(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 17, 1995 -- Decided June 6, 1995
COLEMAN, J., writing for a majority of the Court.
The issue on appeal is whether two amendments to the Township of Manalapan's (Township) zoning
ordinance that exclude Home Depot, U.S.A., Inc. (Home Depot) from Manalapan's C-1 regional commercial
shopping-center district are substantially consistent with the Township's Master Plan (Master Plan).
Before 1990, the Township created a C-1 regional commercial shopping-center district through its
zoning ordinance. The entire C-1 district is comprised of approximately 100 acres divided into two tracts,
one of which is owned by Manalapan Realty, L.P. (Realty). Before October 1990, Realty built the
Manalapan Mall on a portion of its property. On October 16, 1990, Realty submitted an application to the
Township Planning Board (Board) for preliminary site-plan approval to expand its commercial-retail space
and to rename the Mall the Manalapan Epicenter (Epicenter). The proposed Epicenter included a number
of anchor stores, one of which was a home improvement center operated by Home Depot.
When the site-plan application was submitted for approval, and at the time of the first public hearing
on the application on May 9, 1991, the Manalapan Land Use and Development Ordinance ( Manalapan
Ordinance) § 130.94 permitted retail shopping uses in the C-1 district but did not permit a warehouse use.
One of the issues raised during the hearings before the Board was whether Home Depot was a retail store
or a warehouse. Moreover, there was substantial public opposition to Home Depot as a proposed tenant in
the Epicenter because of off-site traffic concerns and concerns about the nature of Home Depot's business.
At the Board's request, its senior supervising planner advised the Board on June 27, 1991 that Home
Depot was a permitted retail store under the existing ordinance. After further public hearings and strong
public opposition to Home Depot, the Township Committee on July 24, 1991 adopted two amendments to
the zoning ordinance. The first of those amendments, Manalapan Ordinance § 130.94, more specifically
defined the meaning of retail stores, shops and markets as permitted uses in the C-1 district. Excluded from
the zone was any establishment engaged in the sale of lumber or building materials or in storing, displaying,
or selling materials outside a completely enclosed building. The second amendment, Manalapan Ordinance
§ 130.52, added a subsection to define "building materials." Both of these amendments were adopted after
the Board found them to be substantially consistent with the Master Plan that just previously had been
adopted. These new amendments effectively excluded Home Depot from the C-1 district.
On September 11, 1991, Realty filed a complaint in lieu of prerogative writs challenging the validity
of the amendments to the zoning ordinance. The Board approved Realty's site plan in its resolution on
September 12, 1991, noting that its approval was based on Realty's site-plan amendment removing Home
Depot as an anchor store. Realty filed a second complaint in lieu of prerogative writs challenging the
Board's failure to resolve whether Home Depot was a permitted use prior to the amendments to the zoning
ordinance.
The trial court consolidated the actions and granted Home Depot's request to intervene as a
plaintiff. On September 23, 1992, the trial court concluded that the amendments to Manalapan's zoning
ordinance were arbitrary and capricious and were therefore invalid. The court also concluded that the
proposed Home Depot store was a permitted use under Manalapan's prior zoning ordinance, which the court
reinstated.
The Township Committee appealed from, among other things, the trial court's judgment declaring the amended zoning ordinance invalid and the proposed Home Depot store a permitted use under the now
reinstated prior ordinance. The Board also appealed from that part of the trial court order declaring Home
Depot to be a permitted use. The Appellate Division consolidated these appeals.
A majority of the Appellate Division reversed the decision of the trial court, concluding that the
essential parts of the amended ordinance are valid and that, although the definition of "building materials"
might be overly broad, the offending language could be severed. Therefore, the matter was remanded to the
trial court to consider whether the definition of "building materials" is overly broad. The Appellate Division
also found that the amended ordinance had been properly adopted even if in response to public opposition;
that the ordinance as amended does not represent spot zoning; and that the amended ordinance is not
inconsistent with the Master Plan. One judge dissenting in part, concluded that the amended ordinance is
inconsistent with the Master Plan and is therefore violative of the Municipal Land Use Law (MLUL). The
dissent also concluded that banning the sale of building materials in the C-1 district was over inclusive and
invalidates the ordinance because it there is no rational relationship between the amendments to the
ordinance and the alleged evils sought to be addressed.
