1650 Corporate Road West, LLC v. the Township Committee of the Township of Lakewood
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Opinion
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4035-23
1650 CORPORATE ROAD WEST, LLC,
Plaintiff-Appellant,
v.
THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF LAKEWOOD and THE TOWNSHIP OF LAKEWOOD PLANNING BOARD,
Defendants-Respondents. ______________________________
Argued February 25, 2026 – Decided March 30, 2026
Before Judges Mayer, Paganelli, and Jacobs.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0203-23.
Robert C. Shea argued the cause for appellant (R.C. Shea & Associates, attorneys; Robert C. Shea, of counsel and on the briefs; Vincent J. DelRiccio, on the briefs). Robin La Bue argued the cause for respondent Township Committee of Township of Lakewood (Rothstein Mandell Strohm Halm & Cipriani, attorneys; Robin La Bue, on the brief).
Jilian McLeer argued the cause for respondent Township of Lakewood Planning Board (John J. Jackson III & Associates, Attorneys at Law, LLC, attorneys; John J. Jackson, III, of counsel and on the brief; Jilian McLeer, on the brief).
PER CURIAM
Plaintiff 1650 Corporate Road West, LLC appeals from an October 17,
2023 order granting partial summary judgment to defendant Township of
Lakewood Planning Board (Board). It also appeals from a November 17, 2023
order denying reconsideration of the October 17 order and denying its request
to extend discovery. Plaintiff also appeals from a January 19, 2024 order
granting partial summary judgment to defendant Township Committee of the
Township of Lakewood (Township Committee). Additionally, plaintiff appeals
from a July 9, 2024 final judgment, after a bench trial, dismissing all remaining
counts of its amended complaint. We affirm all orders on appeal.
This case arises from plaintiff's procedural and substantive challenges to
the Township Committee's adoption of Ordinance 2022-046 (Ordinance). The
Ordinance permits catering facilities and banquet halls as accessory uses to
A-4035-23 2 schools in non-residential zones, provided the facility or hall meets specific
parking requirements.
Plaintiff owns property in Lakewood Township's (Township) M-1
industrial zone. The M-1 industrial zone expressly allows for schools as
permitted uses. Upon learning of the Township Committee's proposal to adopt
the Ordinance, plaintiff attended various Township Committee and Board
meetings addressing the Ordinance. At the meetings, plaintiff, its counsel, and
its expert planner raised procedural and substantive challenges to the Ordinance.
As relevant to our decision, we recite the actions of the Township Committee
and Board regarding adoption of the Ordinance.
The Board's November 23, 2021 meeting minutes noted the approval of
the Board's calendar for 2022. Notice of the Board's 2022 meeting dates was
published in the Asbury Park Press on December 4, 2021 and in The Star-Ledger
on December 7, 2021. According to the published notices, the Board scheduled
meetings for November 15 and November 29, 2022. The Board's 2022 annual
reorganization meeting occurred on January 4, 2022.
The Township Committee held its 2022 annual reorganization meeting on
January 3, 2022. The notice of the Township Committee's meetings for 2022
was published in The Star-Ledger on January 5, 2022. The notice stated the
A-4035-23 3 Township Committee would hold meetings on October 20, 2022 and December
8, 2022. In a certification, the Township Committee's clerk confirmed she
caused the annual notice of the Township Committee's 2022 meetings "to be
posted in the municipal building as well as mailed to both The Star-Ledger and
the Asbury Park Press." The Township clerk also attested the annual notice with
the Township Committee's 2022 meeting dates was published in the Star Ledger
on January 5, 2022.
The Township Committee's agenda for its October 20, 2022 meeting
indicated the Ordinance would be considered for a first reading. The agenda
further stated "[a]dequate notice of this meeting has been provided in accordance
with the provisions of the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6,
and published in The Star-Ledger on January 5, 2022."
At a virtual meeting on October 20, 2022, the Township Committee
introduced the Ordinance. Members of the public were invited to participate in
the virtual meeting through a secure web conferencing service or telephone and
were allowed to email public comments to the Township Committee.
Additionally, the Township Committee livestreamed and recorded the meeting.
The Ordinance, as first introduced, provided:
18-906 I. Public and Private Schools.
A-4035-23 4 In all zones where schools are permitted uses, catering facilities and banquet halls shall be allowed as accessory uses in the school buildings, provided the following parking requirements are met:
Where the section of the school utilized for catering and banquet functions is 800 square feet to 1,999 square feet, 0.75 parking spaces shall be required for every 100 square feet of area utilized for catering and banquet uses, and if the section of the school utilized for catering and banquet functions is 2,000 square feet o[r] greater, then 1.0 parking spaces shall be required for every 100 square feet.
The minutes from the Township Committee's October 20, 2022 meeting
reflected some members of the public offered comments at the virtual
proceeding while others emailed comments. Generally, the comments
questioned the sufficiency of the parking requirements set forth in the
Ordinance. Plaintiff's attorney attended the meeting and stated he had submitted
a letter on plaintiff's behalf opposing the Ordinance.
The October 20, 2022 letter from plaintiff's attorney identified several
objections to the Ordinance. The letter stated the Ordinance "would create
havoc" for plaintiff's property and other properties located in the M-1 industrial
zone because "[t]he area [wa]s already plagued by heavy traffic congestion and
rampant unapproved street parking from the banquet halls already in existence ."
According to the letter, "[t]he addition of catering facilities and banquet halls as
A-4035-23 5 a permitted accessory use w[ould] exacerbate the existing difficulties
exponentially."
Following receipt of comments from the public, including plaintiff, the
Township Committee referred the Ordinance to the Board for its review and
recommendations. The Township Committee stated it would hold another
public hearing on the Ordinance after the Board's review.
In an October 26, 2022 notice published in The Star-Ledger, the Township
Committee confirmed the Ordinance had been introduced and would be further
considered for final passage at the Township Committee's December 8, 2022
meeting. Members of the public were invited to attend the December 8, 2022
meeting in person, through a secure web conferencing service, or by telephone.
The notice stated the identification number for the secure web conferencing
service would be posted on the Township's website and the meeting would be
livestreamed.
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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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4035-23
1650 CORPORATE ROAD WEST, LLC,
Plaintiff-Appellant,
v.
THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF LAKEWOOD and THE TOWNSHIP OF LAKEWOOD PLANNING BOARD,
Defendants-Respondents. ______________________________
Argued February 25, 2026 – Decided March 30, 2026
Before Judges Mayer, Paganelli, and Jacobs.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0203-23.
Robert C. Shea argued the cause for appellant (R.C. Shea & Associates, attorneys; Robert C. Shea, of counsel and on the briefs; Vincent J. DelRiccio, on the briefs). Robin La Bue argued the cause for respondent Township Committee of Township of Lakewood (Rothstein Mandell Strohm Halm & Cipriani, attorneys; Robin La Bue, on the brief).
Jilian McLeer argued the cause for respondent Township of Lakewood Planning Board (John J. Jackson III & Associates, Attorneys at Law, LLC, attorneys; John J. Jackson, III, of counsel and on the brief; Jilian McLeer, on the brief).
PER CURIAM
Plaintiff 1650 Corporate Road West, LLC appeals from an October 17,
2023 order granting partial summary judgment to defendant Township of
Lakewood Planning Board (Board). It also appeals from a November 17, 2023
order denying reconsideration of the October 17 order and denying its request
to extend discovery. Plaintiff also appeals from a January 19, 2024 order
granting partial summary judgment to defendant Township Committee of the
Township of Lakewood (Township Committee). Additionally, plaintiff appeals
from a July 9, 2024 final judgment, after a bench trial, dismissing all remaining
counts of its amended complaint. We affirm all orders on appeal.
This case arises from plaintiff's procedural and substantive challenges to
the Township Committee's adoption of Ordinance 2022-046 (Ordinance). The
Ordinance permits catering facilities and banquet halls as accessory uses to
A-4035-23 2 schools in non-residential zones, provided the facility or hall meets specific
parking requirements.
Plaintiff owns property in Lakewood Township's (Township) M-1
industrial zone. The M-1 industrial zone expressly allows for schools as
permitted uses. Upon learning of the Township Committee's proposal to adopt
the Ordinance, plaintiff attended various Township Committee and Board
meetings addressing the Ordinance. At the meetings, plaintiff, its counsel, and
its expert planner raised procedural and substantive challenges to the Ordinance.
As relevant to our decision, we recite the actions of the Township Committee
and Board regarding adoption of the Ordinance.
The Board's November 23, 2021 meeting minutes noted the approval of
the Board's calendar for 2022. Notice of the Board's 2022 meeting dates was
published in the Asbury Park Press on December 4, 2021 and in The Star-Ledger
on December 7, 2021. According to the published notices, the Board scheduled
meetings for November 15 and November 29, 2022. The Board's 2022 annual
reorganization meeting occurred on January 4, 2022.
The Township Committee held its 2022 annual reorganization meeting on
January 3, 2022. The notice of the Township Committee's meetings for 2022
was published in The Star-Ledger on January 5, 2022. The notice stated the
A-4035-23 3 Township Committee would hold meetings on October 20, 2022 and December
8, 2022. In a certification, the Township Committee's clerk confirmed she
caused the annual notice of the Township Committee's 2022 meetings "to be
posted in the municipal building as well as mailed to both The Star-Ledger and
the Asbury Park Press." The Township clerk also attested the annual notice with
the Township Committee's 2022 meeting dates was published in the Star Ledger
on January 5, 2022.
The Township Committee's agenda for its October 20, 2022 meeting
indicated the Ordinance would be considered for a first reading. The agenda
further stated "[a]dequate notice of this meeting has been provided in accordance
with the provisions of the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6,
and published in The Star-Ledger on January 5, 2022."
At a virtual meeting on October 20, 2022, the Township Committee
introduced the Ordinance. Members of the public were invited to participate in
the virtual meeting through a secure web conferencing service or telephone and
were allowed to email public comments to the Township Committee.
Additionally, the Township Committee livestreamed and recorded the meeting.
The Ordinance, as first introduced, provided:
18-906 I. Public and Private Schools.
A-4035-23 4 In all zones where schools are permitted uses, catering facilities and banquet halls shall be allowed as accessory uses in the school buildings, provided the following parking requirements are met:
Where the section of the school utilized for catering and banquet functions is 800 square feet to 1,999 square feet, 0.75 parking spaces shall be required for every 100 square feet of area utilized for catering and banquet uses, and if the section of the school utilized for catering and banquet functions is 2,000 square feet o[r] greater, then 1.0 parking spaces shall be required for every 100 square feet.
The minutes from the Township Committee's October 20, 2022 meeting
reflected some members of the public offered comments at the virtual
proceeding while others emailed comments. Generally, the comments
questioned the sufficiency of the parking requirements set forth in the
Ordinance. Plaintiff's attorney attended the meeting and stated he had submitted
a letter on plaintiff's behalf opposing the Ordinance.
The October 20, 2022 letter from plaintiff's attorney identified several
objections to the Ordinance. The letter stated the Ordinance "would create
havoc" for plaintiff's property and other properties located in the M-1 industrial
zone because "[t]he area [wa]s already plagued by heavy traffic congestion and
rampant unapproved street parking from the banquet halls already in existence ."
According to the letter, "[t]he addition of catering facilities and banquet halls as
A-4035-23 5 a permitted accessory use w[ould] exacerbate the existing difficulties
exponentially."
