NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3383-19 A-0573-20
TOWNSHIP OF DEPTFORD, a municipal corporation of the State of New Jersey,
Plaintiff-Respondent,
v.
DEPTFORD COMMONS, LLC, and MALACHITE GROUP, LTD.,
Defendants-Appellants,
and
AMAZON.COM SERVICES, INC.,1
Defendant. _____________________________
1 The record at times refers to this party, which has not participated in the appeal, as "Amazon." Plaintiffs-Appellants,
TOWNSHIP OF DEPTFORD ZONING BOARD OF ADJUSTMENT,
Defendant-Respondent. _____________________________
Argued September 13, 2021 – Decided September 28, 2021
Before Judges Sabatino, Mayer, and Natali.
On appeal from the Superior Court of New Jersey, Chancery Division, Gloucester County, Docket Nos. C-000019-19 and L-0410-20.
John G. DeSimone argued the cause for appellants Deptford Commons, LLC, and Malachite Group, Ltd. (DeSimone Law Offices, LLC, attorneys; John G. DeSimone, on the briefs).
Alysia J. Remaley argued the cause for respondent Township of Deptford (Grace, Marmero & Associates, attorneys; John A. Carleton, on the brief).
James W. Burns argued the cause for respondent Township of Deptford Zoning Board of Adjustment (Dembo, Brown & Burns, LLP, attorneys; James W. Burns, of counsel and on the brief).
PER CURIAM
A-3383-19 2 These two appeals 2 are filed by the owner and property manager of a
parcel in Deptford Township. The cases arise from the denial of a land use
variance application to allow Amazon, a tenant, to use 300 spaces of the site's
retail shopping parking lot to park delivery trucks and employee vehicles. For
the reasons that follow, we affirm in both appeals.
I.
Appellant Deptford Commons, LLC ("DC" or the "Owner") owns real
property located at 1800 Clements Bridge Road, designated as Block 1.04, Lot
8 (the "Property"), in the Township of Deptford in Gloucester County. Co-
appellant Malachite Group, Ltd. ("Malachite" or the "Property Manager") is the
property management company for DC. The Property consists of a retail
shopping center and an accompanying uncovered parking lot with approximately
1,000 spaces.
The Property is located within the zoning district "Business Center 2"
("BC-2") as defined in the Township's Unified Development Ordinance
("UDO"). According to the UDO, the purpose of the BC-2 zone is to "provide
an area for various types of non-residential development with moderate levels
2 We consolidate the appeals, which were argued together, for purposes of issuing this single opinion. A-3383-19 3 of development intensity." Deptford Township UDO § 17.1 Business Center
2—BC2. The following uses are permitted in a BC-2 zone: movie theaters,
performing arts facilities, sports venues; hotels, motels, and inns; car service
stations; shopping centers; garden centers; department stores; and discount
stores or clubs not to exceed 100,000 square feet.
Notably for the present appeals, the permitted accessory uses in BC-2
include: "a. Off-street parking lots and structures"; and "b. Garages to house
delivery trucks and other commercial vehicles (unenclosed storage of trucks and
trailers is not permitted)" (emphasis added). By comparison, only the more
restrictive BC-1 zone, which applies to "more intensive development adjacent
to a major highway interchange[,]" permits "[w]arehouse, storage, packing and
crating, and distribution facilities, wholesale sales."
In October 2018, DC entered into a leasing agreement with Amazon.com
Services, Inc. ("Amazon") conveying to Amazon the right to use the parking lot
at the Property to park a number of its employee and delivery vehicles. The
lease was for a two-year term commencing on November 1, 2018. The lease
contained a clause providing that "Amazon may terminate [the agreement] if any
governmental authority requires Amazon to vacate or abandon the Parking
Area."
A-3383-19 4 Neither DC, Malachite, nor Amazon sought permits or use variances from
the Township before executing the lease agreement. It is undisputed that
Amazon's occupation of the leased Property constituted a violation of the
Township's UDO, which, as we noted above, disallows non-enclosed parking of
trucks and delivery vehicles in the BC-2 zone.
Upon learning of Amazon's non-permitted use of the site for parking, the
Township initially issued to DC and Malachite violation notices and orders to
pay on January 18, 2019, and again on March 5, 2019, stating they were in
violation of the Township's UDO. Despite that, DC and Malachite did not
correct the violations. Consequently, on April 11, 2019, the Township filed a
verified complaint and order to show cause in the Chancery Division under
Docket No. GLO-C-19-19 (the "Chancery case"). The complaint sought in part
to enjoin DC, Malachite, and Amazon from continuing the non-conforming use
of the Property without obtaining the required permits and use variances.
