordinance. The entire C-1 district is comprised of approximately 100 acres divided into two tracts. The C-1 district is bounded by Syms Road to the north, Craig Road to the south and U.S. Highway 9 to the east. Plaintiff Manalapan Realty, L.P. (Realty) is the owner of one of the two tracts consisting of approximately fifty-seven acres. Before October 1990, Realty built the Manalapan Mall on a portion of its property that contains approximately 186,000 square feet of commercial space.

On October 16, 1990, Realty submitted an application to the Township Planning Board (Board) for preliminary site-plan approval to expand its commercial-retail space to approximately 500,000 square feet and to rename the mall the Manalapan Epicenter (Epicenter). The proposed Epicenter included a number of anchor stores, one of which was to be a "home improvement center" operated by Home Depot. Home Depot engages in a form of merchandising known as "warehouse selling" or "warehouse format of selling." This concept represents an expansion of traditional retail stores. Examples of warehouse selling stores are Toys "R" Us, Staples, an office supply store, and Shopper's Food Warehouse, a warehouse approach to supermarkets.

When the application for site-plan approval was submitted, and at the time of the first public hearing on the application on May 9, 1991, the Manalapan Land Use and Development Ordinance (Manalapan Ordinance), § 130.94, permitted the following pertinent uses in a commercial shopping center:

(1)

(a) Retail stores, shops and markets.

(b) Personal services.

(c) Offices and business services.

(d) Banks and fiduciary institutions.

(e) Indoor recreation facilities.

* * * * * *

(2) Civic center uses....

(3) Temporary buildings....

(4) Farms.

One of the issues raised during the hearings before the Board on the site-plan application was whether Home Depot was a "retail store," a permitted use under the ordinance, or a "warehouse," a use not permitted under the ordinance. In addition, substantial public opposition to Home Depot as a proposed tenant in the Epicenter emerged. Off-site traffic and the nature of the Home Depot business were major concerns of the Board and members of the public as well. In an effort to resolve these and other concerns, Realty's experts met with the Township Committee, the Board and their respective planning experts. Two members of the Board also served as members of the Township Committee. While the Board conducted hearings on the application, it was formulating simultaneously a master plan pursuant to N.J.S.A. 40:55D-28 to guide the projected growth in the Township through the year 2010. On June 13, 1991, the Board requested its professional planner to address the question whether a Home Depot is a permitted retail use in the C-1 district. On June 27, 1991, the Board's senior supervising planner, Richard S. Cramer, advised the Board that Home Depot was a permitted retail store under the existing ordinance.

The Board conducted further public hearings on May 23 and July 18, 1991. After strong public opposition to Home Depot continued, the Township Committee adopted two amendments to the zoning ordinance on July 24, 1991. The first amendment more specifically defined the meaning of retail stores, shops and markets as permitted uses in the C-1 district. It provided:

(a) Retail stores, shops and markets including establishments engaged in the selling of paint, glass, wallpaper, or hardware items for household use, but not including any establishment engaged in the sale of lumber or building materials or storing, displaying, or selling materials outside a completely enclosed building.

[Manalapan Ordinance, § 130.94.]

The second amendment added a subsection to define "building materials" as used in the amendment. It defined "building materials" as:

[m]aterials that can be arranged, united or joined to construct a building or structure. Such materials include, but are not limited to, rough or dressed lumber, millwork, roofing, shingles, wallboard, molding, plywood, sheetrock, bricks, doors, windows, paneling, concrete block, tiles, cabinets or plumbing fixtures.

[Manalapan Ordinance, § 130.52.]

Both amendments were adopted after the Board, pursuant to N.J.S.A. 40:55D-26, found the proposed amendments to be substantially consistent with the Master Plan adopted shortly before the amendments were enacted.

B.

On September 11, 1991, Realty filed its first complaint in lieu of prerogative writs challenging the validity of the amendments to the zoning ordinance. At the Board's next meeting, on September 12, 1991, the Board approved Realty's site plan application without Home Depot as an anchor tenant. The Board's resolution stated that after the zoning ordinance was amended during the pendency of the site-plan application, Realty modified its application to withdraw Home Depot as an anchor tenant. On October 1, 1991, Realty filed another complaint in lieu of prerogative writs challenging the Board's failure to resolve whether Home Depot was a permitted use prior to the amendments to the ordinance.

The Appellate Division accurately described the disposition of the two complaints by the Law Division and the issues raised in the appeal:

The trial court consolidated these actions. Subsequently, it granted Home Depot leave to intervene as a plaintiff. After a six day bench trial, the trial court issued a written opinion [dated September 23, 1992] which concluded that the amendment to Manalapan's zoning ordinance was arbitrary and capricious and therefore invalid. The trial court also concluded that the proposed Home Depot store was a permitted use under Manalapan's prior zoning ordinance, which was reinstated as a result of the invalidation of the amended ordinance. Consequently, the trial court vacated the paragraphs of the Board's resolution which had left this question for later resolution in the event the ordinance were invalidated. Thereafter, Realty and Home Depot filed motions to compel defendants to reimburse them for various litigation expenses. These motions were granted in part and denied in part.

The Township Committee appeals from the parts of the judgment declaring that the amended zoning ordinance is invalid and that the proposed Home Depot store is a permitted use under the now reinstated prior ordinance. The Township Committee also appeals from the post-judgment order awarding Realty and Home Depot various litigation expenses. The Board appeals from the part of the judgment which declares the Home Depot store to be a permitted use and from the post-judgment order awarding plaintiffs various litigation expenses. Realty and Home Depot cross-appeal from the parts of the post-judgment order which denied an award of the full amount of litigation expenses which they had sought. We consolidate the two appeals.

[Manalapan, supra, 272 N.J.Super. at 7-8, 639 A.2d 318.]

The Appellate Division reversed the Law Division and concluded that "the essential parts of Manalapan's amended zoning ordinance excluding retail stores which sell lumber or building materials ... are valid. Although the definition of 'building materials' contained in this amended ordinance may be too broad, any invalid part of that definition would be severable from the remainder of the ordinance and thus would not affect its validity." Id. at 8, 639 A.2d 318. The case was remanded to the Law Division to consider Realty's claim that the definition of building materials is overly broad. Id. at 15, 639 A.2d 318. The Appellate Division also found the amended ordinance was properly adopted even if in response to public opposition, id. at 12, 639 A.2d 318; that the ordinance as amended does not represent spot zoning, id. at 13-14, 639 A.2d 318; and that the amended ordinance is not inconsistent with the Master Plan. Id. at 13, 639 A.2d 318.

Judge Wefing filed a separate opinion concurring in part and dissenting in part. Id. at 15, 639 A.2d 318. She concluded that the amended ordinance is inconsistent with the Master Plan and is therefore violative of the Municipal Land Use Law, N.J.S.A. 40:...