Following receipt of comments from the public, including plaintiff, the
Township Committee referred the Ordinance to the Board for its review and
recommendations. The Township Committee stated it would hold another
public hearing on the Ordinance after the Board's review.
In an October 26, 2022 notice published in The Star-Ledger, the Township
Committee confirmed the Ordinance had been introduced and would be further
considered for final passage at the Township Committee's December 8, 2022
meeting. Members of the public were invited to attend the December 8, 2022
meeting in person, through a secure web conferencing service, or by telephone.
The notice stated the identification number for the secure web conferencing
service would be posted on the Township's website and the meeting would be
livestreamed. The notice further stated members of the public could email
comments prior to or during the meeting.
On November 15, 2022, plaintiff's attorney sent another letter to the
Township advising the secure web conferencing service for the October 20, 2022
meeting did not allow him to participate. Plaintiff's counsel "request[ed] that
[the Township Committee] ensure that any defect with the [web conferencing
A-4035-23 6 service] is corrected" for the Township Committee's December 8, 2022 meeting.
Plaintiff's attorney also asked the Township Committee to provide him with the
link to the secure web conferencing service page, the correct meeting
identification number, and the correct passcode for the December 8 meeting.
The Board held a consistency review on the Ordinance at its November
15, 2022 meeting. The agenda for this meeting indicated "[t]he time, date and
location of th[e] meeting was published in the Asbury Park Press and The Star-
Ledger and posted on the bulletin board in the office of the Township . . . at least
[forty-eight] hours in advance." The agenda also noted an "ordinance for
review" would be considered by the Board on November 15.
At the start of the meeting, the Board's attorney advised the Board it was
tasked with determining if the Ordinance was "consistent or inconsistent with
the objectives of the [Township's m]aster [p]lan." The Board's attorney stated
that if the Board failed to respond to the Township Committee's review request,
then the Township Committee could "go forward without any input from the . . .
Board." He also indicated the Board's decision was "not binding upon the
governing body."
Addressing the specifics of the Ordinance, the Board's attorney explained
"[i]t's very common in Lakewood for there to be a school and to use a portion
A-4035-23 7 of the school . . . as a . . . catering hall." The Board's attorney further noted the
"Board ha[d] frequently in the past made a determination that a banquet hall
[wa]s . . . an accessory use to a school." He also stated, "a catering hall [wa]s . . .
a very important adjunct or accessory to a school because it [c]ould host
weddings and different types of events that [we]re associated with religious and
private schools."
At the Board's November 15, 2022 meeting, plaintiff's attorney stated
plaintiff had "significant issues" with the Ordinance. Plaintiff's counsel
explained plaintiff "fear[ed]" allowing banquet halls as a permitted accessory
use to schools "may take away a significant amount of buildings in the area."
Plaintiff retained a professional planner who testified at the Board's
November 15, 2022 meeting. Plaintiff's planner explained adopting the
Ordinance as introduced would allow banquet facilities "essentially[] every[]
place but [three] percent of the land in Lakewood." He further testified
permitting banquet halls in residential areas could be problematic due to setback
requirements and because "[n]ot many schools . . . go on until all hours of the
night and have festivities and catering" while "[m]ost banquet facilities do." In
reviewing the Ordinance, plaintiff's planner explained the Board should consider
"things like adequate lot area, how big [wa]s it, what [we]re [its] setbacks, what
A-4035-23 8 [we]re [its] buffers" and "not just parking." The planner opined the Ordinance
was not consistent with the Township's master plan.
After considering the comments at the November 15 meeting, the Board's
chairman formed an ad hoc committee to review the Ordinance. The ad hoc
committee planned to meet with the Board's professional planner and offer a
recommendation to the Board regarding the consistency of the Ordinance with
the Township's master plan.
On November 22, 2022, plaintiff's counsel sent a letter to the Board's
attorney and the Board's administrator with a report from plaintiff's planner
explaining why the Ordinance was inconsistent with the Township's master plan.
According to the report, "the specific language of the land use element [of the
master plan wa]s clear" that "[a]n overriding goal and objective [wa]s to
minimize conflicts while protecting residential neighborhoods" but "there [wa]s
no goal or objective which could reasonably be used to justify allowing banquet
facilities in residential zones." The report also noted the Township's master plan
indicated "[t]here ha[d] been an ongoing issue of encroachment of incompatible
uses in the Lakewood [i]dustrial [p]ark" and the "[d]evelopment of certain non-
industrial uses that generate a high volume of traffic should be discouraged ."
Plaintiff's planner opined that "[b]anquet facilities [we]re just those types of uses
A-4035-23 9 which generate high volumes of traffic that the [m]aster [p]lan specifically
indicated [we]re incompatible." His report concluded "the proposed Ordinance
[wa]s not consistent with any element of the . . . Township [m]aster [p]lan."
On November 23, 2022, the Board's administrator sent a memorandum
regarding the Ordinance to the Board's engineer, the Board's planner, the Board's
attorney, and the Board's chairman. The memorandum stated: "Historically, the
Board has considered banquet facilities to be . . . accessory uses to schools,
synagogues, and hotels, and has approved various applications as such ." The
memorandum provided excerpts from the Township's 2017 master plan "for the
Board's consideration in determining consistency with the proposed Ordinance."
The memorandum also included the master plan's land use element addressing
traffic and parking, stating "[t]raffic congestion and a shortage of parking have
been ongoing problems in Lakewood" and these issues could be addressed "in
part, with sound land use planning that promotes reduced reliance on private
vehicles through: compact development footprints, facilitated access to public
transit; provision of local services within walking distance of residential areas;
and, provision of adequate parking for existing and future land uses ."
A-4035-23 10 The Board continued its consistency review at the November 29, 2022
meeting. The meeting agenda issued in advance of November 29 stated the
Board would consider an "ordinance for review."
At the November 29 meeting, the Board's administrator explained she met
with the Board's planner and the ad hoc committee to "discuss what the
[O]rdinance [wa]s proposing and what the Board's concerns might include." The
Board's chairman stated the ad hoc committee discussed whether the Ordinance
"should . . . only be in nonresidential zones" and "how much parking . . . [wa]s
necessary." The Board's chairman also explained "the industrial park[,] . . . was
built for [the] greater goals of the Township" and he noted that schools are now
located in the industrial park.
After hearing public comments, the Board concluded the Ordinance
"[wa]s consistent with the [m]aster [p]lan" but "urge[d]" the Township to revise
the parking requirements to include "one space to 45 square feet" and to provide
"[a]ll assembly areas . . . be included in the ratio" and "[n]o on street parking
within 100 feet." The Board also suggested "the [Township] should
alternatively consider basing the parking count on gross square footage" of any
catering facility or banquet hall in the zone.
A-4035-23 11 On December 1, 2022, the Board's attorney emailed the Township's
attorney with the Board's consistency findings regarding the Ordinance. The
email explained the "Board believe[d] that it [wa]s salutary that the [Township]
Committee [wa]s codifying that banquet halls [we]re an accessory use to schools
in Lakewood" and the "Board has, for many years, viewed banquet halls as an
accessory to schools." The email further stated "[t]he Board want[ed] to
emphasize that an amendment to the zoning ordinance imposing conditions and
standards associated with the accessory use of banquet halls must not disturb
existing schools with banquet halls and that their use must be permitted to
continue to be lawful as 'grandfathered.'"
The Board attorney's email also noted the Board's "most significant issue
with accessory banquet uses [wa]s parking." He explained the Board "discussed
possible different alternatives to define the parking criteria from which parking
ratios could be calculated," including "a ratio that would be based upon the gross
square footage of the building, a net square footage of the building, seating
counts, occupancy counts, [and] the net area of the banquet hall itself, etc." The
email further stated "[t]he Board was concerned with banquet halls being present
in strictly residential zones and recommend[ed] that the [Township C]ommittee
adopt criteria and specific overlay areas that would allow and exclude banquet
A-4035-23 12 halls in specifically identified neighborhoods." The email expressed the Board's
belief that the "[O]rdinance [wa]s consistent with the master plan because it
beg[a]n to regulate a common accessory use that currently has no tailored
associated standards to guide the . . . Board."
The Township's attorney asked if the email from the Board's attorney
constituted the Board's consistency review report or if a more formal report
would be submitted. The Township['s a]ttorney was informed the email
"constitute[d] the . . . [B]oard's report regarding the proposed Ordinance."
On December 7, 2022, plaintiff's attorney emailed the Board's
administrator requesting "any resolution, report, or other documents containing
the findings and recommendations of the . . . Board relative to [the] proposed
Ordinance[']s . . . consistency with the [m]aster [p]lan." The Board's
administrator responded the Board's attorney "communicated directly with the
Township attorney" in an email and plaintiff could obtain a copy of that email
through the Open Public Records Act, N.J.S.A. 47:1A-1 to -13, request. The
administrator confirmed the Board did not adopt a resolution and explained she
"d[id]n't believe the Board ha[d] adopted a resolution for an Ordinance review
before, [or] at least not in the last [ten] years."
A-4035-23 13 The same day, the Township Committee posted an agenda on the
Township's website for its December 8, 2022 meeting. The agenda included an
amended version of the Ordinance. The Ordinance, as amended, stated:
In all non-residential zones where schools are permitted uses (Section 18-903) and the Oak Street Core Neighborhood Overlay Zone-1 (Section 18-902M), catering facilities and banquet halls shall continue to be allowed as accessory uses in the school buildings, provided the following parking requirements are met:
For the section of the school utilized for catering and banquet functions (to be known as the [b]anquet [h]all space, but not including bathrooms, food prep rooms, and facilities not associated with the [b]anquet [h]all function, such as guest preparation rooms, etc.) 1.0 parking space shall be required for every 50 square feet thereof.
The day before the December 8 meeting, plaintiff's attorney submitted
another letter objecting to the revised Ordinance. Plaintiff lodged various
procedural objections, including that the Township Committee could not hold
virtual meetings and a member of the Township Committee had a conflict of
interest due to the member's children attending a private school that "operate[d]
a popular banquet facility" and because the mother of the same member held "a
significant position within the administration at [a] . . . girls' school . . . which
has the oldest banquet hall in town." The letter repeated plaintiff's argument
A-4035-23 14 that the Ordinance was inconsistent with the Township's master plan and raised
additional objections, including that the Ordinance failed to define catering
facility or banquet hall and lacked any bulk requirements.
The Township Committee considered the Ordinance, as amended, for final
passage at its December 8, 2022 meeting. At the start of the meeting, the
Township's mayor stated:
Ordinance . . . is on for second reading after referral to the . . . Board pursuant to N.J.S.A. 40:55D- 64 and N.J.S.A. 40:55D-26. The [Township] Committee has received recommendations from the Board to make revisions to the original language which we do not deem to be substantive changes upon the advice of our attorneys. Thus, we have revised the [O]rdinance to include the pertinent suggestions.
Those suggestions specifically related to this [O]rdinance are to recognize banquet halls as an accessory use in only nonresidential zones, Section 18- 903 of the U[niform] D[evelopment] O[rdinance], and residential zones which an overlay for schools, which is the Oak Street Core Neighborhood Overlay Zone . . . Section 18-902M. The revised [O]rdinance now contains these revisions.
The other suggestion was to revise the parking requirement from the originally proposed ordinance. Various suggestions were proffered by the Board, but the most prevalent recommendation appears to be the following: Parking ratio presently provided for at facilities already being used for banquet halls in town. That is one space for every [fifty] square f[ee]t of banquet hall space, not including bathrooms, food prep
A-4035-23 15 rooms, and facilities not associated with the banquet hall function. This is now detailed in the revisions to the proposed [O]rdinance.
