ROCKAWAY SHOPRITE ASSOCIATES INC v. PLANNING BOARD OF THE CITY OF LINDEN CITY OF LINDEN CITY COUNCIL OF CITY OF LINDEN AND LINDEN DEVELOPMENT LLC (2013)

Plaintiff Rockaway Shoprite Associates, Inc. (Rockaway Shoprite) appeals the Law Division's March 30 and May 29, 2012 orders dismissing the second and third counts of its amended complaint with prejudice.   We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

This is the second appeal involving the proposed development of an industrial site in Linden owned by defendant Linden Development, LLC (Linden Development).   The site was formerly owned and operated by General Motors Corporation (GM).  We outlined the background of the dispute in our initial opinion, as follows:

The August 2002 City Master Plan listed the former GM site as H–I heavy industrial and L–I light industrial use in accordance with Linden's then zoning ordinance.   The entire property is approximately 105 acres in size.

Linden Development, an affiliate of a commercial real estate developer that specializes in redeveloping industrial sites, purchased the GM site in December 2007 with the intention of creating a combination of retail and commercial uses, multi-family residential use, and industrial and warehouse uses.   Specifically, the plan calls for a change in zoning for forty-five acres fronting Route 1 and 9 to allow retail and commercial uses, with Walmart and Lowe's as two of the prospective tenants, and 2.5 acres to allow multi-unit residential development.   The remainder of the GM site, located in the rear westerly portion of the property, is intended to be developed with new industrial and warehouse buildings.

Having acquired the GM site without the necessary zoning ordinances or site plan approvals in place, Linden Development requested that the City effectuate zoning changes as needed for the planned development.   This request for a change in zoning actually coincided with the time for the Planning Board (Board) to conduct its six year periodic re-examination of the City Master Plan, as required by N.J.S.A. 40:55D–89, due in January 2009.

To this end, a proposed zone delineation map and a sketch with proposed zone line changes were prepared.   On June 13, 2008, Linden Development filed an application for major subdivision approval with the Board to consolidate certain lots and establish new lots within the GM site to correspond to the anticipated dividing line between commercial and industrial zones.   On July 8, 2008, the Board approved the major subdivision application.

In November 2008, the Board's planning consultant, T & M Associates, prepared and delivered to the Board a Master Plan Reexamination Report (Report) and a separate Master Plan Land Use Element Amendment (Amendment), recommending reclassification of the land use for the GM site and creation of a new zoning district for the forty-five acres fronting Routes 1 and 9 called the “planned commercial district” to accommodate a mix of commercial and retail uses thereon.   Following notice published in the Home News Tribune, the Board convened a special meeting on November 25, 2008, after which the Report and Amendment were approved by resolution of December 9, 2008, and referred to City Council (Council).

To implement the zoning proposed in the Report and Amendment, on December 9, 2008, Council introduced and passed on first reading Ordinance 52–71, which planning consultant Richard Cramer of T & M Associates explained:

revise[s] the zoning of the GM site to permit the redevelopment of approximately 44 acres of the site for a mix of retail, commercial, and related uses based on an overall plan for development.   The area to be zoned for the planned commercial development extends approximately 1,000 feet from Route 1 & 9. In addition, a section of the GM site south of Pleasant Street will be zoned for age-restricted residential development.

The zoning of the remainder of the GM site will continue unchanged as part of the HI Heavy Industrial Zone.

Council then scheduled the proposed ordinance for a hearing at its December 30, 2008 meeting and referred it to the Board for review pursuant to N.J.S.A. 40:55D–64.   On December 16, 2008, the Board concluded that Ordinance 52–71 was consistent with the City's Master Plan, and proposed two minor technical changes.

On December 18, 2008, the City published notice of Ordinance 52–71 for public hearing and possible adoption in the local newspaper, the Union County LocalSource.  ․ The City also sent notice by certified mail to property owners within 200 feet of the property, including [Rockaway Shoprite]․

On December 30, 2008, Council heard comments from the public.  [Rockaway Shoprite] was represented at the hearing by Gordon Gemma, a New Jersey licensed professional planner and attorney, who voiced no objection to the ordinance.   Council unanimously passed Ordinance 52–71 without further amendment.