Realty and Home Depot appeal to the Supreme Court as of right based on the dissent in the
Appellate Division. Effective December 14, 1994, the Township Committee adopted new land-use
regulations that contain a new, more restrictive, definition of "building materials."
HELD: The amendments to the Manalapan zoning ordinance, Manalapan Ordinance § 130.94 and § 130.52,
are substantially consistent with the Master Plan and are, therefore, valid.
1. The Appellate Division did not make new factual findings in violation of its scope of appellate review.
Rather, the Appellate Division disagreed with some of the trial court's legal conclusions because they were
inconsistent with well-established law. The Appellate Division properly confined its review to a
determination whether the presumption of validity that attaches to the amendment had been overcome. (pp.
10-13)
2. The reasons given by the Township Committee, and acknowledged by the courts below, for amending the
ordinance establish a reasonable relationship between the amendments and the objectives of the zoning
ordinance. (pp. 13-18)
3. The amendments banning Home Depot from the C-1 district are not inconsistent with the Master Plan.
The Board that adopted the Master Plan also determined that the zoning amendments were substantially
consistent with the Master Plan. That determination should be accorded great deference. Moreover,
Realty's and Home Depot's reliance on the existence of Channel Home Center is misplaced. Under the
ordinance in effect in April 1990, Channel Home Center was regarded as a permitted use. Thus, it was a
protected use and any revision to the Master Plan or amendments to the ordinance could not alter its status.
In contrast, Home Depot was not operating in the C-1 district when either the Master Plan was adopted or
the ordinance was amended. (pp. 18-20)
4. The decision not to permit the sale of "building materials" can serve valid zoning purposes and cannot be
categorically adjudged as arbitrary and unreasonable. (pp.20-22)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN and GARIBALDI
join in JUSTICE COLEMAN'S opinion. JUSTICE STEIN filed a separate opinion concurring in part and
dissenting in part.
JUSTICE STEIN, concurring in part and dissenting in part, writes separately to express his
concern about the appropriateness of the Court's determination to decide and uphold in their entirety the
validity of amendments to the Township's zoning ordinance that have since been superseded. Therefore,
Justice Stein would have dismissed the appeal as moot.
SUPREME COURT OF NEW JERSEY
A-61/
62 September Term 1994
MANALAPAN REALTY, L. P.,
Plaintiff-Appellant,
v.
TOWNSHIP COMMITTEE OF THE
TOWNSHIP OF MANALAPAN and
THE TOWNSHIP OF MANALAPAN, a
municipal corporation of the
State of New Jersey,
Defendants-Respondents.
---------------------------------
MANALAPAN REALTY, L.P., a
New Jersey limited partnership,
Plaintiff-Appellant,
v.
MANALAPAN TOWNSHIP PLANNING
BOARD,
Defendant-Respondent.
----------------------------------
HOME DEPOT USA, INC.,
Intervenor-Appellant,
v.
TOWNSHIP COMMITTEE OF THE TOWNSHIP
OF MANALAPAN, THE TOWNSHIP OF
MANALAPAN, and MANALAPAN TOWNSHIP
PLANNING BOARD,
Defendants-Respondents.
Argued January 17, 1995 -- Decided June 6, 1995
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at
272 N.J. Super. 1 (1994).
Michael M. Rosenbaum argued the cause for appellant Manalapan Realty, L.P., etc. (Budd, Larner, Gross, Rosenbaum, Greenberg & Sade,
attorneys; Mr. Rosenbaum, Robert Novack, and
Mary L. Moore, on the briefs).
Michael B. Steib argued the cause for
appellant Home Depot U.S.A., Inc.
Robert F. Munoz argued the cause for
respondents Township Committee of the
Township of Manalapan and the Township of
Manalapan (Lomurro, Davison, Eastman & Munoz,
attorneys).