Unlike the parking requirements for places of worship and religious facilities and catering facilities, Section 18-905, this parking requirement includes using principal use parking space requirements. This means that the school parking spaces shall be included in counting the requirements for the banquet halls. This is because while some of the other facilities may actually have concurrent things going on, there will not be a banquet hall facility going on at the same time that school is being held, that way those spots will be available.
....
Our attorneys have advised us that the requirement expressed in N.J.S.A. 40:55D-26 that the . . . Board render a report including identification of any provisions in the proposed [O]rdinance amendment which are inconsistent with the [m]aster [p]lan and recommend any revisions to the amendment has been fulfilled specifically by the Board's finding that this [O]rdinance amendment is consistent with the master plan, thus the [Township] Committee has revised the [O]rdinance accordingly incorporating the pertinent recommendations.
Upon opening the December 8 meeting for public comment, the mayor
explained there would be a four-minute time limit on comments. As part of his
four-minutes, plaintiff's attorney raised objections to the Ordinance consistent
with the objections noted in his December 7, 2022 letter to the Township
A-4035-23 16 Committee. Plaintiff's planner also raised objections, arguing the amended
Ordinance was inconsistent with the Township's master plan. Plaintiff's planner
further cited "substantial change[s]" between the original and amended
Ordinance because "the ratio of parking is different" and the amended Ordinance
"contains a retroactive provision indicating that schools shall continue to be
allowed to have catering and banquet facilities."
After considering the public comments, the Township Committee adopted
the amended Ordinance. On December 14, 2022, The Star-Ledger published a
notice advising the Ordinance was "passed and adopted" at the Township
Committee's December 8 meeting.
On January 25, 2023, plaintiff filed a fifteen-count complaint in lieu of
prerogative writs and an order to show cause (OTSC) asserting procedural and
substantive challenges to the Ordinance. After the judge denied plaintiff's
OTSC, the Board filed an answer.
Plaintiff subsequently moved to amend the complaint, which the judge
granted. In its amended complaint, plaintiff alleged: the Township Committee's
virtual meetings were impermissible under the OPMA (count one); a member of
the Township Committee was prohibited from voting on the Ordinance and,
therefore, the Township Committee lacked the majority necessary to vote on
A-4035-23 17 final passage of the Ordinance (counts two and three); the public notice for the
Township Committee's December 8, 2022 meeting was deficient due to
substantial changes to the Ordinance (count four); the Township Committee
violated the County Planning Board notice provisions, N.J.S.A. 40:55D-15(b)
and -16 (count five); the Township Committee failed to provide notice to
plaintiff of the amended Ordinance in violation of N.J.S.A. 40:55D-62.1 (count
six); the four-minute speaking time limit at the Township Committee's
December 8, 2022 meeting was arbitrary, capricious, and unreasonable (count
seven); the Board failed to give the public adequate notice of the November 15
and November 29, 2022 meetings under the OPMA (count eight); the Board
failed to conduct a master plan consistency review of the Ordinance under
N.J.S.A. 40:55D-26 (count nine); the email provided by the Board's attorney did
not constitute a planning board report under N.J.S.A. 40:55D-26 and, even if it
did, the Township Committee violated N.J.S.A. 40:55D-62 and -26 by failing to
address the inconsistency between the Ordinance and the master plan (counts
ten(a) and ten(b)); the Board's reliance on a report from the Board's
administrator rendered the Board's determination arbitrary, capricious, and
unreasonable (count eleven); the Township's attorney tainted the record at the
Township Committee's December 8, 2022 meeting (count twelve); the Township
A-4035-23 18 Committee did not review a report from the Board as required under N.J.S.A.
40:55D-26 (count thirteen); the amended Ordinance was inconsistent with the
Township's master plan (count fourteen); the amended Ordinance created a
conditional use ordinance in violation of N.J.S.A. 40:55D-67 (count fifteen); the
Board failed to reorganize properly for the 2022 year under N.J.S.A. 10:4-18
and, therefore, lacked authority to conduct its November 15 and November 29,
2022 meetings (count sixteen); and the Township Committee also violated
N.J.S.A. 10:4-8 and -18, rendering its October 20, 2022 and December 8, 2022
meetings ultra vires (count seventeen). The amended complaint added new
claims only as to the Township Committee. The Township Committee answered
the amended complaint.
On August 18, 2023, plaintiff moved for summary judgment on counts
one, four, five, six, eight, sixteen, and seventeen of the amended complaint . A
month later, the Township Committee cross-moved for summary judgment on
counts one, four, five, six, and seventeen of the amended complaint. The Board
opposed plaintiff's motion for summary judgment and cross-moved for summary
judgment on count sixteen of the amended complaint.
In an October 17, 2023 order with an attached written decision, the judge
granted partial summary judgment to the Board on counts eight and sixteen of
A-4035-23 19 the amended complaint, dismissing those counts with prejudice. Additionally,
the judge granted partial summary judgment to the Township Committee on
counts one, four, five, and six of the amended complaint, dismissing those
counts with prejudice. The judge denied plaintiff's motion for summary
judgment.
Plaintiff moved for reconsideration of the October 17, 2023 order granting
partial summary judgment to the Township Committee and moved to expand the
record to allow further discovery. The judge denied plaintiff's motion in its
entirety.
On November 16, 2023, the Township Committee moved for summary
judgment on count seventeen of the amended complaint. After considering the
parties' arguments and written submissions the judge granted summary judgment
on January 19, 2024, and dismissed count seventeen with prejudice.
The judge conducted a bench trial on the remaining counts of the amended
complaint based solely on the documentary record. In a July 9, 2024 final
judgment and accompanying written statement of reasons, the judge dismissed
plaintiff's amended complaint in its entirety with prejudice.
On appeal, plaintiff raises a litany of arguments. Plaintiff contends: the
Board and Township Committee violated N.J.S.A. 10:4-18 in reorganizing for
A-4035-23 20 the 2022 year and, therefore, its proceedings related to the consistency review
and adoption of the Ordinance were ultra vires; the notice provisions related to
adoption of the Ordinance failed to comply with the Municipal Land Use Law
(MLUL), N.J.S.A. 40:55D-1 to -171; the adoption of the Ordinance failed to
comply with the requirements of the OPMA; the judge erred in denying its
motion for reconsideration of the October 17, 2023 order and motion to extend
discovery; the Ordinance was inconsistent with the Township's master plan; the
adoption of the Ordinance was arbitrary, capricious, and unreasonable; and a
member of the Township Committee had a disqualifying conflict of interest
rendering adoption of the Ordinance invalid. We reject these arguments.
We begin with plaintiff's arguments regarding the summary judgment
dismissal of various counts in its amended complaint against the Township
Committee and the Board.
In count sixteen, plaintiff alleged the Board violated the notice provisions
of N.J.S.A. 10:4-18 during its 2022 reorganization. The judge disagreed, finding
the Board "voted on [its] 2022 calendar at the November 23, 2021, public
meeting" and "[t]he annual notice generated from that meeting was published in
two newspapers on December 4 and December 7 of 2021."
A-4035-23 21 The judge found that "to the extent plaintiff[] challenge[d] the Board's
failure to properly reorganize for the 2022 term pursuant to N.J.S.A. 10:4 -18
because it was the product of violations of the OPMA, [its] complaint was
untimely." Citing Edison Board of Education v. Zoning Board of Adjustment
of Edison, 464 N.J. Super. 298, 308 (App. Div. 2020), the judge explained a
"complaint alleging an OPMA violation must be filed within forty-five days
'after the action sought to be voided has been made public[.]'" (quoting N.J.S.A.
10:4-15(a)).
Despite plaintiff's assertion that it only became aware of the alleged
OPMA violation on March 29, 2023, and immediately sought to amend its
complaint, the judge found the claim fell "well outside the [forty-five] day time
limit." The judge further found "there was sufficient public notice for . . .
plaintiff[] to be aware of and then challenge the Board's alleged failure to
comply with OPMA in a timely fashion" because "[p]laintiff was surely aware
of the meetings in November and constructively aware of the lack of notices
within seven days of the January 4, 2022, re-organization hearing and the
Board's failure to re-adopt the 2022 calendar." Because "[t]he filing of count
sixteen [wa]s beyond [forty-five] days of the Board's review and
A-4035-23 22 recommendations as to the Ordinance" the judge dismissed that count with
prejudice.
In count eight, plaintiff alleged the Board failed to provide adequate notice
in its agendas for the November 15 and November 29, 2022 meetings because
the agendas simply stated "ordinance for review." The judge determined "the
notice was sufficient" because it "provided notice that official action would be
taken as to the review of an ordinance." The judge explained that "even if the
Board's actions did not comply strictly with the statute, it was not voidable due
to the protections provided in N.J.S.A. 10:4-15(a)." The judge concluded the
Ordinance "was published and available before the [Township] Committee
readings when it was referred to the Board" and "[t]here [wa]s no indication
anyone was unaware of the actions." Therefore, the judge dismissed count eight
of plaintiff's amended complaint with prejudice.
In count four, plaintiff alleged the Township Committee's public notices
for the second reading of the Ordinance were deficient due to substantial
changes to the Ordinance as amended. In rejecting this argument, the judge
found "the amendment was neither substantive[] nor was plaintiff aggrieved by
the change" because the amended Ordinance "reduced the number of zones to
which the Ordinance was applicable" and "continued the determination that the
A-4035-23 23 catering facilities and banquet halls shall continue to be allowed as accessory
uses provided the parking requirements are met."
The judge also rejected plaintiff's argument that "the impact of the
amendment in effect, ma[d]e[]" banquet halls as accessory uses to schools in
non-residential zones "retroactive by recognizing that they are currently seen as
accessory which shall continue" because "[t]he discussion by the . . . Board in
reviewing the Ordinance referred to the use being historically viewed by them
as an accessory use." Because "schools [we]re permitted uses in the M-1 Zone,"
the judge concluded the amended Ordinance "clarifying and permitting banquet
facilities as an accessory to schools does not have a 'substantive effect' on the
plaintiff." Thus, the judge dismissed count four of the amended complaint with
In count five, plaintiff alleged the Township Committee violated the
County Planning Board notice provisions, N.J.S.A. 40:55-15(b). Because the
judge "found that no substantive changes were made in amending the
Ordinance," he concluded "no further notice was required." Thus, the judge
dismissed count five with prejudice.
In count six, plaintiff alleged the Township Committee failed to provide
personal notice to plaintiff of the amended ordinance, as required by N.J.S.A.
A-4035-23 24 40:55D-62.1, arguing the amended Ordinance constituted a zoning classification
change. In rejecting this argument, the judge concluded the Ordinance did not
"fundamentally alter[]" the M-1 industrial zone. The judge noted the Board
"recognized that it ha[d] historically found banquet facilities to be an accessory
use to a school, as a simcha hall." Because "schools [we]re permitted uses in
the M-1 Zone," the judge held that "clarifying and permitting banquet facilities
as an accessory to schools d[id] not have a 'substantive effect' on the zone and
therefore, d[id] not change the classification nor require personal notice."