As noted, Ordinance 52–71 created two new zoning districts, the Planned Commercial Development (PCD) district and the Multi–Family Residential Development (R–4) district.   Principal permitted uses are retail sale of goods and services, restaurants, hotels, banks, finance offices, real estate offices, insurance offices, automobile showrooms and new car sales lots, professional and business offices, indoor recreation facilities, and health clubs.   Under area and bulk regulations for the PCD district, Ordinance 52–71 requires a tract size of a minimum of thirty contiguous acres, with a minimum street frontage of 1800 feet along Route 1 and 9. The Ordinance sets forth requirements for individual development, building height for each type of permitted use, façade treatment, landscaping and screening, parking and loading, signage, sidewalks, street furniture, lighting, and green design.

After its adoption, the City determined that certain limited revisions were necessary as to the PCD zone, and introduced a new Ordinance 53–10, to enact those revisions.1  A notice of public hearing was published once in the Union County LocalSource, on January 29, 2009.   The notice ․ did not identify the property affected by the proposed ordinance․  The mailed notice, sent to property owners within 200 feet of the property, however, did identify the property by block and lot number and as “the former General Motor[s] manufacturing facility.”   On February 17, 2009, Council considered Ordinance 53–10, which would amend Ordinance 52–71, and unanimously passed it.

[Rockaway Shoprite] filed a two-count complaint against the City and Council (hereafter “defendants” at times) seeking reversal of the adoption of the ordinances on both procedural and substantive grounds.   As to the former, plaintiff claimed improper notice.   As to the latter, plaintiff alleged that the PCD ordinance and district failed to comply with the governing PCD requirements in the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D–1 to –163.   Linden Development was allowed to intervene and answered, along with the City and Council.   Following discovery, plaintiff moved for summary judgment on its deficient public notice claim.   The Law Division denied the motion, concluding that the notice was sufficient under N.J.S.A. 40:49–2.1 and set the matter for trial on plaintiff's substantive claim.   At the close of evidence, the judge determined that the ordinances were valid as conventional zoning and dismissed plaintiff's complaint with prejudice.

[Rockaway Shoprite Assocs., Inc. v. City of Linden (Rockaway Shoprite I ), 424 N.J.Super. 337, 339–43 (App.Div.2011), certif. denied, 209 N.J. 233 (2012).]

Rockaway Shoprite appealed.   We reversed, finding that the notices provided were insufficient.  Id. at 355.   However, we also addressed plaintiff's substantive claim to provide future guidance.  Ibid.

[W]e need only briefly address ․ plaintiff's substantive challenge that Ordinance 52–71 is void because although attempting to create a “planned commercial development” (PCD) within the meaning of N.J.S.A. 40:55D–6, the ordinance fails to comply with the PCD requirements of the MLUL, N.J.S.A. 40:55D–45.   We disagree.   While admittedly the ordinance does not conform to the PCD requirements of the MLUL, it need not because the ordinance complies with the MLUL's conventional zoning, N.J.S.A. 40:55D–3, and is therefore valid in that respect.

First and foremost, a municipal ordinance enjoys a strong presumption of validity.  Zilinsky v. Zoning Bd. of Adjustment, 105 N.J. 363, 368 (1987);  Bow & Arrow Manor v. Town of West Orange, 63 N.J. 335, 343 (1973).   Second, the fact that the zoning ordinance uses the term “planned commercial development” does not automatically trigger the requirements for such a development under the MLUL. Clearly, a municipality may define the same term differently than in the MLUL, so long as that definition is within the intendment of the MLUL. Rumson Estates, Inc. v. Mayor of Fair Haven, 177 N.J. 338, 354 (2003).   In other words, the ordinance is valid if it otherwise conforms to the requirements of conventional zoning under the MLUL, N.J.S.A. 40:55D–3.