James H. Gorman argued the cause for
respondent Manalapan Township Planning Board.
The opinion of the Court was delivered by
COLEMAN, J.
This appeal requires us to determine whether two amendments
to the Township of Manalapan's (Township) zoning ordinance that
exclude Home Depot U.S.A., Inc. (Home Depot) from Manalapan's C-1
regional commercial shopping-center district are substantially
consistent with the Township's Master Plan (Master Plan). A
majority in the Appellate Division, in an opinion published at
272 N.J. Super. 1 (l994), held the amendments not arbitrary,
capricious or unreasonable, and therefore substantially
consistent with the Master Plan. We agree and affirm.
Before 1990, the Township created a C-1 regional commercial shopping-center district through its zoning ordinance. The entire C-1 district is comprised of approximately 100 acres divided into two tracts. The C-1 district is bounded by Syms Road to the north, Craig Road to the south and U.S. Highway 9 to
the east. Plaintiff Manalapan Realty, L.P. (Realty) is the owner
of one of the two tracts consisting of approximately fifty-seven
acres. Before October 1990, Realty built the Manalapan Mall on a
portion of its property that contains approximately 186,000
square feet of commercial space.
On October 16, 1990, Realty submitted an application to the
Township Planning Board (Board) for preliminary site-plan
approval to expand its commercial-retail space to approximately
500,000 square feet and to rename the mall the Manalapan
Epicenter (Epicenter). The proposed Epicenter included a number
of anchor stores, one of which was to be a "home improvement
center" operated by Home Depot. Home Depot engages in a form of
merchandising known as "warehouse selling" or "warehouse format
of selling." This concept represents an expansion of traditional
retail stores. Examples of warehouse selling stores are Toys "R"
Us, Staples, an office supply store, and Shopper's Food
Warehouse, a warehouse approach to supermarkets.
When the application for site-plan approval was submitted,
and at the time of the first public hearing on the application on
May 9, l99l, the Manalapan Land Use and Development Ordinance
(Manalapan Ordinance), § 130.94, permitted the following
pertinent uses in a commercial shopping center:
(1)
(a) Retail stores, shops and markets.
(b) Personal services.
(c) Offices and business services.
(d) Banks and fiduciary institutions.
(e) Indoor recreation facilities.
* * * *
(2) Civic center uses. . . .
(3) Temporary buildings. . . .
(4) Farms.
One of the issues raised during the hearings before the
Board on the site-plan application was whether Home Depot was a
"retail store," a permitted use under the ordinance, or a
"warehouse," a use not permitted under the ordinance. In
addition, substantial public opposition to Home Depot as a
proposed tenant in the Epicenter emerged. Off-site traffic and
the nature of the Home Depot business were major concerns of the
Board and members of the public as well. In an effort to resolve
these and other concerns, Realty's experts met with the Township
Committee, the Board and their respective planning experts. Two
members of the Board also served as members of the Township
Committee. While the Board conducted hearings on the
application, it was formulating simultaneously a master plan
pursuant to N.J.S.A. 40:55D-28 to guide the projected growth in
the Township through the year 2010. On June 13, 1991, the Board
requested its professional planner to address the question
whether a Home Depot is a permitted retail use in the C-1
district. On June 27, 1991, the Board's senior supervising
planner, Richard S. Cramer, advised the Board that Home Depot was
a permitted retail store under the existing ordinance.
The Board conducted further public hearings on May 23 and
July 18, 1991. After strong public opposition to Home Depot
continued, the Township Committee adopted two amendments to the
zoning ordinance on July 24, 1991. The first amendment more
specifically defined the meaning of retail stores, shops and
markets as permitted uses in the C-1 district. It provided:
(a) Retail stores, shops and markets
including establishments engaged in the
selling of paint, glass, wallpaper, or
hardware items for household use, but not
including any establishment engaged in the
sale of lumber or building materials or
storing, displaying, or selling materials
outside a completely enclosed building.
[Manalapan Ordinance, § 130.94.]