Therefore, the judge dismissed count six of the amended complaint with
In count one, plaintiff alleged the Township Committee lacked authority
under the OPMA to hold virtual meetings. Citing N.J.S.A. 10:4-8(b), the judge
found the plain language of the OPMA defined meetings as "any gathering
'whether corporeal or by means of communication equipment.'" The judge
concluded, "[w]here the OPMA definition of meeting includes appearance by
'communication equipment' the Board was simply complying with the law and
employing technology." Thus, the judge dismissed count one of the amended
complaint with prejudice.
A-4035-23 25 However, the judge denied, without prejudice, summary judgment as to
count seventeen. In count seventeen, plaintiff alleged the Township Committee
violated the notice provisions of N.J.S.A. 10:4-8 and -18 by only publishing its
annual notice for its 2022 meetings in The Star-Ledger instead of two papers
and failing to notice the October 20, 2022 or the December 8, 2022 meetings as
special meetings. The judge concluded there were "issues of material fact that
prevent[ed] the [c]ourt from deciding the issue." The judge explained that
"[m]ore evidence [wa]s required for the [c]ourt to determine this issue."
On November 16, 2023, the Township Committee moved for summary
judgment on count seventeen of plaintiff's amended complaint. In granting
summary judgment on this count, the judge found "the requirement to file a
prerogative writ[s] must comply with the rules of the prerogative writ[s]1 and
the rules of the [OPMA which] establish[ed] a [forty-five]-day period from the
event being challenged." As the judge explained, "[a]ny challenge to a
deficiency in the publication of an annual notice was required to have been made
and to have been filed [forty-five] days from January 10th, 2022 or by February
24th, 2022." Plaintiff's filed its amended complaint challenging the published
notice in March 2023. Thus, the judge held this claim was time barred.
1 Rule 4:69-6(b) governs actions in lieu of prerogative writs. A-4035-23 26 Additionally, the judge concluded plaintiff failed to demonstrate any interest of
justice for a relaxation of the forty-five-day requirement under Rule 4:69-6(c)
and dismissed count seventeen of the amended complaint with prejudice.
We review orders granting summary judgment de novo, applying the same
standard as the motion judge. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). Under
that standard, we must "determine whether 'the pleadings, depositions, answers
to interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact challenged and that
the moving party is entitled to a judgment or order as a matter of law.'" Branch
v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-2(c)). "To
decide whether a genuine issue of material fact exists, the trial court must 'draw[]
all legitimate inferences from the facts in favor of the non-moving party.'"
Friedman v. Martinez, 242 N.J. 449, 472 (2020) (alteration in original) (quoting
Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). "An issue of fact is
genuine only if . . . the evidence submitted by the parties on the motion, together
with all legitimate inferences therefrom favoring the non-moving party, would
require submission of the issue to the trier of fact." R. 4:46-2(c). "To the extent
that the grant or denial of summary judgment is based on an issue of law,
[appellate courts] owe no deference to an interpretation of law that flows from
A-4035-23 27 established facts." State v. Perini Corp., 221 N.J. 412, 425 (2015) (citing Town
of Kearny v. Brandt, 214 N.J. 76, 92 (2013)).
Similarly, our review of a trial court's interpretation of a statute, such as
the OPMA, is de novo. McGovern v. Rutgers, 211 N.J. 94, 108 (2012). "[W]e
do not owe any deference to the interpretations placed on the various provisions
of OPMA by . . . the trial court." Ibid. Rather, our role regarding statutory
interpretation "is to determine and effectuate the Legislature's intent." Ibid.
(quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009)). "If the
language is clear, our task is to apply that language to the situation that confronts
us." Ibid. (citing State v. Shelley, 205 N.J. 320, 323 (2011)).
Plaintiff contends the judge erred in granting summary judgment as to
counts one, four, five, six, eight, sixteen, and seventeen of the amended
complaint. We address the summary judgment dismissal of each of these counts.
In count sixteen, plaintiff claims the Board's 2022 reorganization violated
N.J.S.A. 10:4-18. As a result, plaintiff contends the Board lacked authority to
hold its November 15 and November 29, 2022 meetings.
The OPMA provides:
At least once each year, within [seven] days following the annual organization or reorganization meeting of a public body, or if there be no such organization or reorganization meeting in the year, then by not later
A-4035-23 28 than January 10 of such year, every public body shall post and maintain posted throughout the year in the place described in [N.J.S.A. 10:4-8(d)(1)], mail to the newspapers described in [N.J.S.A. 10:4-8(d)(2)], submit to the persons described in [N.J.S.A. 10:4- 8(d)(3)], for the purpose of public inspection a schedule of the regular meetings of the public body to be held during the succeeding year. Such schedule shall contain the location of each meeting to the extent it is known, and the time and date of each meeting. In the event that such schedule is thereafter revised, the public body, within [seven] days following such revision, shall post, mail and submit such revision in the manner described above.
[N.J.S.A. 10:4-18.]
Under the OPMA, "[a]ny action taken by a public body at a meeting which
does not conform with the provisions of this act shall be voidable in a proceeding
in lieu of prerogative writ[s] . . . , which proceeding may be brought by any
person within [forty-five] days after the action sought to be voided has been
made public." N.J.S.A. 10:4-15(a); see also Mason v. City of Hoboken, 196 N.J.
51, 69 (2008) (noting "actions taken at a meeting in violation of the [OPMA]
are to be challenged within [forty-five] days in a proceeding in lieu of
prerogative writs." (citing N.J.S.A. 10:4-15(a))).
Under Rule 4:69-6(a), "[n]o action in lieu of prerogative writs shall be
commenced later than [forty-five] days after the accrual of the right to review,
hearing or relief claimed, except as provided by paragraph (b) of this rule." Rule
A-4035-23 29 4:69-6(b)(3) provides "[n]o action in lieu of prerogative writs shall be
commenced . . . to review a determination of a planning board . . . after [forty-
five] days from the publication of a notice once in the official newspaper of the
municipality or a newspaper of general circulation in the municipality." A court
may enlarge the forty-five-day period "where it is manifest that the interest of
justice so requires." R. 4:69-6(c). There are three recognized exceptions
allowing for enlargement of the time period under Rule 4:69-6(a) based on the
interest of justice. The exceptions are "cases involving (1) important and novel
constitutional questions; (2) informal or [e]x parte determinations of legal
questions by administrative officials; and (3) important public rather than
private interests which require adjudication or clarification." Brunetti v.
Borough of New Milford, 68 N.J. 576, 586 (1975) (footnotes omitted).
Plaintiff argues the Board's November 15 and November 29, 2022
meetings were void because the Board allegedly failed to properly reorganize
for the 2022 year. Based on those allegations, plaintiff had forty-five days from
those dates to file its action in lieu of prerogative writs. However, plaintiff first
asserted this claim in its amended complaint filed on July 6, 2023. Thus,
plaintiff's allegations in count sixteen of the amended complaint were filed well
beyond the forty-five-day time period.
A-4035-23 30 Nor is there anything in the record demonstrating this case qualifies for
an enlargement of the forty-five-day requirement under Rule 4:69-6(c). Plaintiff
failed to articulate any basis for enlarging the forty-five-day period. Because
the allegations in count sixteen of plaintiff's amended complaint were untimely,
the judge properly granted summary judgment.
In count seventeen, plaintiff alleged the Township Committee violated
N.J.S.A. 10:4-8 and N.J.S.A. 10:4-18 by failing to properly notice the Township
Committee's October 20 and December 8, 2022 meetings. Plaintiff claims those
meetings were ultra vires and the judge erred in dismissing count seventeen.
As defined under the OPMA:
"Adequate notice" means written advance notice of at least [forty-eight] hours, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting, which notice shall accurately state whether formal action may or may not be taken and which shall be (1) prominently posted in at least one public place reserved for such or similar announcements, (2) mailed, telephoned, telegrammed, or hand delivered to at least two newspapers . . . designated by the public body . . . because they have the greatest likelihood of informing the public . . . one of which shall be the official newspaper . . . and (3) filed with the clerk of the municipality. . . . Where annual notice or revisions thereof in compliance with [N.J.S.A. 10:4-18] set forth the location of any meeting, no further notice shall be required for such meeting.
[N.J.S.A. 10:4-8(d).]
A-4035-23 31 As we previously noted, N.J.S.A. 10:4-18 requires public bodies to annually
publish "a schedule of the regular meetings of the public body to be held during
the succeeding year."
We are satisfied the judge properly dismissed count seventeen as untimely
under Rule 4:69-6 and N.J.S.A. 10:4-15(a) because that count was filed more
than forty-five days after the January 5, 2022 publication of the Township
Committee's January 2022 reorganization. Plaintiff's July 6, 2023 amended
complaint was filed well beyond the forty-five-day time period for challenging
the Township Committee's January 5, 2022 action.
Further, we reject plaintiff's assertion the annual notice for the Township
Committee's 2022 reorganization failed to comply with N.J.S.A. 10:4-18
because the notice was not sent to two newspapers. The Township Committee
held its 2022 reorganization meeting on January 3, 2022. The Township's clerk
certified she sent the required annual notice "to both The Star-Ledger and the
Asbury Park Press" and "posted [the notice] in the [Township's] municipal
building." Thus, we are satisfied the Township Committee complied with the
OPMA notice requirements and no further notice was required for the Township
Committee's October 20 and December 8, 2022 meetings.
A-4035-23 32 In count four, plaintiff alleges the published notice for the Township's
December 8, 2022 meeting failed to comply with N.J.S.A. 40:55D-63 and
N.J.S.A. 40:49-2 to -2.1 because the amended Ordinance contained "substantial
revisions" from the initial Ordinance.
As first introduced, the Ordinance provided that catering facilities and
banquet halls would be permitted accessory uses in all zones where schools are
permitted provided the Ordinance's parking requirements were satisfied. The
amended Ordinance stated that catering facilities and banquet halls would be
permitted as accessory uses in all non-residential zones where schools were
permitted uses provided the Ordinance's parking requirements were met.
Additionally, the amended Ordinance enhanced the parking requirement by
requiring one parking space for every fifty square feet of the section of the
school utilized for catering and banquet functions.
At the Township Committee's December 8, 2022 meeting, the amended
Ordinance was considered for a second reading. At that meeting, the mayor
explained the Township Committee received recommendations from the Board
with suggested revisions to the original Ordinance. The mayor stated the
Township Committee did not consider the recommended revisions "to be
A-4035-23 33 substantive changes." Therefore, the Township Committee "include[d] the
pertinent suggestions" recommended by the Board in the amended Ordinance.
N.J.S.A. 40:49-2, which addresses the passage of municipal ordinances,
provides:
a. Every ordinance after being introduced and having passed a first reading . . . shall be published in its entirety or by title or by title and summary at least once in a newspaper published and circulated in the municipality . . . together with a notice of the introduction thereof, the time and place when and where it will be further considered for final passage.
c. Upon the opening of the hearing, the ordinance shall be given a second reading, which reading may be by title, and thereafter, it may be passed with or without amendments, or rejected. . . . If any amendment be adopted, substantially altering the substance of the ordinance, the ordinance as so amended shall not be finally adopted until at least one week thereafter . . . and shall be published in its entirety or by title or by title and summary . . . and the time and place when and where the amended ordinance will be further considered for final passage, at least two days prior to the time so fixed. At the time and place so fixed . . . the governing body may proceed to pass the ordinance, as amended, or again amend it in the same manner.
