The Law

Objections Arbitrary, Capricious, Unreasonable by Ron Davis Local opposition to the construction of a new shopping center in Hamilton, NJ, has apparently lost the battle to abort the project while it’s still in the planning stage. Plans for the center call for development on a now-vacant 29.9-acre site of structures that will house a ShopRite superstore and nine other retailers. Opponents of the project had hoped that the developer would opt to remodel an adjacent near-empty shopping center and occupy it instead. Opponents also contended that the new development will fail to comply with local building code rules. And the Hamilton Township Planning Board agreed, ultimately rejecting the developer’s plans. Board members found that those plans did not adequately address issues of drainage, noise, and traffic, nor did they observe the regulations for sign placement. The developer appealed the planning board’s decision, pointing out that plans for the shopping center did in fact comply with local standards and that the board’s grounds of opposition were “arbitrary, capricious, and unreasonable.” On such grounds, the courts can intervene and overrule local authorities. And that’s just what occurred. A New Jersey court, after hearing expert testimony from both sides, ruled in favor of the developer, finding that opposition to the development was indeed based on arbitrary, capricious, and unreasonable conclusions. Opponents of the shopping center appealed. A New Jersey appellate court, however, decided in favor of the developer. After hearing expert witnesses from both sides, the judge concluded that the developer had complied with local planning regulations–with one exception: the placement and number of advertising signs at the proposed shopping center. Otherwise, the judge ruled, “while it is true that the planning board has wide discretion to ensure compliance with the objectives and requirements of the local site plan regulation, this discretion was never intended to include the legislative or quasi-judicial power to prohibit a permitted use.... Though understandable that the planning board may have preferred the developer to rebuild the adjacent shopping center instead of developing an open space, this preference cannot overcome the fact that the developer’s parcel is being used for its intended commercial purpose.” (Levin Properties, L.P. v. Hamilton Township Planning Board, 2006 WL 1886202 [N.J. Super. A.D.]) Decision: July 2006 Published: September 2006