The second amendment added a subsection to define "building
materials" as used in the amendment. It defined "building
materials" as:
[m]aterials that can be arranged, united or
joined to construct a building or structure.
Such materials include, but are not limited
to, rough or dressed lumber, millwork,
roofing, shingles, wallboard, molding,
plywood, sheetrock, bricks, doors, windows,
paneling, concrete block, tiles, cabinets or
plumbing fixtures.
[Manalapan Ordinance, § 130.52.]
Both amendments were adopted after the Board, pursuant to
N.J.S.A. 40:55D-26, found the proposed amendments to be
substantially consistent with the Master Plan adopted shortly
before the amendments were enacted.
On September 11, 1991, Realty filed its first complaint in lieu of prerogative writs challenging the validity of the amendments to the zoning ordinance. At the Board's next meeting, on September 12, 1991, the Board approved Realty's site plan
application without Home Depot as an anchor tenant. The Board's
resolution stated that after the zoning ordinance was amended
during the pendency of the site-plan application, Realty modified
its application to withdraw Home Depot as an anchor tenant. On
October 1, 1991, Realty filed another complaint in lieu of
prerogative writs challenging the Board's failure to resolve
whether Home Depot was a permitted use prior to the amendments to
the ordinance.
The Appellate Division accurately described the disposition
of the two complaints by the Law Division and the issues raised
in the appeal:
The trial court consolidated these actions.
Subsequently, it granted Home Depot leave to
intervene as a plaintiff. After a six day
bench trial, the trial court issued a written
opinion [dated September 23, 1992] which
concluded that the amendment to Manalapan's
zoning ordinance was arbitrary and capricious
and therefore invalid. The trial court also
concluded that the proposed Home Depot store
was a permitted use under Manalapan's prior
zoning ordinance, which was reinstated as a
result of the invalidation of the amended
ordinance. Consequently, the trial court
vacated the paragraphs of the Board's
resolution which had left this question for
later resolution in the event the ordinance
were invalidated. Thereafter, Realty and
Home Depot filed motions to compel defendants
to reimburse them for various litigation
expenses. These motions were granted in part
and denied in part.
The Township Committee appeals from the parts of the judgment declaring that the amended zoning ordinance is invalid and that the proposed Home Depot store is a permitted use under the now reinstated prior ordinance. The Township Committee also appeals from the post-judgment order awarding Realty and Home Depot various litigation expenses. The Board
appeals from the part of the judgment which
declares the Home Depot store to be a
permitted use and from the post-judgment
order awarding plaintiffs various litigation
expenses. Realty and Home Depot cross-appeal
from the parts of the post-judgment order
which denied an award of the full amount of
litigation expenses which they had sought.
We consolidate the two appeals.
[Manalapan, supra, 272 N.J. Super. at 7-8.]
The Appellate Division reversed the Law Division and
concluded that "the essential parts of Manalapan's amended zoning
ordinance excluding retail stores which sell lumber or building
materials . . . are valid. Although the definition of `building
materials' contained in this amended ordinance may be too broad,
any invalid part of that definition would be severable from the
remainder of the ordinance and thus would not affect its
validity." Id. at 8. The case was remanded to the Law Division
to consider Realty's claim that the definition of building
materials is overly broad. Id. at 15. The Appellate Division
also found the amended ordinance was properly adopted even if in
response to public opposition, id. at 12; that the ordinance as
amended does not represent spot zoning, id. at 13-14; and that
the amended ordinance is not inconsistent with the Master Plan.
Id. at 13.
Judge Wefing filed a separate opinion concurring in part and
dissenting in part. Id. at 15. She concluded that the amended
ordinance is inconsistent with the Master Plan and is therefore
violative of the Municipal Land Use Law, N.J.S.A. 40:55D-62a.
Id. at 20. She also concluded that banning the sale of "building
materials" in the C-1 zone is "over inclusive" and invalidates
the ordinance because there is no rational relationship between
the ordinance amendments and the alleged evils sought to be
addressed. She felt no purpose would be served by remanding the
matter to the Board "to offer belated justifications for a
defective ordinance." Ibid.