N.J.S.A. 40:49-2.1(c) similarly provides:
If any amendment be adopted to any proposed ordinance substantially altering the substance of the proposed ordinance, there shall be caused to be
A-4035-23 34 published a notice of the title of the ordinance, the introduction and time and place that the amended ordinance will be further considered and a summary of the objectives or provisions of the amendment or amendments, which notice shall be published at least [two] days prior to the time so fixed therefor in accordance with [N.J.S.A. 40:49-2(c)].
Whether an amendment substantially alters the substance of a proposed
ordinance "involves a mixed question of law and fact." Wollen v. Borough of
Fort Lee, 27 N.J. 408, 420 (1958). "The words [of the amendment] are to be
assessed in the context of the provision of which they are a part and the basic
policy of the statute." Ibid. To demonstrate an amendment has substantially
altered the substance of the original ordinance, a plaintiff must show that it "was
of such legally consequential materiality in its contributive relation to the
substantive body of the ordinance . . . which essentially altered the manifest
objective intent and the materiality of the ordinance." Manning v. Borough of
Paramus, 37 N.J. Super. 574, 581 (App. Div. 1955).
The purpose of N.J.S.A. 40:49-2 "is to [e]nsure that the public will be
apprised of the proposed ordinance (or amendment) prior to its final passage in
order that objections may be fully and freely raised and, if persuasive, honored."
LaRue v. Twp. E. Brunswick, 68 N.J. Super. 435, 451 (App. Div. 1961). If an
amendment "imposes no burden on plaintiffs" the amended ordinance will not
A-4035-23 35 be considered a substantial alteration necessitating republication. Wollen, 27
N.J. at 420-21. Similarly, where an amended ordinance's "proposed effect was
an additional gratuity and not an enlarged restraint," the amendment will not be
deemed substantial. Manning, 37 N.J. Super. at 580-81.
Here, we are satisfied the amendment did not substantially alter the
Ordinance to require compliance with N.J.S.A. 40:49-2 and
-2.1. One of the changes incorporated in the amended Ordinance limited the
Ordinance to non-residential zones that allow schools, rather than all zones that
allow schools. The other change in the amended Ordinance required an increase
in the number of parking spaces. By limiting the Ordinance to non-residential
zones, the amendment is more restrictive because it applies to fewer zones. By
increasing the number of required parking spaces, the amended Ordinance
limited traffic congestion and off-street parking. Neither of the changes in the
amended Ordinance altered the enactment's expressed intent to permit banquet
halls and catering facilities as accessory uses to schools.
Here, the focus of public comments questioned the sufficiency of the
proposed parking requirements. The amended Ordinance increased the parking
for catering facilities and banquet halls associated with schools. The increased
parking requirement was "an additional gratuity" for municipal residents, as well
A-4035-23 36 as plaintiff, rather than an impermissible "enlarged restraint." Manning, 37 N.J.
Super. at 580.
We agree with the judge that plaintiff was not aggrieved by the changes
incorporated in the amended Ordinance. Prior to the adoption of the Ordinance,
plaintiff's property, located in the M-1 industrial zone, allowed schools as
permitted uses. See Lakewood, N.J., Code § 18-903(M)(1)(m). The amended
language did not change the Ordinance's impact on plaintiff. In fact, the
amended Ordinance benefited plaintiff by requiring more parking for banquet
halls and catering facilities associated with schools and expressly limiting on-
street and overflow parking which could impact businesses within the industrial
zone. We are satisfied the amended Ordinance did not additionally burden
plaintiff in a way that substantially altered the Ordinance.
In count five, plaintiff alleged the Township Committee violated the
County Planning Board notice provision under N.J.S.A. 40:55D-15(b) and
N.J.S.A. 40:55D-16. Therefore, plaintiff claimed the judge erred in dismissing
that count.
The Township's clerk certified she sent the Ordinance to the Ocean County
Planning Board on October 28, 2022. Additionally, an October 28, 2022 email
from the clerk's office transmitted the Ordinance to the Ocean County Planning
A-4035-23 37 Board on that date. The email stated the "[O]rdinance was [i]ntroduced at the
Township Committee meeting [o]n October 20, 2022" and "[t]he second hearing
and public comment on said [O]rdinance is scheduled for December 8, 2022."
The Township's clerk further certified the Ordinance "as adopted was submitted
to the Ocean County Planning Board on December 12, 2022 in accordance with
N.J.S.A. 40:55D-16." The clerk also sent a December 12 email to the Ocean
County Planning Board attaching the Ordinance as adopted.
N.J.S.A. 40:55D-15(b) states:
Notice by personal service, certified mail, or e-mail with confirmation that the e-mail was delivered, shall be made to the county planning board of (1) all hearings on the adoption, revision or amendment of any development regulation at least [ten] days prior to the date of the hearing.
For the purposes of this section, proof that an e-mail was sent to the correct e-mail address within the required time frame shall constitute a rebuttable presumption that the e-mail was delivered.
Plaintiff argues the Township Committee violated N.J.S.A. 40:55D-15(b)
because it only sent the original Ordinance to the Ocean County Planning Board
and not the amended Ordinance. The Township Committee first introduced the
Ordinance at its October 20, 2022 meeting and stated the matter would be
A-4035-23 38 considered for adoption at the Township Committee's December 8, 2022
meeting after hearing public comment and considering any revisions or
amendments. On October 28, 2022, the Township clerk's office emailed notice
to the Ocean County Planning Board, advising the Township would hold a
"hearing[] on the adoption, revision, or amendment" of the Ordinance of
December 8. N.J.S.A. 40:55D-15(b). The October 28 date was "at least [ten]
days prior" to the December 8, 2022 meeting when the Township Committee
was scheduled to consider adopting the Ordinance. Ibid.
We are satisfied the Township Committee complied with N.J.S.A.
40:55D-15(b). It also complied with N.J.S.A. 40:55D-16 by sending the
amended Ordinance as adopted to the Ocean County Planning Board on
December 12, 2022. Because there was unrefuted evidence in the record
supporting the Township Committee's compliance with the County Planning
Board notice provisions, the judge properly dismissed that count.
In count six, plaintiff argues the Township Committee violated N.J.S.A.
40:55D-62.1 by failing to provide plaintiff with personal notice of the December
8, 2022 meeting because the amended Ordinance constitutes a zoning
classification change.
A-4035-23 39 "N.J.S.A. 40:55D-62.1 directs that all property owners within a zoning
district shall receive personal notice if the municipal body seeks to change the
classification or boundaries of a zoning district." Robert James Pacilli Homes
LLC v. Twp. of Woolwich, 394 N.J. Super. 319, 329 (App. Div. 2007). The
statute provides:
Notice of a hearing on an amendment to the zoning ordinance proposing a change to the classification or boundaries of a zoning district, exclusive of classification or boundary changes recommended in a periodic general reexamination of the master plan by the planning board . . . shall be given at least [ten] days prior to the hearing by the municipal clerk to the owners of all real property as shown on the current tax duplicates, located, in the case of a classification change, within the district and within the State within 200 feet in all directions of the boundaries of the district.
[N.J.S.A. 40:55D-62.1.]
A "classification," while not defined in the MLUL, "refers to the use
permitted in a zoning district, such as residential, commercial, or industrial, as
well as sub-categories within those broader uses." Robert James, 394 N.J.
Super. at 330-31. A change of classification in a zoning district occurs where a
"change in any of these broad categories and sub-categories has the capacity to
fundamentally alter the character of a zoning district." Id. at 331. "[T]he type
of notice to be provided on the occasion of a proposed amendment to a zoning
A-4035-23 40 ordinance should focus on the substantive effect of the amendment rather than
the appellation given to the zone." Id. at 332. "[T]he test is not the number of
changes but the substance of the changes." Id. at 333.
Plaintiff asserts permitting banquet halls and catering facilities as
accessory uses to schools in the Township's M-1 industrial zone constitutes a
classification change to that zone. The M-1 industrial zone is not limited to
industrial uses. The M-1 industrial zone permits industrial uses and permits uses
such as "[p]ublic and private schools"; "[h]otels and motels"; "[f]acilities for on-
site provision of health and human services, including spas, gyms, health clubs,
and like facilities"; and "[r]estaurants." Lakewood, N.J., Code § 18-
903(M)(1)(m), (r), (t), (w). Banquet halls and catering facilities serve food and
host events and, therefore, are similar to restaurants, hotels, and motels. Here,
the Ordinance which allows banquet halls as permitted accessory uses to schools
does not "fundamentally alter the character" of the M-1 industrial zone. Robert
James, 394 N.J. Super. at 331.
Moreover, public and private schools were principal permitted uses in the
M-1 industrial zone prior to enactment of the Ordinance. Lakewood, N.J., Code
§ 18-903 (M)(1)(m). The Board historically recognized banquet halls and
catering facilities as accessory uses to schools and previously approved such
A-4035-23 41 uses through variance applications. The Ordinance allowing banquet halls and
catering facilities as accessory uses to schools in the M-1 industrial zone does
not substantively change the character of the zone requiring notice under
N.J.S.A. 40:55D-62.1. Therefore, the judge properly dismissed this count.
In count eight, plaintiff alleges the Board failed to provide adequate notice
of its November 15 and November 29, 2022 meetings under N.J.S.A. 10:4-9. It
claims the meeting agendas simply stating "ordinance for review" lacked the
required specificity. Therefore, plaintiff argues the judge erred in granting
summary judgment on that count.
"No public body shall hold a meeting unless adequate notice thereof has
been provided to the public." N.J.S.A. 10:4-9(a). Adequate notice under
N.J.S.A. 10:4-8(d) means "written advance notice of at least [forty-eight] hours,
giving the time, date, location and, to the extent known, the agenda of any
regular, special or rescheduled meeting." However, where the governing body
provides annual notice of its meetings, the additional forty-eight-hour notice of
a regularly scheduled meeting is not required. Ibid.; see also Witt v. Gloucester
Cnty. Bd. of Chosen Freeholders, 94 N.J. 422, 433 (1983).
Plaintiff argues the Board's November 15 and 29, 2022 meeting agendas
were insufficient or lacked sufficient specificity to inform the public of the
A-4035-23 42 matters to be discussed. However, the Board published notice of its 2022 annual
meetings in two newspapers. The notice included the November 15 and
November 29, 2022 meetings. Because the Board provided annual notice of its
2022 meeting dates, it did not have to publish agendas for either of these
meetings. Ibid.; see also Crifasi v. Governing Body of Oakland, 156 N.J. Super.
182, 186 (App. Div. 1978) ("[T]here is no requirement in the [OPMA] that an
agenda need be published prior to a regularly scheduled meeting.").
Importantly, it is undisputed plaintiff attended both meetings. It is evident
plaintiff had ample notice of these meetings and the issues to be addressed, as
plaintiff attended with its planning expert and a court reporter. Additionally,
members of the public offered comments at these meetings, further evidencing
the public's awareness of the issues to be discussed. Thus, we are satisfied the
judge properly dismissed this count.
In count one, plaintiff alleges the Township Committee lacked the
authority to conduct virtual meetings under the OPMA. Therefore, plaintiff
argues the judge erred in granting summary judgment dismissal of this count.
The Township Committee's October 20 and December 8, 2022 meetings
were held virtually through a secure web conferencing service. Members of the
A-4035-23 43 public could attend these meetings via a video link or by telephone. The OPMA
defines "[m]eeting" as
any gathering whether corporeal or by means of communication equipment, which is attended by, or open to, all of the members of a public body, held with the intent, on the part of the members of the body present, to discuss or act as a unit upon the specific public business of that body.
