514 MILLBURN AVENUE, LLC VS. PLANNING BOARD OF THE TOWNSHIP OF MILLBURN(L-8136-15, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 21, 2017
• Docket: A-0227-16T3
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0227-16T3

514 MILLBURN AVENUE, LLC, VINCENT URSO, and PERRY URSO d/b/a ENZZOS TRATTORIA RESTAURANT,

Plaintiffs-Appellants,

v.

PLANNING BOARD OF THE TOWNSHIP OF MILLBURN,

Defendant-Respondent,

and

RESTAURANT CONCEPT CONSULTANTS, LLC and INVESTORS HOLDING FUND, LLC,

Defendants. __________________________________________

Argued October 31, 2017 - Decided November 21, 2017

Before Judges Reisner and Mayer.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8136- 15.

Ronald S. Gasiorowski argued the cause for appellants (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, on the briefs). Edward J. Buzak argued the cause for respondent (The Buzak Law Group, LLC, attorneys; R. Scott Eveland and Susan L. Crawford, on the brief).

PER CURIAM

Plaintiffs 514 Millburn Avenue, LLC, Vincent Urso, and Perry

Urso d/b/a Enzzos Trattoria Restaurant appeal from an August 22,

2016 order dismissing their complaint in lieu of prerogative writs

against defendants Planning Board of the Township of Millburn

(Board), Restaurant Concept Consultants, LLC (RCC) and Investors

Holding Fund, LLC.1 We affirm.

On April 29, 2015, RCC applied to the Board for conditional

use approval, preliminary and final site plan approval, and certain

variances and waivers to convert a fast food restaurant to a

restaurant/bar. Public hearings on RCC's application were held

on July 15, 2015 and September 2, 2015. RCC presented expert

testimony. Plaintiffs' counsel opposed the application. The

Board also heard from the public on RCC's application, including

comments from residents in Millburn and Springfield, the

municipality adjacent to the proposed development.

Plaintiffs own and operate a competitor restaurant near RCC's

proposed development. RCC's project straddled the boundary line

between Millburn and Springfield. A majority of RCC's proposed

1 The trial court issued an amended order dated October 12, 2016.

2 A-0227-16T3 project was located in Millburn. Plaintiffs objected to RCC's

application arguing before the Board that RCC failed to obtain

review and approval from neighboring Springfield. Plaintiffs

maintained that RCC's project had to be approved by Springfield

in addition to any approvals granted by the Board.

The Board granted RCC's application on September 2, 2015. A

memorializing resolution was adopted on October 21, 2015. The

Board declined to consider RCC's application as it related to

Springfield's ordinances, but considered the proposed

development's impact on the neighborhoods in adjacent Springfield.

The Board's resolution approved RCC's application conditioned

on the following:

1. The Applicant shall comply with all applicable municipal ordinances and regulations, as well as all County, State and Federal Laws applicable to this development application.

2. The foregoing is subject to review of, approval by, and requirements imposed by such other Federal, State, County, and local bodies that shall have jurisdiction over the development.

Plaintiffs filed an action in lieu of prerogative writs

seeking to reverse the Board's resolution. On June 29 and August

22, 2016, Judge Vicki A. Citrino issued orders, with accompanying

written decisions, dismissing plaintiffs' complaint.

3 A-0227-16T3 On appeal, plaintiffs present the following arguments:2

POINT ONE

THE TRIAL COURT ERRED IN NOT FINDING THE BOARD WAS REQUIRED TO MAKE ZONING APPROVAL BY THE TOWNSHIP OF SPRINGFIELD AS A CONDITION/REQUIREMENT OF ITS APPROVAL PURSUANT TO N.J.S.A. 40:55D-22(b) ESPECIALLY WHERE 60% OF THE PARKING FOR THE PROJECT IS LOCATED IN SPRINGFIELD AND THE USE PROPOSED IS NOT PERMITTED IN SPRINGFIELD.

POINT TWO

THE PLANNING BOARD FAILED TO PROPERLY HEAR AND CONSIDER THE SPRINGFIELD ZONING LIMITATIONS THAT EFFECT [SIC] AND GOVERN A SIGNIFICANT PORTION OF THE DEVELOPMENT SITE.

POINT THREE

IN THE ALTERNATIVE, THE TRIAL COURT SHOULD HAVE DIRECTED THE DEFENDANT APPLICANT TO PROCEED WITH AN APPROPRIATE ZONING APPLICATION IN SPRINGFIELD, AND STAY THIS SUIT AND ANY OPENING/USE OF THE RESTAURANT/BAR UNTIL SPRINGFIELD MAKES ITS DETERMINATION ON THE PROPOSED DEVELOPMENT/USE.

Plaintiffs presented these arguments to Judge Citrino who

considered and rejected them in thorough and well-written

decisions dated June 29, 2016 and August 22, 2016. After reviewing

2 On appeal, plaintiffs rely on facts that were not presented to the trial court. Our scope of review is limited to whether the trial court's decision is supported by the record presented at the time of trial. R. 2:5-4; see also Middle Dep't Inspection Agency v. Home Ins. Co., 154 N.J. Super. 49, 56 (App. Div. 1977) (refusing to consider evidence improperly submitted at the appellate level), certif. denied, 76 N.J. 234 (1978).

4 A-0227-16T3 the record, including the hearing transcripts and exhibits, we

affirm for the reasons stated by Judge Citrino. We add only the

following comments.

The Board's resolution was sufficient, and its credibility

determinations are worthy of our deference. See Klug v.

Bridgewater Twp. Planning Bd., 407 N.J. Super. 1, 12-13 (App. Div.

2009). There is substantial credible evidence to support the

Board's findings, and the decision to grant the application was

not arbitrary or capricious. Id. at 13-14; see also Kramer v. Bd.

of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965).

While a local planning board should consider the impact of a

development application upon a neighboring municipality, the local

board need not abdicate its own zoning ordinances and master plan.

See Ferraro v. Zoning Bd. of Adjustment, 119 N.J. 61, 72-74 (1990).

In the memorializing resolution approving RCC's application,

Millburn expressly considered the proposed development's impact

on neighboring Springfield. Millburn has no obligation to impose

Springfield's zoning ordinances and master plan within its own

municipal border, and plaintiffs cite no legal authority imposing

such an obligation on a municipality. Plaintiffs never claimed

there was insufficient support in the record for the Board's

approval of RCC's application in Millburn. That RCC may ultimately

5 A-0227-16T3 need approval from Springfield does not render the Board's decision

arbitrary, unreasonable or capricious.

Affirmed.

6 A-0227-16T3