Anthony Dimauro v. Monroe Township Planning Board

NOT FOR PUBLICATION WITHOUT THE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-0619-22

ANTHONY DIMAURO,

Plaintiff-Appellant,

v.

MONROE TOWNSHIP
PLANNING BOARD and
LIDL U.S. OPERATIONS,
LLC,

Defendants-Respondents.
___________________________

Argued December 5, 2023 – Decided February 14, 2024

Before Judges Haas and Puglisi.

On appeal from the Superior Court of New Jersey, Law
Division, Gloucester County, Docket No. L-0673-21.

Jeffrey M. Brennan argued the cause for appellant
(Baron & Brennan, PA, attorneys; Jeffrey M. Brennan,
on the briefs).

Marla Marie DeMarcantonio argued the cause for
respondent Monroe Township Planning Board
(Holston, MacDonald, Uzdavinis, Myles &
 DeMarcantonio, PC, attorneys; Marla Marie
DeMarcantonio, on the brief).

Kristopher J. Berr argued the cause for respondent Lidl
US Operations, LLC (Del Duca Lewis & Berr, LLC,
attorneys; Damien Octavius Del Duca and Kristopher J.
Berr, on the brief).

PER CURIAM

Plaintiff Anthony DiMauro appeals from the Law Division's October 3,

2022 order that dismissed with prejudice his amended complaint in lieu of

prerogative writs and affirmed defendant Monroe Township Planning Board's

("Board") decision approving defendant Lidl US Operations, LLC's ("Lidl")

application to develop a grocery store. We affirm.

On January 4, 2021, Lidl submitted an application to the Board for

approval to develop a grocery store at the corner of Route 42 and East Lake

Avenue in Monroe Township, known as Block 1101, Lot 11.01. The lot is

owned by Monroe Lake, LLC and is situated in Monroe Township's C-

Commercial Zoning District, which allows building and operation of a grocery

store. Lidl's application sought preliminary and final major site plan approval

to construct a grocery store with a parking lot, lighting, landscaping, and internal

driver aisles; and to modify two existing stormwater basins. The application

also sought minor subdivision approval to subdivide into two lots, allowing for

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a division between the grocery store and an existing bank adjacent to the

property. Lidl also sought bulk variances and design waivers from the

requirements of Monroe Township's Comprehensive Land Management

Ordinance ("LMO").

Plaintiff, who resides in Monroe Township and owns property near the

lot, formally objected to the application.

On February 9, 2021, the Board's engineer, Kevin L. Snowden, issued two

separate review letters addressing the site plan application's completeness and

technical compliance. The engineer wrote: "These submittals have been

reviewed for compliance with the submission requirements of the Monroe

Township Land Management Ordinance. Upon review of the requirements set

forth in the below mentioned sections of the ordinance, we recommend this

application can be considered incomplete."

On February 22, 2021, Township Council of the Township of Monroe

("Council") adopted Ordinance O:03-2021, which replaced in its entirety the

then existing LMO Section 175-140, titled "Stormwater Management."

Ordinance O:03-2021 implemented new stormwater management rules

promulgated by the New Jersey Department of Environmental Protection

(NJDEP). The ordinance explained it was to "take effect twenty (20) days after

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final passage and publication as required by law." However, the ordinance never

became effective.

NJDEP regulations require that before any municipal stormwater control

ordinance can take legal effect, the municipality "shall submit the adopted

municipal stormwater management plan and ordinance(s) to the county review

agency for approval. The adopted municipal stormwater management plan and

ordinance(s) shall not take effect without approval by the county review

agency." N.J.A.C. 7:8-4.3(b). Accordingly, on March 25, 2021, the Gloucester

County Planning Board reviewed a copy of ordinance O:03-2021 and

determined it was "not . . . in compliance with the State stormwater regulations."

The Gloucester County Planning Board disapproved the ordinance and

recommended Monroe Township amend and resubmit it for review. Because it

was not approved by the Gloucester County Planning Board, Ordinance O:03-

2021 never became effective and was repealed by the Council on November 22,

2021.

On March 25, 2021, the Board considered Lidl's application. Lidl did not

submit revised plans or documents addressing ordinance O:03-2021. The Board

deemed Lidl's application complete at the time it was submitted on January 4,

2021, unanimously approved the request to construct the grocery store and

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subdivision, and also approved the bulk variances and design waivers. On April

22, 2021, the Board memorialized its approval in two resolutions, PB-18-2021

"A Resolution of the Planning Board of the Township of Monroe Memorializing

a Minor Subdivision Approval for Lidl US Operations LLC, Block 1101, Lot

11.01" and PB-19-2021 "A Resolution of the Planning Board of the Township

of Monroe Memorializing a Preliminary & Final Site Plan Approval."