[N.J.S.A. 10:4-8(b).]
We consider the plain language of a statute to interpret its meaning and
accord statutory language its ordinary meaning to effectuate its intent.
McGovern, 211 N.J. at 108. The plain language of N.J.S.A. 10:4-8(b) permits
meetings "by means of communication equipment." Plaintiff does not dispute
that the secure web conferencing service constitutes a "means of communication
equipment." N.J.S.A. 10:4-8(b). The OPMA expressly permits such a meeting
format. Therefore, the Township Committee's meetings held through a web
platform did not violate the statute. Consequently, we are satisfied the judge
properly granted summary judgment dismissal of that count.
We next address plaintiff's argument that the judge erred in denying its
motion for reconsideration and denying its request to extend discovery. Plaintiff
sought to expand discovery to explore a Township Committee member's alleged
conflict of interest, to introduce a report authored by its expert planner, and to
A-4035-23 44 obtain discovery related to the Township Committee's transmittal of its 2022
annual meeting notice. We disagree.
In rejecting the motion for reconsideration, the judge stated he was
"satisfied that [his] written decision [on summary judgment] sufficiently
addressed all the issues in the [c]ourt's view" and did not "believe
reconsideration [wa]s in the interest of justice based on what [he] heard."
Regarding the extension of discovery on the purported conflict of interest, the
judge explained the issue was "a legal inquiry that should be determined by the
[c]ourt without the need for depositions." The judge found the deposition of a
particular Township Committee member would be "nothing more . . . than a
fishing expedition." The judge further found plaintiff had an opportunity to
submit the professional planner's expert report during the original discovery
period but failed to do so. Additionally, the judge stated he would "hear
testimony if necessary" on the issue of the Township Committee's 2022 annual
notice.
We review a trial judge's decision on a motion for reconsideration for
abuse of discretion. Branch, 244 N.J. at 582. "When examining a trial court's
exercise of discretionary authority, we reverse only when the exercise of
discretion was 'manifestly unjust' under the circumstances." Newark Morning
A-4035-23 45 Ledger Co. v. N.J. Sports & Exposition Auth., 423 N.J. Super. 140, 174 (App.
Div. 2011) (quoting Union Cnty. Improvement Auth. v. Artaki, LLC, 392 N.J.
Super. 141, 149 (App. Div. 2007)).
Reconsideration requires a party demonstrate either the court "expressed
its decision based upon a palpably incorrect or irrational basis" or the court "did
not consider, or failed to appreciate the significance of the probative, competent
evidence." Triffin v. SHS Group, LLC, 466 N.J. Super. 460, 466 (App. Div.
2021) (quoting Cummings v. Bahr, 295 N.J. Super. 374, 387 (App. Div. 1996)).
"A litigant should not seek reconsideration merely because of dissatisfaction
with a decision of the [c]ourt." Capital Finance Co. of Delaware Valley, Inc. v.
Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008) (alteration in original)
(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).
Before this court, plaintiff repeats the same arguments in support of its
motion for reconsideration. However, plaintiff fails to demonstrate why the
judge rendered an incorrect decision. Nor does plaintiff offer any new
information not previously available or any case law warranting reconsideration.
Thus, the judge did not abuse his discretion in denying reconsideration.
We also reject plaintiff's arguments regarding the judge's denial of its
motion to expand discovery. "An appellate court applies 'an abuse of discretion
A-4035-23 46 standard to decisions made by [the] trial courts relating to matters of discovery.'"
C.A. ex. rel. Applegrad v. Bentolila, 219 N.J. 449, 459 (2014) (alteration in
original) (quoting Pomerantz Paper Corp. v. New Comty. Corp., 207 N.J. 344,
371 (2011)). We "generally defer to a trial court's disposition of discovery
matters unless the court has abused its discretion or its determination is based
on a mistaken understanding of the applicable law." Pomerantz, 207 N.J. at 371
(quoting Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div. 2005)).
Regarding its argument to expand the record to depose the Township
Committee member regarding an alleged conflict of interest, plaintiff only raised
the issue after filing motions for summary judgment and after the scheduling of
a trial date. Plaintiff fails to explain why it was unable to depose the committee
member earlier or why that individual's deposition was essential to the
disposition of the case. We are satisfied the judge did not abuse his discretion
in denying the motion to extend discovery.
Regarding plaintiff's motion to expand discovery to submit an expert
planning report and additional discovery regarding the Township Committee's
2022 annual notice, plaintiff fails to brief these issues on appeal. Thus, the
issues are waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App.
Div. 2011) ("An issue not briefed on appeal is deemed waived.")
A-4035-23 47 We next address plaintiff's argument that the judge erred in dismissing the
remaining counts of its amended complaint following a bench trial. We
disagree.
On May 21, 2024, the judge held a trial on the remaining counts of
plaintiff's amended complaint based on the documentary record. In a July 9,
2024 final judgment and accompanying written decision, the judge dismissed
the remaining counts of plaintiff's amended complaint with prejudice.
The judge's written decision grouped plaintiff's remaining claims as
follows: alleged conflicts of interest of a committee member (counts two and
three); challenge to the Ordinance's substance (counts fourteen and fifteen);
challenge to the consistency review conducted by the Board and considered by
the Township Committee (counts nine, ten, eleven, and thirteen); and challenge
to the procedures for conducting the meetings (counts seven and twelve).
In rejecting plaintiff's arguments alleging a committee member's conflict
of interest, the judge concluded plaintiff failed to show any "actionable
conflict." The judge found "[t]he purported conflicts alleged by . . . [p]laintiff
[we]re too speculative to constitute a disqualifying interest and required
speculative findings as to issues affecting non-parties" and "[t]he purported
interests cannot be quantified without rash speculation."
A-4035-23 48 The judge rejected plaintiff's argument that the Township Committee's
four-minute time limit for public comment at its December 8, 2022, meeting was
arbitrary, capricious, or unreasonable and violated the OPMA. The judge
concluded the time limit "did not regulate the content of the comments" and "did
not limit the content of the communication." The judge also found plaintiff
submitted written comments before the December 8, 2022 meeting and
plaintiff's professional planner was given four minutes to offer his thoughts at
the meeting in addition to his written comments.
The judge explained the imposed time limit "was tailored to achieve the
government's significant interest in allowing greater participation by more
members of the public." Further, the judge noted the time limit was established
"prior to opening the public comment portion of the meeting and was applied to
all parties." The judge stated the time constraint did not violate the OPMA
because case law gives a public body discretion in conducting meetings and
N.J.S.A. 10:4-12(a) permits a public body to regulate public participation at its
meetings.
The judge also rejected plaintiff's challenge to the Board's consistency
review and the Township Committee's reliance on the recommendations
A-4035-23 49 emanating from the Board's consistency review. In dismissing those claims, the
judge found the Board's consistency review "satisfie[d] the MLUL."
As to the form of the Board's consistency review, the judge held the
MLUL did not require "formality by the Board in its review and in reporting
back to the [Township] Committee." The judge specifically found the MLUL
did not require the Board to submit a written resolution reporting its consistency
findings. In fact, the judge concluded the Board "exceeded" the MLUL's
reporting requirements because it held two public meetings with participation
from the public and formed an ad hoc committee to consider the Ordinance's
consistency with the Township's master plan.
The judge also cited the email from the Board's attorney which detailed
the Board's finding that the Ordinance was consistent with the Township's
master plan. The judge found this email "satisfie[d] the report requirement" of
the MLUL and "the form and substance of the [email] report comport[ed] with
the provisions of the MLUL."
Additionally, the judge concluded the Township Committee satisfied its
obligation under the MLUL to review the consistency report . The judge
determined "the detailed review of the report on the record in the presence of
the [Township] Committee and the comments by the voting [Township]
A-4035-23 50 Committee members as to the report, satisfie[d] their obligation to review the
Board's report." Moreover, the judge expressly found the Township Committee
"incorporated the recommendation[s] of the Board it viewed as pertinent and
addressed its reasons for declining to apply the other suggestions."
In addition, the judge found "there [wa]s nothing improper" about the
Board's secretary and Board's administrator sending a summary of pertinent
information to the Board to decide whether the Ordinance was consistent with
the Township's master plan. The judge held "the Board was free to accept this
information during their administrative review."
The judge also rejected plaintiff's claim the amended Ordinance was
inconsistent with the Township's master plan. The judge found "the
municipality complied with the requirements of the MLUL where it was
responding to a need identified by the Board where the Board requested
legislative guidance as to banquet halls as accessory uses." The judge
determined "[t]he [a]mended Ordinance formalize[d] what had been . . . an ad
hoc approach applied by the Board to a reoccurring issue in Lakewood given the
number of schools." As the judge noted, the Township's master plan
acknowledged the Township has a large number of private, parochial schools,
the Board historically viewed banquet halls and catering facilities as accessory
A-4035-23 51 uses to schools, and the amended Ordinance only applied to non-residential
zones where schools are permitted uses. Thus, the judge found that "[b]y
providing parking requirements for accessory banquet facilities, where there
were none, the Ordinance cannot be said to be unreasonable or to distort the
basic provisions of the [m]aster [p]lan" because "[t]he [O]rdinance addresse[d]
an issue in zones where schools have been permitted, and where banquet
facilities have been viewed as accessory uses."
In dismissing plaintiff's assertion that the amended Ordinance constituted
a conditional use, the judge found the amended Ordinance "d[id] not create a
conditional use" because "the [Township] Committee has legislated through the
Ordinance providing that a banquet facility shall continue to be considered an
accessory use to a school, the school being the principal use."
Nor did the judge deem the use of word "etc." in the amended Ordinance
too vague. The judge explained the term "etc." "[wa]s defined as the areas 'not
associated with the banquet hall functions' followed by a non-exhaustive list."
Moreover, the judge stated, "the term 'etc.' [wa]s regularly used in regulations
to emphasize that the examples provided [we]re a non-exhaustive list, which
was the case here."
A-4035-23 52 Plaintiff also argues the amended Ordinance is arbitrary, capricious,
unreasonable, and not substantially consistent with the Township's master plan.
Based on these arguments, plaintiff contends the judge erred in granting final
judgment in favor of defendants and dismissing the amended complaint. We
Appellate courts apply a deferential standard in reviewing factual findings
by a judge. Balducci v. Cige, 240 N.J. 574, 594 (2020). In an appeal from a
bench trial, "we give deference to the trial court that . . . sifted the competing
evidence, and made reasoned conclusions." Griepenburg v. Twp. of Ocean, 220
N.J. 239, 254 (2015). "Reviewing appellate courts should 'not disturb the factual
findings and legal conclusions of the trial judge' unless convinced that those
findings and conclusions were 'so manifestly unsupported by or inconsistent
with the competent, relevant and reasonably credible evidence as to offend the
interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of
Am., 65 N.J. 474, 484 (1974)). However, "[a] trial court's interpretation of the
law and the legal consequences that flow from established facts are not entitled
to any special deference." Rowe v. Bell & Gossett Co., 239 N.J. 531, 552 (2019)
(alteration in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)).
A-4035-23 53 "[W]hen reviewing the decision of a trial court that has reviewed
municipal action, we are bound by the same standards as was the trial court."
Fallone Props., LLC v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562
(App. Div. 2004). "As a general principle, a municipal ordinance is afforded a
presumption of validity, and the action of a board will not be overturned unless
it is found to be arbitrary and capricious or unreasonable, with the burden of
proof placed on the plaintiff challenging the action." Grabowsky v. Twp. of
Montclair, 221 N.J. 536, 551 (2015) (citing Price v. Himeji, LLC, 214 N.J. 260,
284 (2013)). "An ordinance must be 'liberally construed' in favor of its validity."