[Rockaway Shoprite] makes no credible claim that the ordinance does not comply with conventional zoning set forth in the MLUL. Nor does [it] cite to any element of Ordinance 52–71 that violates conventional zoning.   Instead, [Rockaway Shoprite] simply claims that certain features of Ordinance 52–71 are common to planned development, yet has failed to demonstrate they are exclusive to statutory PCD zoning, or conversely, are prohibited in conventional zoning.   Indeed, we are aware of no authority that bars conventional zoning plans from adopting requirements like those found in the City's zoning ordinance for its PCD zone.

N.J.S.A. 40:55D–6 defines a PCD zone as one “to be developed according to a plan as a single entity ․ with [ ] common areas․”  Ordinance 52–71 does not require common areas.   And although paragraph c(1) of the ordinance calls for development according to an overall master plan with uniform design standards, there is no further requirement that the property be developed as a single entity, by the same developer or at the same time.   On the contrary, nothing in the ordinance prevents each lot from being developed separately by different owners at different times so long as development be undertaken according to overall design standards.   The fact that Linden Development's draft plans detailed a unified planned development of mixed commercial and retail uses does not render it a statutory PCD in the absence of other features or elements of the definition in N.J.S.A. 40:55D–6.   Indeed, the expert proof adduced at the hearing in this matter related that a statutory PCD is designed for large scale, long-term projects that involve (1) variation of intensity across the district to create clustering, common open space, common areas;  and (2) general development plans for a single developer to build-out a project over many years while benefiting from the extended vesting that protects the developer's approvals over the long-term build-out.

We are satisfied that the preponderant credible expert proof objectively established that Ordinance 52–71 calls for conventional zoning and complies with the MLUL's requirements in that regard.   It was therefore unnecessary for the judge to have remanded the matter to the Board to ascertain its members' subjective intent in passing on the ordinance.   While admittedly such a procedure is unorthodox, in light of the objective evidence of conventional zoning, it does not require invalidation of Ordinance 52–71 on that ground alone.

[Id. at 355–57.]

The Supreme Court denied Rockaway Shoprite's petition for certification to review that aspect of our decision.  Rockaway Shoprite Assocs., Inc. v. City of Linden, 209 N.J. 233 (2012).

The City introduced Ordinance 55–58 on November 22, 2011, after our decision in Rockaway Shoprite I and before Rockaway Shoprite filed its petition for certification.   That ordinance was substantially identical to the invalidated ordinance.   However, the new ordinance contained a provision making it effective retroactively to February 17, 2009, “[t]o the extent permitted by law.”   The ordinance was adopted on December 20, 2011.   The retroactivity provision was intended to make the new ordinance effective as of the date on which the invalidated ordinance was enacted, in an apparent effort to preserve the validity of any planning approvals based on that ordinance.

Rockaway Shoprite filed this lawsuit on December 27, 2011.   The four-count complaint argued that the resolution granting Linden Development's preliminary major-site-plan approval was invalid (count one), that the ordinance's retroactivity provision was invalid (count two), that the ordinance did not comply with the MLUL requirements for planned commercial developments (count three), and that the public notices published and disseminated prior to the public hearing “were inadequate and misleading” (count four).   On February 21, 2012, Linden Development moved to dismiss the complaint for failure to state a claim.   The motion was joined by the City and the Board.

After oral argument on March 30, the trial judge dismissed counts three and four, holding that count three was barred by res judicata, on the basis of Rockaway Shoprite I, and, as to count four, that notice was sufficient because the City had published the entire ordinance.   The judge declined to dismiss counts one and two, finding that the ordinance could not take effect retroactively (count two) and that, as a consequence, the preliminary major-site-plan approval granted before the new ordinance was in effect was invalid (count one).   An implementing order was entered that day.

On April 11, Linden Development moved for entry of final judgment in favor of Rockaway Shoprite on counts one and two, arguing that the judge's March 30 ruling was completely dispositive of those claims.   Rockaway Shoprite opposed the entry of judgment in its favor, maintaining that it was entitled to further discovery to see if any additional permits, actions, work, or approvals had been pursued or entered under the invalidated provisions, and contending that it was seeking to invalidate the entire ordinance under count two, not just the retroactivity provision.   It also argued it was entitled to further investigation to determine if the City had complied with all MLUL procedures.