While the Chancery case was pending, Amazon filed a zoning permit
application on June 12, 2019 with the Township's Zoning Board of Adjustment
(the "Board"). In the permit application, Amazon sought the Board's approval
of the "use of 300 existing parking spaces . . . for parking of delivery vans and
personal vehicles of drivers." The application represented that Amazon's
A-3383-19 5 "drivers arrive and park personal vehicle[s]; pick up delivery van[s] and head to
[a] nearby fulfillment facility and then delivery route; return at end of shift to
drop off delivery van[s] in parking spot[s] and leave in personal vehicle[s]."
The Board denied the requested permit on June 18, 2019.
DC and Amazon then entered into a zoning application agreement on July
2, 2019, in which DC agreed to bear the costs of bringing a use variance
application before the Board. Paragraph C.4 of that agreement stated: "In the
event that the Application or any required permit or approval is denied by the
governmental body or agency, the decision to appeal said action shall require
the consent of both the Owner [DC] and Applicant [Amazon]." (Emphasis
added).
Amazon thereafter submitted a use variance application to the Board on
September 26, 2019. The application included a traffic and parking evaluation
prepared by Langan Engineering. Two use variances were requested. The first
use variance sought approval "for an accessory delivery van and vehicle parking
use not tied to a principal use on site." The second use variance sought
permission to park "Amazon delivery vans and vehicles as a second principal
use on site."
A-3383-19 6 The Board heard Amazon's variance application at a public meeting held
on February 4, 2020. At that Board hearing, Amazon's attorney opened the
proceedings with an overview of the proposed application. Amazon then
presented testimony from three witnesses: Raymond Wamm, Lead Order
Delivery Manager for the Amazon Warehouse and Distribution Center in the
nearby Township of Bellmawr; Daniel DiSario, a licensed traffic engineer and
P.E. of Langan Engineering; and John McDonough, a professional planner.
Responsive commentary was presented by the Board's traffic engineer, Joseph
Raday; the Board's planner, Brian Slaugh; the Board's engineer, Jim
Winckowski; and the Board's solicitor, James Burns. No public comment about
the variance application was voiced by anyone in attendance.
At the conclusion of the meeting, the Board voted 8-1 to deny Amazon's
application. The Board's corresponding nine-page Resolution (#15-2020)
memorializing the denial was published on March 11, 2020.
The Resolution summarized the testimony of Amazon's witnesses and the
commentary of the Board's experts. The Resolution also cited to written reports
submitted by both Amazon and the Board's experts.
In denying Amazon's application, the Resolution concluded Amazon had
not met its burden in establishing both the positive and negative criteria
A-3383-19 7 necessary for granting a use variance under N.J.S.A. 40:55D-70(d). Among
other things, the Board found the parking use was not tied to or connected to
other buildings or other uses on site; the proposed use solely benefitted Amazon;
there was no benefit to the public good with the proposed use; the proposed use
was more suitable in an industrial area; and the proposed use was not consistent
with the Township's master plan and zoning ordinances.
After the Board hearing but before the publication of the Resolution, the
Chancery Division Judge held two case management conferences with counsel
for DC, Malachite, Amazon, and the Township. 3 At the second case
management conference on February 14, 2020, Amazon's counsel advised the
court it did "not wish to appeal" the Board's decision, and was "making
arrangements to vacate the [Property]." Counsel for Amazon and the Township
then discussed with the court the time frame Amazon would be given to vacate
the premises. The Chancery Judge specifically asked counsel for DC and
Malachite on the record whether he had "anything [he] wanted to add" to this
discussion. DC and Malachite's counsel responded: "On the vacation from the
premises? No, Your Honor."
3 DC and Malachite thereafter retained new counsel for Chancery case and the present appeals. A-3383-19 8 At the end of the February 14 conference, the Chancery Judge orally
directed Amazon to vacate the Property within forty-five days. DC and
Malachite's counsel did not voice any objection to that directive, and did not
request a stay of its implementation. The Chancery Judge consequently issued
a written order the same day, mandating that Amazon vacate the premises within
forty-five days, i.e., by March 30, 2020.
