NOT FOR PUBLICATION WITHOUT THE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-5100-14T4
JAMES HUGHES,
Plaintiff-Appellant,
v.
TOWN OF WESTFIELD PLANNING
BOARD and THE STOP AND SHOP
SUPERMARKET COMPANY, LLC,
A Delaware Limited Liability
Company,
Defendants-Respondents.
Argued May 16, 2017 – Decided June 30, 2017
Before Judges Reisner, Koblitz and Mayer.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Docket No.
L-0785-14.
Ronald S. Gasiorowski argued the cause for
appellant (Gasiorowski & Holobinko,
attorneys; Mr. Gasiorowski, on the briefs).
Howard D. Geneslaw argued the cause for
respondent The Stop & Shop Supermarket Company
LLC (Gibbons P.C., attorneys; Mr. Geneslaw,
of counsel; Mr. Geneslaw and Jennifer Phillips
Smith, on the brief).
Russell M. Finestein argued the cause for
respondent Town of Westfield Planning Board
(Finestein & Malloy LLC, attorneys; Michael
D. Malloy, of counsel; Mr. Malloy and Corrine
Tighe, on the brief).
PER CURIAM
Plaintiff James Hughes appeals from a June 9, 2015 order,
corrected and amended on July 21, 2015, dismissing his complaint
in lieu of prerogative writs against defendants Town of Westfield
Planning Board (Board) and Stop & Shop Supermarket Company, L.L.C.
(Stop & Shop).
The appeal concerns the Board's approval of Stop & Shop's
land use application in connection with a planned renovation and
expansion of an existing supermarket in Westfield.1 Hughes is
admittedly acting as a strawman for a commercial competitor,
Village Supermarkets, Inc., which operates a supermarket in nearby
Garwood and which is funding this litigation. Both sides presented
expert witnesses before the Board, and more than a dozen members
of the public presented comments in support of the application.
After fourteen days of hearings, the Board approved the application
1
The supermarket was a permitted use, but the expansion plans
required variances with respect to signage, parking, setbacks, and
other issues. Due to the topography of neighboring properties,
which sloped upward, several residential buildings were
considerably higher in elevation than the supermarket. As a
result, the applicant also sought a variance to build a twenty-
foot sound wall to protect its neighbors against noise from the
expanded supermarket.
2 A-5100-14T4
in a seventy-six page Amended and Restated Resolution.
Significantly, on the issues of planning, parking and noise, the
Board credited the applicant's expert witnesses instead of
plaintiff's experts.
On this appeal, plaintiff presents the following points of
argument:
POINT ONE
THE TRIAL COURT ERRED IN NOT FINDING THAT
THE APPLICANT ERRONEOUSLY CALCULATED THE
PARKING SPACE DEFICIENCY AND THE BOARD
IMPROPERLY ACCEPTED AND APPROVED THE
PROJECT WITH THE MISREPRESENTED PARKING
DEFICIENCY.
POINT TWO
THE BOARD'S FAILURE TO REQUIRE COMPLIANCE
WITH THE STATE NOISE CODE AND WESTFIELD
NOISE REGULATIONS AS TO ADJACENT
PROPERTIES, PARTICULARLY THE ADJACENT
COMMERCIAL OFFICE SITE WARRANTS
REVERSAL.
POINT THREE
THE APPROVAL OF THIS SUPERMARKET
EXPANSION --- REQUIRING SUBSTANTIAL
VARIANCES FOR DEFICIENT PARKING, A 20'
HIGH WALL WITHOUT SETBACKS, AND UNSAFE
TRUCK/PEDESTRIAN ACCESS --- IMPROPERLY
ALLOWS THE OVERUTILIZATION OF A
DEFICIENTLY SIZED SITE, AND IS ARBITRARY,
CAPRICIOUS AND UNREASONABLE.
1. The Resolution is not adequate
as a matter of law.
2. There was insufficient evidence
3 A-5100-14T4
in the record to support the
requested relief.
Plaintiff previously presented those contentions to
Assignment Judge Karen M. Cassidy, who discussed them at length
and rejected them in a thorough written statement of reasons issued
on June 9, 2015. After reviewing the entire record, including the
transcripts of the Board hearings, we affirm for the reasons stated
by Judge Cassidy. We add only the following comments.
Based on our review of the record, the Board's Amended and
Restated Resolution was sufficient, and its credibility
determinations are worthy of our usual deference. See Klug v.
Bridgewater Twp. Planning Bd., 407 N.J. Super. 1, 13 (App. Div.
2009). There is substantial credible evidence to support the
Board's findings, and its decision to grant the application was
not arbitrary or capricious. See Kramer v. Bor. of Sea Girt Bd.
of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965); Klug, supra, 407
N.J. Super. at 13-14. Plaintiff's appellate arguments are largely
based on his experts' opinions, which the Board did not find
persuasive.
Affirmed.
4 A-5100-14T4