The ordinary effect of the filing of a notice of appeal is to deprive the trial court of jurisdiction to act further in the matter unless directed to do so by an appellate court, or jurisdiction is otherwise reserved by statute or court rule. Rolnick v. Rolnick, 262 N.J. Super. 343, 365-66 (App. Div. 1993); Pressler, Current N.J. Court Rules, comment 1 on R. 2:9-1(a) (1994). Here, however, the parties continued with the litigation in the trial court and before the Board after the appeals were filed. We, therefore, feel compelled to refer to these proceedings conducted during the pendency of the appeal to the Appellate Division. We do so out of caution, to complete the procedural history and to make clear what we do not decide.
The notice of appeal was filed with the Appellate Division by the Township on November 16, 1992, and by the Board on November 30, 1992, from the trial court's judgment dated October 16, 1992. The Appellate Division rendered its decision on March 14, 1994. Notwithstanding the pendency of these appeals, on July 7, 1993, Realty submitted a final site-plan application to the Board that included Home Depot as an anchor tenant. The Board
denied the application on December 2, 1993. Two days after the
appeals were decided, the trial court on March 16, 1994, granted
a motion in aid of litigant's rights, see Rule 2:9-1(a), and
approved Realty's final site-plan application that included Home
Depot as an anchor tenant. That favorable decision was subject
to future approval by the Board of an architectural plan for five
free-standing pad site stores. The Board filed an appeal from
the March 16, 1994 order. The Township and the Board filed
separate appeals from an order of the trial court dated January
28, 1994, invalidating an ordinance that controls site-plan
application fees. Those three appeals are pending disposition in
the Appellate Division. We question, without deciding, whether
the trial court had jurisdiction to enter the March 16, 1994,
order involved in one of the pending appeals. See Neger v.
Neger,
93 N.J. 15, 38 n.11 (l983). In any event, we do not
decide those appeals even though our decision may render moot the
appeal from the March 16 order.
In addition, effective December 14, 1994, the Township
Committee adopted new land-use regulations identified as
Development Regulations of the Township of Manalapan (1994)
(Development Regulations). The regulations contain a new
definition of "building materials" in an apparent attempt to
comply with the Appellate Division majority's concern that the
definition in Manalapan Ordinance, § 130.52, was too broad. The
new definition is as follows:
"Building Materials" means materials that can
be arranged, united, or joined to support,
frame, enclose, sheath, or be otherwise
fashioned into a building or structure. Such
materials include, but are not limited to,
rough or dressed lumber, millwork, roofing,
wallboard, molding, plywood, sheetrock,
bricks, doors, windows, paneling, or concrete
block.
[Development Regulations, § 2.4 at 2-6.]
Realty and Home Depot appeal to this Court as of right, Rule
2:2-1(a)(2), based on Judge Wefing's dissenting opinion. No
petition for certification was filed. Brandenburg v.
Brandenburg,
83 N.J. 198, 203 (1980). Consequently, the
discussion that follows is limited to a review of the single
issue on which the dissent was filed, namely, whether the
amendments to the ordinance are substantially consistent with the
Master Plan.
Realty argues that the Appellate Division exceeded the scope of appellate review when it rejected findings made by the trial court. That argument must be analyzed in the context of the issues before the trial court. The Law Division described the issues in the following manner:
The plaintiff's allegations can be divided into 2 major categories: (1) challenges to the ordinance amendments and (2) challenges to certain portions of the Planning Board's September 13, 1991 Resolution. The plaintiff has also brought a claim under 42 U.S.C. §1983.
With regard to the amendments, the plaintiff claims that they are unlawful as inverse spot zoning. Moreover, the plaintiff asserts the amendments violate substantive due process since their enactment was arbitrary, capricious and unreasonable;
discriminates against Home Depot; is not
supported by substantial credible evidence;
bears no rational relationship to the alleged
public interest sought to be advanced; and is
inconsistent with the Manalapan Master Plan.
The trial court found that because the amended ordinance
prohibits all stores in the C-1 district from selling certain
building materials such as lumber and from selling any materials
in an unenclosed building, "the law [of] inverse spot zoning is
[not] applicable in these circumstances." It also found no
violation of
42 U.S.C.A.
§1983.