The March 30 deadline to vacate the premises was shorter than the time
frame in which either Amazon or DC and Malachite could bring an action in lieu
of prerogative writs in the Superior Court under Rule 4:69-6(b)(3) challenging
the Board's variance denial. The Rule specifies that an applicant contesting a
determination of a planning board or board of adjustment must commence an
action in lieu of prerogative writs no later than forty-five days "from the
publication of the notice or the mailing of the notice to the applicant, whichever
is later." Rule 4:69-6(b)(3). With the publication of the Resolution occurring
on March 11, 2020, the Rule's deadline to bring such a challenge thus fell on
April 25, 2020, about twenty-six days after the Chancery Judge's move-out date.
Amazon did, in fact, vacate the Property by March 30, 2020, in
compliance with the Chancery Judge's order.
A-3383-19 9 Meanwhile, on March 20, 2020, ten days before the Chancery Judge's
deadline to vacate the premises, DC and Malachite filed a verified complaint in
lieu of prerogative writs in the Law Division under Docket No. L-0410-20,
challenging the Board's denial of Amazon's variance application (the "Law
Division case").
Thereafter, on May 1, 2020, DC and Malachite filed a notice of appeal (A-
3383-19) in the Chancery case, seeking to vacate the February 14, 2020 move-
out order, alleging a violation of their due process rights. In response, the
Township filed a civil case information statement with this court, asserting the
appeal is moot, because "Amazon [had] stated they would not appeal the Zoning
Board's ruling" and also because "Amazon vacated the property approximately
two months ago."
While the appeal in the Chancery case was pending, the Law Division case
was argued before the vicinage Assignment Judge on September 10, 2020.
Counsel for DC and Malachite represented to the court that Amazon had
expressed a desire to return to the Property if the Board's denial were reversed.
They argued the Board's denial of Amazon's application was arbitrary and
capricious. They contended the Board failed to consider sufficiently the
underutilized condition of the strip mall--even before the occurrence of the
A-3383-19 10 COVID-19 public health crisis. They also criticized the Board for disregarding
the claimed practical benefit that Amazon delivery vehicles would provide for
the community and all surrounding strip malls. The Board countered that the
variance denial was appropriate under the criteria of the statute, and well
supported by the record.
After considering these arguments, the Assignment Judge on September
10, 2020 issued an oral opinion in the Law Division case upholding the Board's
denial. A corresponding written order implementing that decision was issued a
week later, on September 17, 2020.
In prefacing his analysis, the Assignment Judge observed there were two
issues presented before him: "One is whether [DC and Malachite's] suit is moot
since Amazon vacated the property after its variance request was denied; and,
second, was whether or not the Board acted arbitrary and capriciously or
unreasonably in denying the land use variances."
As to the first issue, the Assignment Judge ruled the Law Division case
was not moot, since DC and Malachite had represented that Amazon may return
to the Property upon a ruling in their favor.
As to the second issue, the judge noted he was obligated to give
considerable deference to the Board's decision. The judge found "substantial
A-3383-19 11 evidence in the record for the Zoning Board to draw the conclusion it drew." In
particular, such evidence included the presentations of the Board's experts and
Amazon's witnesses at the Board hearing, as well as their written reports. The
judge also considered the transcript from the Board hearing, noting it reflected
"a substantial amount of opportunity to express and challenge perspectives
presented in both sides of the dispute."
After an accompanying written order was issued in the Law Division case
on September 17, 2020, DC and Malachite appealed that ruling (A-0573-20).
Amazon has not participated in either appeal.
II.
Appellants DC and Malachite essentially make two arguments on appeal.
First, in the Chancery case, they assert the judge denied them due process by
prematurely ordering Amazon to vacate the premises before the time would
elapse under Rule 4:69-6(b)(3) to pursue an appeal of the Board's use variance
denial. Second, in the Law Division case, appellants contend that judge
misapplied the municipal land use laws, N.J.S.A. 40:55D-1 to -163 (the
"MLUL") and applicable case law by upholding the Board's denial of the use
variance application.
A-3383-19 12 Our scope of review of the judicial rulings in both cases is de novo,
because appellants contend each of the trial judges made reversible errors of
law. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995). Having undertaken such independent appellate review of the legal
issues, we affirm the rulings in both cases. We discuss each case in turn.
A.