388 Route 22 Readington Realty Holdings, LLC v. Twp. of Readington, 221
N.J. 318, 339-40 (2015) (quoting Rumson Estates, Inc. v. Mayor & Council of
Fair Haven, 177 N.J. 338, 351 (2003)). "Our charge is to pass not on the wisdom
of a municipal ordinance, but only on whether it complies with the Constitution
and the MLUL." Id. at 340.
"Courts must also pay deference to the decision-making of municipal
bodies, recognizing that they possess 'peculiar knowledge of local conditions
[and] must be allowed wide latitude in the exercise of delegated discretion.'"
Ibid. (alteration in original) (quoting Kramer v. Bd. of Adjustment, Sea Girt, 45
N.J. 268, 296 (1965)). "A municipal land-use determination should not be set
A-4035-23 54 aside unless the public body has engaged in 'a clear abuse of discretion.'" Ibid.
(quoting Kramer, 45 N.J. at 296-97). "If there is 'substantial evidence to support'
the municipal decision, a court should not interfere by substituting its
judgment." Ibid. (quoting Kramer, 45 N.J. at 296). "[T]he fundamental question
in all zoning cases 'is whether the requirements of the ordinance are reasonable
under the circumstances.'" Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J.
282, 290 (2001) (quoting Vickers v. Twp. Comm. of Gloucester Twp., 37 N.J.
232, 245 (1962)).
Under the MLUL:
The governing body may adopt or amend a zoning ordinance relating to the nature and extent of the uses of land and of buildings and structures thereon. . . . [A]ll of the provisions of such zoning ordinance or any amendment or revision thereto shall either be substantially consistent with the land use plan element and the housing plan element of the master plan or designed to effectuate such plan elements.
[N.J.S.A. 40:55D-62(a).]
"[T]he MLUL gives the master plan a central role in a municipality's decisions
regarding the use and development of the land within its jurisdiction."
Willoughby v. Wolfson Grp., Inc., 332 N.J. Super. 223, 229 (App. Div. 2000).
"Nonetheless, the MLUL does not mandate absolute consistency between a
zoning ordinance and a master plan." Myers v. Ocean City Zoning Bd. of
A-4035-23 55 Adjustment, 439 N.J. Super. 96, 104 (App. Div. 2015). "[T]he concept of
'substantially consistent' permits some inconsistency, provided it does not
substantially or materially undermine or distort the basic provisions and
objectives of the [m]aster [p]lan." Ibid. (first alteration in original) (quoting
Manalapan Realty, 140 N.J. at 384). A determination by a planning board that
an ordinance is substantially consistent with a master plan "is entitled to
deference and great weight." Manalapan Realty, 140 N.J. at 383.
Here, the judge concluded the amended Ordinance was not arbitrary,
capricious, or unreasonable or inconsistent with the Township's master plan.
The judge's findings were amply supported by credible evidence in the record.
One of the Township's master plan's goals is to "[p]rovide sufficient
educational, recreational, and community facilities to meet future needs ." The
Township's land use strategies in the master plan include, among other things,
an intent to "[c]reate a balanced and compatible arrangement of residential,
business and industrial land uses and minimize land use conflicts" and to
"[a]mend the zoning ordinance, when necessary, to improve and enhance the
intent and purpose of each zone district and the consistency and clarity of the
permitted uses and development standards."
A-4035-23 56 The land use element of the Township's master plans describes the
"purpose" of the M-1 industrial zone. The purpose of that zone
is to facilitate the development of uses of an industrial nature, such as: bulk storage, manufacturing or assembly facilities; warehouses; public utility uses; airports; office buildings; hotels and motels; health and human services; restaurants; laboratories; uses affiliated with the operations of the United States Postal Service; and, similar uses. In addition, the M-1 ([i]ndustrial) [z]one provides for the development of quasi-public and private educational facilities.
The Township's master plan also notes "[t]he Township is home to a large
number of private, parochial primary and secondary schools" and that "[o]ne of
the critical planning issues for Lakewood is the amount of land in suitable areas
for an increasing number of private school facilities." The master plan further
states "[p]rivate schools serving the needs of Lakewood families are the most
prevalent type of educational facility in the Township, and operate with a wide
range of enrollment throughout the Township."
Here, the Ordinance allows banquet halls as permitted accessory uses to
schools in all non-residential zones where schools are permitted uses provided
the parking requirements are satisfied. The Board explained it historically
viewed banquet halls as accessory to schools and previously approved
applications allowing banquet halls attached to schools. Thus, the Board
A-4035-23 57 recommended the Township "codify[] that banquet halls [we]re an accessory use
to schools" because the Board "for many years, viewed banquet halls as an
accessory to schools" without a formal ordinance.
On this record, we are satisfied the Ordinance is not arbitrary, capricious,
or unreasonable. The Ordinance allows banquet halls as accessory uses to
schools in non-residential zones where schools are already permitted uses. See
Lakewood, N.J., Code § 18-906(I). The Ordinance provided necessary guidance
for catering facilities and banquet halls as accessory uses to schools where there
was no prior guidance.
Contrary to plaintiff's argument that the Ordinance would cause increased
traffic, the Ordinance sets forth specific parking requirements aimed to reduce
high-traffic conditions. By providing specific parking ratios, the Ordinance
ensures proper parking is available for a banquet hall operating as an accessory
use to a school and precludes on-street parking that might generate traffic
problems. The Board discussed the parking situation in detail and recommended
the Township Committee require additional parking to address increased traffic
volumes. The Ordinance simply codified the historic view within the
municipality that banquet halls and catering facilities were an appropriate
accessory use to a school in zones where schools were permitted uses.
A-4035-23 58 We agree with the judge's finding that the Ordinance was substantially
consistent with the master plan's land use element. The Township's master plan
recognizes a purpose of the M-1 industrial zone is to "provide[] for the
development of quasi-public and private educational facilities." Consistent with
this purpose, the Ordinance allows banquet halls affiliated with private schools
to operate as accessory uses to those schools. Moreover, the M-1 industrial zone
allows hotels, restaurants, and health services which, like schools, are not
traditional industrial uses. There is no evidence the Ordinance would
"substantially or materially undermine or distort" the purpose of the M -1
industrial zone. Manalapan Realty, 140 N.J. at 384. Thus, plaintiff fails to
overcome the deference accorded to the Board's consistency determination.
We next address plaintiff's argument that neither the Board nor the
Township Committee reviewed the Ordinance for consistency with the
Township's master plan. As a result, plaintiff contends the Ordinance is
arbitrary, capricious, and unreasonable.
N.J.S.A. 40:55D-64 provides: "Prior to the hearing on adoption of a
zoning ordinance, or any amendments thereto, the governing body shall refer
any such proposed ordinance or amendment thereto to the planning board
pursuant to [N.J.S.A. 40:55D-26]." N.J.S.A. 40:55D-26(a) states:
A-4035-23 59 Prior to the adoption of a development regulation, revision, or amendment thereto, the planning board shall make and transmit to the governing body, within [thirty-five] days after referral, a report including identification of any provisions in the proposed development regulation, revision or amendment which are inconsistent with the master plan and recommendations concerning these inconsistencies and any other matters as the board deems appropriate. The governing body, when considering the adoption of a development regulation, revision or amendment thereto, shall review the report of the planning board and may disapprove or change any recommendation by a vote of a majority of its full authorized membership and shall record in its minutes the reasons for not following such recommendation. Failure of the planning board to transmit its report within the [thirty- five]-day period provided herein shall relieve the governing body from the requirements of this subsection in regard to the proposed development regulation, revision or amendment thereto referred to the planning board.
"Any ordinance regulating land use that is not adopted in accordance with
[N.J.S.A. 40:55D-62(a)] is invalid." Nouhan v. Bd. of Adjustment of Clifton,
392 N.J. Super. 283, 291 (App. Div. 2007).
Here, the judge found the Board's consistency review of the Ordinance
comported with the MLUL. The Township Committee introduced the Ordinance
at its October 20, 2022 meeting and then referred the Ordinance to the Board for
review. The Board held two consistency review meetings on November 15,
2022, and November 29, 2022. At the beginning of the November 15, 2022
A-4035-23 60 meeting, the Board's attorney explained the Board had to determine whether the
Ordinance was "consistent or inconsistent with the objectives of the [m]aster
[p]lan." As part of the consistency review, the Board considered public
comments at the November 15, 2022, meeting, including plaintiff's objections
through its attorney and comments from plaintiff's professional planner.
Additionally, the Board formed an ad hoc committee to meet with the Board's
planner and review the Ordinance's consistency with the Township's master
plan.
The Board met again on November 29, 2022 to continue its consistency
review. At that meeting, the Board's administrator reported the ad hoc
committee met and discussed whether the Ordinance should apply to residential
zones and whether the parking requirements would be sufficient. The Board
again considered public comments, including those from plaintiff's attorney and
plaintiff's professional planner. Following the comments, the Board voted to
approve a motion stating, "the Board agree[d] that an ordinance regulating
banquet halls as an accessory use to schools [wa]s consistent with the [m]aster
[p]lan" and recommended the Township Committee include more parking
requirements. The Board's attorney then sent a December 1, 2022 email to the
Township's attorney, reporting the Board's findings and expressing that the
A-4035-23 61 "[B]oard believe[d] that th[e] [O]rdinance [wa]s consistent with the master
plan." Additionally, the Board's attorney advised that the Board urged the
Township Committee to require more parking as part of the Ordinance.
Having reviewed the record, we are satisfied the Board's consistency
review complied with the MLUL. The Board held two meetings to consider
whether the Ordinance was consistent with the Township's master plan. The
Board's attorney confirmed the purpose of the Board's review of the Ordinance
and advised the Board to report its findings to the Township Committee. In an
email to the Township's attorney, the Board's attorney confirmed the Board's
recommendation, finding the Ordinance consistent with the Township's master
plan. The Board attorney's email included the Board's recommendation to
increase the Ordinance's parking requirements.
The MLUL does not require any particular formality regarding the format
of a local board's consistency review report. See N.J.S.A. 40:55D-26(a). The
email from the Board's attorney to the Township's attorney comported with the
MLUL.
Contrary to plaintiff's arguments, the Board considered the comments and
objections presented by plaintiff's attorney and plaintiff's professional planner
at its consistency review meetings. Plaintiff's planning expert opined the
A-4035-23 62 Ordinance was inconsistent with the Township master plan. However, the Board
was not bound by the opinions of plaintiff's planning expert. See Allen v.
Hopewell Twp. Zoning Bd. of Adjustment, 227 N.J. Super. 574, 581 (App. Div.
1988) (noting the planning board was free "to accept or reject" the opinions of
an expert planner presented by the plaintiffs). We are satisfied there is sufficient
evidence supporting the Board's consistency review in accordance with N.J.S.A.
40:55D-26(a).
Plaintiff further argues the email from the Board's attorney failed to
adequately convey the concerns related to the Ordinance addressed during the
Board's meetings. We disagree.
The Board's primary concerns in its consistency review meetings focused
on the Ordinance's impact on residential zones and the parking requirements.