The trial court, however, found the amendments to the
ordinance arbitrary, capricious and unreasonable because they
"were targeted specifically at prohibiting Home Depot as a tenant
in the Epicenter." The trial court also determined that "no
rational relationship between the ordinance amendments and the
defendant's purported objectives" existed and the purported
objectives "do not in any way achieve the stated purpose of a
comprehensive zoning plan."
Contrary to Realty's contention, the Appellate Division did
not make new factual findings in violation of the scope of
appellate review articulated in cases such as Meshinsky v.
Nichols Yacht Sales, Inc.,
110 N.J. 464, 475 (1988), and Rova
Farms Resort, Inc. v. Investors Ins. Co. of Am.,
65 N.J. 474,
483-84 (l974). Rather, the Appellate Division disagreed with
some of the trial court's legal conclusions because they were
inconsistent with well-established law. A trial court's
interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special deference.
State v. Brown,
118 N.J. 595, 604 (1990); Dolson v. Anastasia,
55 N.J. 2, 7 (1969); Pearl Assurance Co. Ltd. v. Watts,
69 N.J.
Super. 198, 205 (App. Div. 1961).
That a municipality may change its zoning ordinance during
the pendency of a site plan application is beyond question. This
is so even if the ordinance is amended in direct response to a
particular application. See Morris v. Postma,
41 N.J. 354, 362
(l964); Burcam Corp. v. Planning Bd. Township of Medford, 168
N.J. Super. 508, 512 (App. Div. l979); William M. Cox, New Jersey
Zoning and Land Use Administration, § 28-3.5 at 435 (1994 ed.).
Because the enactment of, or amendment to, a zoning ordinance is
a legislative act, the Township's governing body is permitted to
enact an amendment in response to objections to a proposed use of
land as long as the amendment is consistent with the Municipal
Land Use Law (MLUL). Hyland v. Mayor & Township Comm. of Morris,
130 N.J. Super. 470, 479-80 (App. Div.), aff'd o.b.,
66 N.J. 31
(l974). Consequently, even if Home Depot was a permitted use
under the prior ordinance, the Township was free to change the
ordinance in direct response to Realty's site-plan application
that included Home Depot as an anchor tenant.
As a legislative body, the Township Committee has the
authority to decide which types of stores it will allow as
permitted uses within its commercial district where no
fundamental right is involved. See Pierro v. Baxendale,
20 N.J. 17 (1955). Given that the amendments to the ordinance do not
infringe upon a fundamental right of Realty or Home Depot, the
Appellate Division properly confined its review to a
determination whether the presumption of validity that attached
to the amendment had been overcome. Bell v. Township of
Stafford,
110 N.J. 384, 395 (1988); Zilinsky v. Zoning Bd. of
Adj. of Verona,
105 N.J. 363, 368 (l987); Kozesnik v. Township of
Montgomery,
24 N.J. 154, 167 (1957). See Urban v. Planning Bd.
of the Borough of Manasquan,
124 N.J. 651, 659-60 (1991). Viewed
in this context, the Appellate Division did not exceed the scope
of appellate review.
Realty and Home Depot challenge the amended ordinance as inconsistent with the Master Plan that was adopted two months prior to enactment of the amendments. They assert that the Master Plan, in failing to reflect dissatisfaction with either the proposed application of Home Depot and/or the existence of a Channel Home Center in the district, implicitly regards a home improvement center as a permitted use. They argue that the amendments to the ordinance are therefore inconsistent with the Master Plan. The Township asserts that the Master Plan designated the C-1 district as a regional commercial shopping center available for mixed uses but not available for all uses. The Township argues further that because the Master Plan is expressed in general terms it is of limited relevance in determining whether Home Depot is a permitted use.
