JAMES HUGHES VS. TOWN OF WESTFIELD PLANNING BOARDÂ (L-0785-14, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

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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

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 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.

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