These concerns were conveyed to the Township Committee in the Board
attorney's email. This email included the Board's consideration of "possible
different alternatives to define the criteria from which parking ratios could be
calculated," including "a ratio that would be based upon the gross square footage
of the building." Thus, the Board's attorney adequately conveyed the Board's
concerns about the Ordinance.
A-4035-23 63 We also reject plaintiff's argument that the Board's action was arbitrary,
capricious, and unreasonable because the Board never discussed
"grandfathering" existing schools with banquet halls. Although the Board may
not have used the term "grandfathering," the Board noted its longstanding view
that banquet halls were accessory uses to schools and its historical approval of
applications for banquet halls in schools. Further, the Board reviewed existing
schools with banquet halls to determine an appropriate parking ratio as part of
its recommendation to the Township Committee.
In support of its claim that the Ordinance is arbitrary, capricious, and
unreasonable, plaintiff also argues the Board failed to request a report from the
Board's planner. However, the Board's planner served as a member of the ad
hoc committee formed to address the Ordinance's consistency with the
Township's master plan.
We are satisfied the Board's recommendation regarding the Ordinance's
consistency with the Township's master plan was not arbitrary, capricious, or
unreasonable. Thus, the judge properly entered judgment for defendants on this
issue.
Plaintiff also argues the Township Committee's limiting of public
comment to four-minutes at the December 8, 2022 meeting was arbitrary,
A-4035-23 64 capricious, and unreasonable and prejudiced plaintiff's right to be heard. We
The Township Committee's imposition of a four-minute time limit for
public comment at its December 8, 2022 meeting applied to everyone. During
his time, plaintiff's attorney voiced plaintiff's objection to the amended
Ordinance. Plaintiff's planning expert also used his four minutes to voice
objections to the amended Ordinance. Further, the Township Committee
included plaintiff's December 7, 2022 letter to the Township Committee
objecting to the amended Ordinance as part of the record at the December 8
meeting.
The OPMA provides that "all meetings of public bodies shall be open to
the public at all times" absent certain exceptions. N.J.S.A. 10:4-12(a). It also
provides that "[n]othing in [the OPMA] shall be construed to limit the discretion
of a public body to permit, prohibit, or regulate the active participation of the
public at any meeting." Ibid. Regarding compliance with the OPMA, "public
bodies are given discretion in how to conduct their meetings." Kean Fed'n of
Tchrs. v. Morell, 233 N.J. 566, 571 (2018) (citing N.J.S.A. 10:4-12(a)). N.J.S.A.
40:49-2(b) provides that whenever a meeting "for the further consideration" of
A-4035-23 65 an ordinance is held, "all persons interested shall be given an opportunity to be
heard concerning the ordinance."
We discern no error in the Township Committee's procedure for the
presentation of public comment at its December 8, 2022 meeting. The four-
minute time constraint on public comment applied to all members of the public,
not just to plaintiff's attorney and plaintiff's planning expert. Further, the time
limit did not regulate the content of public comments. Plaintiff had ample
opportunity to present its objections to the amended Ordinance at the Township
Committee's December 8, 2022 meeting prior to the Ordinance's adoption.
Additionally, plaintiff asserts a Township Committee member had a
disqualifying conflict of interest precluding his voting on the Ordinance under
N.J.S.A. 40A:9-22.5(d). Plaintiff argues the Township Committee member had
a conflict of interest because his children attended a school with a banquet hall
and the Ordinance would thus benefit that member. Plaintiff further claims the
Township Committee member's mother served as an administrator at schools in
the municipality and those schools would benefit from adoption of the
Ordinance. Because it claims these immediate familial relations disqualified the
Township Committee member's participation in meetings concerning the
A-4035-23 66 Ordinance, plaintiff argues the Township Committee lacked a majority of the
governing body to vote on the amended Ordinance. Again, we disagree.
"Under our common law, '[a] public official is disqualified from
participating in judicial or quasi-judicial proceedings in which the official has a
conflicting interest that may interfere with the impartial performance of his
duties as a member of the public body.'" Grabowsky, 221 N.J. at 551 (alteration
in original) (quoting Wyzykowski v. Rizas, 132 N.J. 509, 523 (1993)). The
Local Government Ethics Law (LGEL), N.J.S.A. 40A:9-22.1 to -22.25, is
designed "to make ethical standards in state and local government 'clear,
consistent, uniform in their application, and enforceable on a statewide basis.'"
Id. at 552 (quoting Wyzykowski, 132 N.J. at 531).
Under the LGEL:
No local government officer or employee shall act in his official capacity in any matter where he, a member of his immediate family, or a business organization in which he has an interest, has a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment.
[N.J.S.A. 40A:9-22.5(d).]
A-4035-23 67 The LGEL defines "[m]ember of immediate family" as "the spouse or dependent
child of a local government officer or employee residing in the same household."
N.J.S.A. 40A:9-22.3(i).
Wyzykowski set forth the circumstances mandating disqualification of a
public official, which include:
(1) "Direct pecuniary interests," when an official votes on a matter benefitting the official's own property or affording a direct financial gain; (2) "Indirect pecuniary interests," when an official votes on a matter that financially benefits one closely tied to the official, such as an employer, or family member; (3) "Direct personal interest," when an official votes on a matter that benefits a blood relative or close friend in a non- financial way, but in a matter of great importance . . . and (4) "Indirect [p]ersonal [i]nterest," when an official votes on a matter in which an individual's judgment may be affected because of membership in some organization and a desire to help that organization further its policies.
[132 N.J. at 525-26.]
"[W]hether a particular interest is sufficient to disqualify is necessarily a
factual one and depends upon the circumstances of the particular case." Van
Itallie v. Borough of Franklin Lakes, 28 N.J. 258, 268 (1958) (citing Aldom v.
Borough of Roseland, 42 N.J. Super. 495, 503 (App. Div. 1956)). "To determine
whether there is a disqualifying interest, a court need not ascertain whether a
public official has acted dishonestly or has sought to further a personal or
A-4035-23 68 financial interest; the decisive factor is 'whether there is a potential for conflict.'"
Grabowsky, 221 N.J. at 554 (quoting Wyzykowski, 132 N.J. at 524). "A
conflicting interest arises when the public official has an interest not shared in
common with the other members of the public." Wyzykowski, 132 N.J. at 524
(citing Griggs v. Borough of Princeton, 33 N.J. 207, 220-21 (1960)). "Another
way of analyzing the issue is to understand that '[t]here cannot be a conflict of
interest where there do not exist, realistically, contradictory desires tugging the
official in opposite directions.'" Ibid. (alteration in original) (quoting LaRue,
68 N.J. Super. at 448). "The question will always be whether the circumstances
could reasonably be interpreted to show that they had the likely capacity to tempt
the official to depart from his sworn public duty." Van Itallie, 28 N.J. at 268.
Nonetheless, "[t]he determinations of municipal officials should not be
approached with a general feeling of suspicion." Id. at 269. "The ethics rules
must be applied with caution, as '[l]ocal governments would be seriously
handicapped if every possible interest, no matter how remote and speculative,
would serve as a disqualification of an official.'" Grabowsky, 221 N.J. at 554
(alteration in original) (quoting Wyzykowski, 132 N.J. at 523).
We are satisfied the Township Committee member at issue here did not
have a disqualifying interest precluding his voting on the Ordinance. The judge
A-4035-23 69 expressly rejected plaintiff's conflict of interest allegations as "remote and
speculative." Wyzykowski, 132 N.J. at 523. Thus, the Township Committee
had a required majority of members to vote on the Ordinance at its December 8,
2022 meeting and the judge did not err dismissing this claim.
Plaintiff also argues the amended Ordinance creates a conditional use in
violation of N.J.S.A. 40:55D-67. According to plaintiff, the Ordinance's parking
requirements effectively created a conditional use in non-residential zones and
failed to establish definite standards for the conditional use under the statute.
A conditional use is defined as:
[A] use permitted in a particular zoning district only upon a showing that such use in a specified location will comply with the conditions and standards for the location or operation of such use as contained in the zoning ordinance, and upon the issuance of an authorization therefore by the planning board.
[N.J.S.A. 40:55D-3.]
"A conditional use is a use permitted in a particular zone, but only upon
certain conditions." Omnipoint Commc'n, Inc. v. Bd. of Adjustment of
Bedminster, 337 N.J. Super. 398, 413 (App. Div. 2001). "That is, a conditional
use, as opposed to a prohibited use, is based on the premise that the use is
generally suitable to a particular zoning district, but not at every location in the
district." Ibid. (citing Coventry Square v. Westwood Zoning Bd. of Adjustment,
A-4035-23 70 138 N.J. 285, 294 (1994)). "Consequently, a conditional use ordinarily will
require compliance with special enumerated standards with respect to traffic
patterns, street access, parking and such, to [en]sure that it can be compatibly
integrated with the district as a whole." Ibid. (citing Coventry Square, 138 N.J.
at 294).
N.J.S.A. 40:55D-67(a) provides: "A zoning ordinance may provide for
conditional uses to be granted by the planning board according to definite
specifications and standards which shall be clearly set forth with sufficient
certainty and definiteness to enable the developer to know their limi t and
extent." If a conditional use clause in an ordinance does not include these
specific standards, it may be "void for vagueness." Meszaros v. Plan. Bd. of S.
Amboy, 371 N.J. Super. 134, 144 (App. Div. 2004).
We are satisfied the Ordinance did not create a conditional use. The
Ordinance is clear that "[i]n all non-residential zones where schools are
permitted uses . . . catering facilities and banquet halls shall continue to be
allowed as accessory uses in the school buildings" provided that the parking
requirements are met. Lakewood, N.J., Code § 18-906(I)(1). Under the
Ordinance, the schools are the principal permitted use, while the catering
facilities and banquet halls are accessory uses serving events associated with
A-4035-23 71 private schools throughout the municipality. Catering facilities and banquet
halls serve as "customary" and "incidental" uses to the principal permitted use
of the school and, therefore, are accessory uses to the schools rather than
conditional uses. Mountain Hill, L.L.C. v. Zoning Bd. of Adjustment of
Middletown, 403 N.J. Super. 210, 243 (App. Div. 2008) (citing State v. P.T. &
L. Const. Co., Inc., 77 N.J. 20, 26-27 (1978)).
We also reject plaintiff's argument related to the use of the word "etc." in
the Ordinance as vague rendering it arbitrary, capricious, and unreasonable. As
to parking, the Ordinance states:
For the section of the school utilized for catering and banquet functions (to be known as the [b]anquet [h]all space, but not including bathrooms, food prep rooms, and facilities not associated with the [b]anquet [h]all function such as guest preparation rooms etc.) 1.0 parking space shall be required for every 50 square feet thereof.
[Lakewood, N.J., Code § 18-906(I)(1)(a).]
The judge noted the term "etc." followed the phrase "facilities not
associated with the [b]anquet [h]all function." He explained the Ordinance
specifically listed examples and concluded the word "etc." "emphasize[d] that
the examples provided [we]re a non-exhaustive list." We agree with the judge
A-4035-23 72 that the term "etc." did not render the Ordinance arbitrary, capricious, or
unreasonable.
For the foregoing reasons, we affirm the orders challenged on appeal.
Affirmed.
A-4035-23 73
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Cite This Page — Counsel Stack
1650 Corporate Road West, LLC v. the Township Committee of the Township of Lakewood, Counsel Stack Legal Research, https://law.counselstack.com/opinion/1650-corporate-road-west-llc-v-the-township-committee-of-the-township-of-njsuperctappdiv-2026.