The Legislature has enabled municipalities, through the
exercise of the police power, to enact and amend zoning
ordinances. Riggs v. Township of Long Beach,
109 N.J. 601, 610
(1988); Taxpayer Ass'n of Weymouth Township v. Weymouth Township,
80 N.J. 6, 20 (l976), appeal dismissed and cert. denied,
430 U.S. 977,
97 S. Ct. 1672,
52 L. Ed.2d 373 (1977). A presumption of
validity attaches to a zoning ordinance that may be overcome only
if an opponent of the ordinance establishes the ordinance is
"clearly arbitrary, capricious or unreasonable, or plainly
contrary to fundamental principles of zoning or the [zoning]
statute." Bow & Arrow Manor, Inc. v. Town of West Orange,
63 N.J. 335, 343 (l973); accord Zilinsky, supra, 105 N.J. at 368.
An ordinance or amendment thereto must advance one of the fifteen
general purposes of the MLUL specified in N.J.S.A. 40:55D-2.
Riggs, supra, 109 N.J. at 611. Where, as here, an ordinance does
not infringe upon a fundamental right, there is no requirement
that it recite "tangible, specific objectives promoted by the
ordinance in order to be valid." Zilinsky, supra, 105 N.J. at
371; Bell, supra, 110 N.J. at 395. Finally, the ordinance must
be substantially consistent with the land-use plan element and
the housing plan element of the Master Plan except for a few
statutory exemptions not pertinent to this case. See Zilinsky,
supra, 105 N.J. at 367; N.J.S.A. 40:55D-62a. The only aspect of
the Riggs standard pertinent to this case is whether the
amendments to the ordinance are substantially consistent with the
land-use element of the Master Plan.
The MLUL, N.J.S.A. 40:55D-5, defines a master plan as "a
composite of one or more written or graphic proposals for the
development of the municipality as set forth in and adopted
pursuant to [N.J.S.A. 40:55D-28]." A planning board is charged
with the responsibility of preparing, adopting and amending a
master plan "to guide the use of lands within the municipality in
a manner which protects public health and safety and promotes the
general welfare." N.J.S.A. 40:55D-28a. A master plan must
contain two elements: 1) "objectives, principles, assumptions,
policies and standards upon which the constituent proposals for
the physical, economic and social development of the municipality
are based," and 2) "[a] land use plan element." N.J.S.A. 40:55D-28b. Although the statute lists a number of other elements that
may be included in a master plan, they are discretionary with the
municipality. Cox, supra, § 40-1 at 580.
The Master Plan must be examined in light of the Epicenter
as a planned commercial development on contiguous acreage of the
size specified by the ordinance "to be developed according to a
[site] plan as a single entity containing one or more structures
with appurtenant common areas to accommodate commercial or office
uses or both and any residential and other uses incidental to the
predominant use as may be permitted by ordinance." N.J.S.A.
40:55D-6. The Master Plan does not have the operative effect of
a zoning ordinance. But the land-use element of the Master Plan
"is required to be the basis for any zoning ordinance." Cox,
supra, § 40-2 at 581.
Development of the Master Plan was underway before Realty's
site-plan application was submitted. The Township planning
consultant, Richard Cramer, initially presented the Master Plan
to the Board in April 1990. The Board held a public hearing on
the Master Plan on May 7, 1990, after complying with the notice
requirements of N.J.S.A. 40:55D-13. Cramer incorporated a number
of changes recommended by both the Board and the general public
and re-submitted the Master Plan to the Board in April 1991. The
last public hearing was held on April 25, 1991. On May 23, 1991,
further corrections were made and the Master Plan was adopted by
the Board. While the Master Plan was under consideration, Home
Depot was identified in Realty's October 1990 site-plan
application as an anchor tenant of the proposed Epicenter. On
the parcel of land immediately contiguous to the proposed
Epicenter, a Channel Home Center was located for an unspecified
period prior to April 1991 when the Master Plan was resubmitted
to the Board.
The Master Plan identifies the C-1 district as follows:
"Regional Commercial Shopping Center District located northwest
of the Intersection of Craig Road and Route 9. Presently
developed as the Manalapan Mall with expansion area available for
mixed commercial uses." Commercial land in the Township is
divided into two categories, retail and office. Retail use
comprises 83.54 percent of all commercial land in the Township.