In PB-18-2021, the Board concluded the proposed minor subdivision

complied with all minor subdivision requirements and other standard

specifications and requirements established by the Municipal Land Use Law

("MLUL"), N.J.S.A. 40:55D-70(d)(1). It also found the lot was suitable for the

proposed application and the Lidl store would not have a deleterious effect on

the neighborhood. In PB-19-2021, the Board concluded the major site plan

complied with all major site plan requirements and other standards,

specifications, and requirements established by the MLUL. It also found the lot

was suitable for the proposed application and Lidl sustained its burden of

proving the requested variances and waivers were justified and appropriate.

On June 11, 2021, plaintiff filed an action in lieu of prerogative writs

challenging the approvals, contending the Board's actions were arbitrary,

capricious, unreasonable and contrary to law. Lidl and the Board each filed

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answers and separate defenses. During a case management conference on

October 15, 2021, Lidl voluntarily sought a re-hearing to cure an alleged

deficiency in the Board's virtual meeting procedures. The re-hearing was

scheduled for January 13, 2022.

In the interim, on November 22, 2021, the Council adopted ordinances

O:24-2021 and O:25-2021, which implemented the new stormwater rules

promulgated by NJDEP. Again, as required by NJDEP regulations, Monroe

Township submitted the ordinances to the Gloucester County Planning Board

"to review and approve, conditionally approve . . . or disapprove the adopted

municipal stormwater management plan and ordinance(s) within 60 calendar

days of receipt of the plan and ordinance(s)." N.J.A.C. 7:8-4.4(c). If the

Gloucester County Planning Board failed to "approve, conditionally approve , or

disapprove the plan or ordinance(s) within 60 calendar days, the plan and

ordinance(s) [would] be deemed approved." Ibid. The Gloucester County

Planning Board did not issue a written response to the ordinances within sixty

days and as a result, they were deemed approved and became effective on

January 29, 2022.

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 On January 13, 2022, Lidl reintroduced the application and proposed

development to the Board. Regarding site plan submissions, the Board deferred

to Snowden, who explained:

We have a letter dated February 9[], 2021. In it, we
address some items that are open. But most of the items
are small and don't have any real impact. The biggest
one was the topo being not extended 200 feet beyond
the property lines. I believe that's been waived before
by the [B]oard. And all other items I think they can
address in the future. And at this time, we recommend
that the application be complete.

After hearing from both sides' witnesses, the Board unanimously approved

the minor subdivision and approved the preliminary and final major site with

bulk variances and waivers. The Board memorialized the approval of the minor

subdivision in Resolution No. PB-18-2021 and approved the major site plan

variances and waivers in Resolution No. PB-19-2021.

On March 9, 2022, plaintiff filed a first amended complaint in lieu of

prerogative writs challenging the second series of approvals granted by the

Board. Lidl and the Board each filed answers and separate defenses.

On October 3, 2022, the parties appeared before Assignment Judge

Benjamin C. Telsey for trial. The court reviewed all evidence and testimony

presented to the Board during the previous hearings. At trial, plaintiff relied

heavily on CBS Outdoor, Inc. v. Borough of Lebanon Plan. Bd., 414 N.J. Super.

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563 (App. Div. 2010) to support his contentions the Board purposely delayed

the implementation of the ordinance. Judge Telsey considered the application

of CBS Outdoor to this case and explained:

I don't find . . . CBS to be applicable in this matter . . .
There's, first of all, the underlying argument that there
would have to be some delay on behalf of the
Township, and I find that there was no . . . delay that
would trigger even the analysis under the CBS case . . .
And for those reasons I don't find that argument . . . to
be compelling.

The trial court affirmed the determination of the Board, finding it "acted

appropriately within [its] power and followed all the necessary procedural steps

in order to conclude the hearing and re-hearing on the matter while considering

all potentially relevant ordinances and information." The court further found

there was "sufficient information as referenced throughout this decision that was

before the Board" and that the Board "acted appropriately within [its] power and

followed all the necessary procedural steps in order to conclude the hearing and

re-hearing on the matter while considering all potentially relevant ordinances

and information." The trial court also determined Lidl satisfied the factors

necessary to seek bulk variances. Thus, the court dismissed plaintiff's complaint

and affirmed the Board's approval of Lidl's application in its entirety. This

appeal follows.

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 "[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., L.L.C. v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562

(App. Div. 2004). Thus, our review of the Board's action is limited. See

Bressman v. Gash, 131 N.J. 517, 529 (1993) (holding that appellate courts are

bound by the same scope of review as the Law Division and should defer to the

local land-use agency's broad discretion).

It is well-established "that a decision of a zoning board may be set aside

only when it is 'arbitrary, capricious or unreasonable.'" Cell S. of N.J. v. Zoning

Bd. of Adjustment, 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J.

1, 15 (1987)). "[P]ublic bodies, because of their peculiar knowledge of l ocal

conditions, must be allowed wide latitude in their delegated discretion." Jock v.

Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005). Therefore, "[t]he

proper scope of judicial review is not to suggest a decision that may be better

than the one made by the board, but to determine whether the board could

reasonably have reached its decision on the record." Ibid.

