514 MILLBURN AVENUE, LLC VS. PLANNING BOARD OF Â THE TOWNSHIP OF MILLBURN(L-8136-15, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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.
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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.
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