In the Chancery case (A-3383-19), we discern no deprivation of
appellants' due process rights resulting from the judge's imposition of a forty-
five-day deadline for Amazon to remove its delivery vehicles illegally parked
on appellants' lot. The deadline was specified after counsel for Amazon, which
had pursued the use variance, expressly advised the court on the record that it
did not wish to appeal the Board's denial of its application, and, in fact, had
already begun to vacate the premises. Moreover, the judge specifically asked
the attorney who was then representing DC and Malachite if his clients had
anything to add on that subject, and he said no. Under the circumstances, any
alleged error in fixing the deadline date was invited. See State v. Corsaro, 107
N.J. 339, 345 (1987) (observing that trial court errors that were "induced,
encouraged or acquiesced in or consented to" by counsel "ordinarily are not a
A-3383-19 13 basis for reversal on appeal[]") (quoting State v. Harper, 128 N.J. Super. 270,
277 (App. Div. 1974)).
Further, as appellants' present counsel has forthrightly acknowledged, DC
and Malachite did not request the Chancery Judge to stay the move-out order
pursuant to Rule 2:9-5, pending an action in lieu of prerogative writs appealing
the Board's denial. Nor did DC and Malachite seek emergent relief from this
court.
There was patently no denial of due process here. See In re Request to
Modify Prison Sentences, 242 N.J. 357, 369 (2020) (noting that due process
minimally requires "notice and an opportunity to be heard[]"). Appellants,
through their counsel, had notice and an ample opportunity to be heard when the
Chancery Judge set the deadline with the consent of Amazon and the Township,
and voiced no opposition. Appellants also failed to avail themselves of the
avenues to pursue an emergent stay. They did not exhaust their potential
remedies to postpone the deadline.
The Chancery Judge did not act arbitrarily in establishing a forty-five-day
period for Amazon to complete its already-underway efforts to remove its
delivery vehicles from the parking lot. The deadline was a reasonable measure
to assure an orderly departure. It did not deprive either the owner or the tenant
A-3383-19 14 of a chance to pursue judicial review of the Board's variance denial in the Law
Division pursuant to Rule 4:69-6(b)(3). In fact, DC and Malachite did so, albeit
without prevailing on the merits.
Nothing prevented Amazon from resuming its use of the premises if the
variance denial had been reversed. Indeed, as represented to us by appellate
counsel, Amazon is interested in returning to the site if this court overturns the
Law Division decision. 4
For these abundant reasons, we affirm the Chancery Judge's decision in
A-3383-19.
B.
The Law Division appeal (A-573-20) warrants a somewhat longer
discussion, but likewise is unavailing. We begin with a recognition of some
well-established principles regarding use variance applications under the MLUL
and judicial review of those variance decisions by land use boards.
Generally, judicial review of a decision of a municipal planning board or
board of adjustment is highly deferential. "[T]he law presumes that boards of
adjustment and municipal governing bodies will act fairly and with proper
4 In light of that representation, we decline respondents' request that we dismiss these appeals as moot. A-3383-19 15 motives and for valid reasons … [and] will be set aside only when it is arbitrary,
capricious or unreasonable." Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J.
268, 296 (1965); see also Price v. Himeji, LLC, 214 N.J. 263, 284 (2013)
(reiterating the judiciary's limited standard of review of zoning board decisions).
The challenger has the burden of proving the land use decision is arbitrary and
capricious, or unreasonable. See Dunbar Homes, Inc. v. Zoning Bd. of
Adjustment of Twp. of Franklin, 233 N.J. 546, 558 (2018).
A reviewing court may not substitute its judgment "for the proper exercise
of the Board's discretion." CBS Outdoor v. Borough of Lebanon Plan. Bd., 414
N.J. Super. 563, 578 (App. Div. 2010). Moreover, "deference accorded to a
board's denial of a variance is greater than that given to its decision t o grant a
variance." Ibid. That said, a municipal board's interpretation of the law is
reviewed de novo and is not entitled to deference. See Dunbar Homes, 233 N.J.
at 559.
The applicable law governing land use variances is codified within the
MLUL at N.J.S.A. 40:55D-70(d), commonly referred to as a "subsection d" use
variance. In pertinent part, subsection d provides as follows:
The board of adjustment shall have the power to:
....
A-3383-19 16 d. In particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of this act to permit: (1) a use or principal structure in a district restricted against such use or principal structure, (2) an expansion of a nonconforming use, (3) deviation from a specification or standard . . . (4) an increase in the permitted floor area ratio . . . (5) an increase in the permitted density
No variance or other relief may be granted under the terms of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.
[N.J.S.A. 40:55D-70(d) (emphasis added).]
The grant of a use variance pursuant to this section requires proof of both
"positive and negative criteria." Sica v. Bd. of Adjustment of Twp. of Wall, 127
N.J. 152, 156 (1992).