Plaintiff raises the following arguments for our consideration:

I. THE TRIAL COURT ERRED IN UPHOLDING
THE APPROVALS GRANTED BY THE PLANNING
BOARD TO LIDL BECAUSE LIDL SUBMITTED AN
INCOMPLETE APPLICATION WHICH BECAME

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 SUBJECT TO THE NEW STORMWATER
MANAGEMENT REGULATIONS UPON THEIR
ADOPTION.

II. THE TRIAL COURT ERRED IN UPHOLDING
THE APPROVALS GRANTED BY THE PLANNING
BOARD TO LIDL BECAUSE EVEN IF LIDL'S
APPLICATION WAS DEEMED COMPLETE PRIOR
TO THE ADOPTION OF THE NEW STORMWATER
MANAGEMENT REGULATIONS THEY
NEVERTHELESS APPLIED UNDER THE "HEALTH
AND PUBLIC SAFETY" EXCEPTION.

III. THE TRIAL COURT ERRED IN UPHOLDING
THE APPROVALS GRANTED BY THE PLANNING
BOARD TO LIDL BECAUSE MONROE
TOWNSHIP'S UNEXPLAINED DILATORY
CONDUCT IN ADOPTING THE NEW
STORMWATER MANAGEMENT REGULATIONS
DOES NOT PROVIDE A BASIS TO EXCUSE
COMPLIANCE.

IV. THE DE NOVO STANDARD OF REVIEW
APPLIES TO THE REVIEW OF BOTH THE
PLANNING BOARD'S AND THE TRIAL COURT'S
DETERMINATIONS OF LAW.

Having reviewed these contentions and the record in light of the

applicable standards, we affirm.

Plaintiff first contends the trial court erred in upholding the approvals

granted by the Board because Lidl submitted an incomplete application. We are

unpersuaded by this argument. Zoning boards are subject to the "Time of

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Application" (TOA) Rule. Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of

Twp. of Franklin, 233 N.J. 546, 560 (2018). The TOA Rule provides:

Notwithstanding any provision of law to the contrary,
those development regulations which are in effect on
the date of submission of an application for
development shall govern the review of that application
for development and any decision made with regard to
that application for development. Any provisions of an
ordinance, except those relating to health and public
safety, that are adopted subsequent to the date of
submission of an application for development, shall not
be applicable to that application for development.

[N.J.S.A. 40:55D-10.5.]

The TOA Rule applies only when there is a complete application for

development. Dunbar, 233 N.J. at 556. "An application for development is

complete for purposes of commencing the applicable time period for action by

a municipal agency, when so certified by the municipal agency or its authorized

committee or designee." N.J.S.A. 40:55D-10.3. A municipal agency has forty-

five days to act on the application and if no action is taken, the application shall

be deemed complete. Ibid. "[I]n the event information required by local

ordinance is not pertinent, the applicant may request a waiver as to that

information or those documents it finds extraneous." Ibid.

The applicant's submission will provisionally trigger
the TOA Rule if a waiver request for one or more items
accompanies all other required materials; if the Board

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 grants the waiver, then the application will be deemed
complete. If the Board denies the waiver, its decision
will be subject to review under the customary "arbitrary
and capricious or unreasonable" standard.

[Dunbar, 233 N.J. at 563 (quoting Grabowsky v. Twp.
of Montclair, 221 N.J. 536, 551 (2015)).]

Here, Lidl's application contained a request to waive "any other variances,

waivers and approvals that may be required." Although Snowden recommended

the application be deemed incomplete, it is the Board's authority to make that

determination. When the Board deemed Lidl's application complete as of its

filing on January 4, 2021, it was afforded the protection of the TOA Rule.

Because ordinances O:24-2021 and O:25-2021 were not in effect on that date,

Lidl was not required to comply with them.

Plaintiff also argues Lidl's application nevertheless must comply with the

new ordinances because of the health and public safety exception within the

TOA Rule. This position is counter to the explicit language of NJDEP

regulations. N.J.A.C. 7:8-1.6(b)(1) and (2) state that major development, such

as Lidl's application here, "shall be subject to the stormwater management

requirements in effect [on March 1, 2021], provided the application includes

both the application form and all accompanying documents required by

ordinance" was filed "prior to March 2, 2021." By regulation, because the Board

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deemed the application complete upon its filing, it was subject to the ordinances

in effect on March 1, 2021.

Lastly, we reject plaintiff's argument Monroe Township took "litigational"

advantage under the "turn square corners" doctrine. F.M.C. Stores Co. v.

Borough of Morris Plains, 100 N.J. 418, 426-27 (1985). This doctrine prohibits

government from "conduct[ing] itself so as to achieve or preserve any kind of

bargaining or litigational advantage." New Concepts For Living, Inc. v. City of

Hackensack, 376 N.J. Super. 394, 401 (App. Div. 2005) (quoting id. at 426).

We agree with the trial court's finding that the record was devoid of any evidence

suggesting Monroe Township purposely delayed adoption of the stormwater

ordinances for "litigational" advantage in this matter.

Affirmed.

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