Following oral argument on May 22, the trial judge directed the parties to confer to see if they could resolve count one.   They subsequently agreed that any approvals granted by the Board prior to enactment of the new ordinance were invalid and that, if Linden Development wished to pursue the project, it would need to file new applications.

The terms of the settlement were read into the record on May 29.   The judge then entered an order dismissing count two, having determined that the issue of the ordinance's retroactivity, which had already been determined, was the only claim raised in that count.   This appeal followed.

II.

Rockaway Shoprite raises the following arguments on appeal:

POINT I

THE PLAINTIFF'S CLAIM AND COMPLAINT IN COUNTS II AND III—THAT THE PCD ZONING ADOPTED BY ORDINANCE 55–58 WAS SUBSTANTIVELY INVALID—WAS NOT BARRED OR PRECLUDED BY RES JUDICATA AND/OR COLLATERAL ESTOPPEL.

POINT II

THE DISMISSAL OF THE SUBSTANTIVE CHALLENGE TO THE VALIDITY OF ORDINANCE 55–58 AND THE PCD ZONING ON MOTION WAS PREMATURE.   ISSUES AS TO THAT PCD ZONING VALIDITY AND CONSISTENCY WITH THE MASTER PLAN WARRANTED AND REQUIRED DISCOVERY AND TRIAL.

POINT III

THERE WAS NO BASIS FOR A SUMMARY DISMISSAL OF THE COMPLAINT WITHOUT DISCOVERY BECAUSE ISSUES REMAINED AS TO WHETHER ORDINANCE 55–58 HAD BEEN PROPERLY ADOPTED AND WAS CONSISTENT WITH THE MASTER PLAN.

Having reviewed Rockaway Shoprite's arguments in light of the applicable law and the record on appeal, we find them to be without merit and not warranting extended discussion in a written opinion.   R. 2:11–3(e)(1)(E).   We add only the following.

Rockaway Shoprite's complaint raised four issues:  (1) the validity of the site plan approval that preceded passage of the new ordinance, (2) the retroactivity of the ordinance, (3) the substantive validity of the ordinance, and (4) the adequacy of the notice given prior to adoption of the ordinance.   It has prevailed on the first two issues, as a result of which Linden Development must seek new planning permission for its proposed project.   It does not appeal the motion judge's conclusion that the notice given prior to adoption of the ordinance was adequate.   That leaves the substantive validity of the ordinance.

Whether viewed from the perspective of issue preclusion or simply as binding precedent, our decision in Rockaway Shoprite I squarely addressed the issue of the substantive validity of an ordinance essentially identical to the one at issue in this case.   It did so on the basis of a full record, including a trial, and full briefing and argument by the parties.

The issue of the ordinance's validity was appropriately addressed at that time, despite our decision that the notice was deficient, because it would have served no useful purpose to have the defendants go to the trouble of re-enacting the ordinance with proper notice only to be told on their next visit to this court that the ordinance was substantively invalid.   The only flaw we found in the first ordinance was the inadequate notice that preceded its enactment.   That problem was not repeated in enacting the second ordinance.

The issue of substantive validity having already been litigated once in the trial court and resolved on appeal, there is no reason to address it again.   Rockaway Shoprite has not raised any new substantive issues that have not already been considered and resolved by our opinion in Rockaway Shoprite I. We find its efforts to convince us that there are additional issues warranting additional discovery to be unconvincing.   The only procedural issue raised in the trial court, the adequacy of notice, was resolved against Rockaway Shoprite, which has not challenged that decision on appeal.

Affirmed.

FOOTNOTES

FN1. Ordinance 53–10 made two changes to the zoning ordinance.   It deleted the subsection for tract size in the area and bulk regulations for the PCD district and replaced it with a new subsection clarifying contiguity, and added another new subsection setting a height restriction for buildings in the PCD district not to exceed forty-five feet..  FN1. Ordinance 53–10 made two changes to the zoning ordinance.   It deleted the subsection for tract size in the area and bulk regulations for the PCD district and replaced it with a new subsection clarifying contiguity, and added another new subsection setting a height restriction for buildings in the PCD district not to exceed forty-five feet.

PER CURIAM