For instances, as in this case, in which the asserted use is not inherently
beneficial to the public good (such as a school or a hospital), the applicant's
proof of "positive criteria" requires a showing that special reasons exist to grant
the use variance. See Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 386 (1990)
(interpreting N.J.S.A. 40:55D-70(d)). These "special reasons" are defined by
the general purposes of the zoning laws, as codified in N.J.S.A. 40:55D-2. Ibid.
A-3383-19 17 (quoting Kohl v. Mayor & Council of Fair Lawn, 50 N.J. 268, 279 (1967)). They
include, among other things, the promotion of health and safety, and the creation
of a desirable visual environment. See Burbridge, 117 N.J. at 386.
The asserted positive criteria must be site-specific, in that the applicant
must show that the proposed use is "peculiarly fitted to the particular location
for which the variance is sought." Kohl, 50 N.J. at 279 (emphasis added). In
the decades since Kohl was decided, that requirement has not changed. See
Medici v. BPR Co., 107 N.J. 1, 18 (1987).
Meanwhile, the "negative criteria" requirement of subsection d
incorporates two distinct, but related, forms of proof. First, an applicant must
show that the non-conforming use of the property will not cause "substantial
detriment to the public good." N.J.S.A. 40:55D-70(d). The focus of this
criterion is also site-specific, and requires an assessment of the proposed
variance's impact on the surrounding properties, and whether it will cause
"damage to the character of the neighborhood." Medici, 107 N.J. at 22 n.12.
A second demonstration required under the negative prong of subsection
d is a showing that the proposed non-conforming use "will not substantially
impair the intent and the purpose of the zone plan and zoning ordinance."
N.J.S.A. 40:55D-70(d). The substantial burdens involved in making this
A-3383-19 18 showing were illuminated by the Supreme Court in Medici. Specifically, since
Medici, applicants seeking a use variance must offer "an enhanced quality of
proof . . . that the variance sought is not inconsistent with the intent and purpose
of the master plan and zoning ordinance." Medici, 107 N.J. at 21. Such
"enhanced proof" must "reconcile the proposed use variance with the zoning
ordinance's omission of the use from those permitted in the zoning dist rict."
Ibid.
Here, as the Assignment Judge correctly recognized, the Resolution
identified ample grounds for the Board to conclude that the positive and negative
criteria had not been established to justify the requested use variances. It is
undisputed that unenclosed parking of trucks and other delivery vehicles , other
than for accessory uses, is prohibited in the BC-2 zone. The parking of
Amazon's vehicles on the site, on which it has no buildings or offices, is clearly
a non-accessory use. With its special knowledge of local conditions, the Board
was justifiably concerned that the arrival, departure, and parking of Amazon
trucks and vans in "waves" throughout the day could have a detrimental impact
upon the patrons and employees of the retail stores in the shopping center. The
Board sensibly took into account the applicant's "delivery truck size, parking
A-3383-19 19 space size and the potential impact on drive aisles and on the existing retail
center uses."
The Board fairly weighed the testimony and the other evidence presented,
including particularly the traffic data and the existence of alternative,
industrially suited sites nearby where such parking is not prohibited. Based
upon its careful review as detailed in the Resolution, the Board reasonably
concluded the applicant had not satisfied the heavy burden required for a use
variance under subsection d and Medici.
We are mindful of appellants' assertion that the retail shopping center is
presently underutilized. Paragraph 4 of the Resolution expressly recognized
that, according to the Board's engineer, there was currently a 36% vacancy rate
in the commercial space on the site.5 Appellants argue that the ongoing impact
of the COVID-19 pandemic since March 2020 has further diminished the general
usage of brick-and-mortar retail stores, and has vastly increased online shopping
of goods delivered by companies such as Amazon. However, we must confine
our review to the record developed below and not speculate about facts that have
yet to be adduced, post-pandemic. Nothing in the trial court's decisions, or in
5 Appellants' brief appears to be mistaken in asserting a much higher vacancy rate of 70%. But even if that higher percentage is accurate, we are still persuaded the Board's denial was neither arbitrary nor capricious. A-3383-19 20 this opinion, precludes a new application to the Board based upon a showing of
changed circumstances or a material modification of the earlier proposal. See
Allied Realty, Ltd. v. Borough of Upper Saddle River, 221 N.J. Super. 407, 414
(App. Div. 1987).
Affirmed.
A-3383-19 21