The Route 9 corridor that includes the Manalapan Mall is the
major shopping area on Wilson Avenue. Land use along Route 9 has
developed largely as a commercial corridor.
N.J.S.A. 40:55D-28b(2)(b) directs that the land-use element
of the Master Plan must take into account "the existing and
proposed location, extent and intensity of development of land to
be used in the future for varying types of . . . commercial . . .
purposes or combination of purposes; and stating the relationship
thereof to the existing and any proposed zone plan and zoning
ordinance." Once the Master Plan was adopted the Township was
authorized by the MLUL to amend its zoning ordinance "relating to
the nature and extent of the uses of land and of buildings and
structures" within the Township, but "all of the provisions of
such zoning ordinance or any amendment or revision thereto shall
either be substantially consistent with the land use plan element
. . . of the master plan or designed to effectuate such plan
elements." N.J.S.A. 40:55D-62a.
Another provision of the MLUL authorized the Township
through its zoning ordinance to "[l]imit and restrict buildings
and structures . . . according to their type and the nature and
extent of their use. . . ." N.J.S.A. 40:55D-65a. Both the
majority and dissenting judges in the Appellate Division accepted
the Township's statement that the purposes for amending the
ordinance were to protect the general welfare by preserving the
retail character of the C-1 district, to control the intensity of
development, to eliminate the hazards of fire, and to eliminate
impediments to pedestrian circulation. See N.J.S.A. 40:55D-2a,
b, g, i and k. Other purposes were also stated. Those reasons
establish a reasonable relationship between the amendments and
the objectives of the zoning ordinance. See also Zilinsky, 105
N.J. at 371. The objectives of the ordinance amendments need not
be stated in the ordinance but may be provided, as occurred here,
when the ordinance is attacked. Ibid.
We reject Realty's and Home Depot's arguments that the
amendments banning Home Depot from the C-1 district are
inconsistent with the Master Plan because the Master Plan
expressed no disapproval, reluctance or hesitation with respect
to the application of Home Depot or the Channel Home Center
located in the C-1 district when the Master Plan was adopted.
The Board that prepared and adopted the Master Plan also
determined pursuant to N.J.S.A. 40:55D-26a that the proposed
zoning amendments are substantially consistent with the Master
Plan. Such a determination by the Board is entitled to deference
and great weight. See In re Adoption of N.J.A.C. 7:26B,
128 N.J. 442, 449-50 (1992); Waste Management of Central Jersey, Inc. v.
State, 278 N.J. Super. 56, 64 (App. Div. 1994). See also Kramer
v. Board of Adj., Sea Girt,
45 N.J. 268, 296-97 (1965).
The Legislature has not defined what is meant by
"substantially consistent" with a master plan. "When construing
legislation, in the absence of a specific definition, we give
words their ordinary and well-understood meanings." Great Atl. &
Pac. Tea Co. v. Borough of Point Pleasant,
137 N.J. 136, 143-44
(l994); Levin v. Township of Parsippany-Troy Hills,
82 N.J. 174,
182 (l980). The only interpretation of "substantially
consistent" that will not defeat the objective of the MLUL is to
give these words their plain meaning. Substantial means
"[h]aving substance; not imaginary, unreal, or apparent only;
true, solid, real," The Compact Oxford English Dictionary 1947
(2d ed. 1993), or, "having real existence, not imaginary [;]
firmly based, a substantial argument." The New Lexicon Webster's
Dictionary of the English Language 987 (l987). Thus, the concept
of "substantially consistent" permits some inconsistency,
provided it does not substantially or materially undermine or
distort the basic provisions and objectives of the Master Plan.
Realty's and Home Depot's reliance on the existence of a
Channel Home Center in the C-1 zone is misplaced. Revision of
the proposed master plan was started in April 1990 and the first
public hearing on it was conducted in May 1990, six months before
Realty's application was submitted. Under the ordinance in
effect in April 1990 Channel Home Center was regarded by Cramer,
the Board's senior planner, as a retail store, a permitted use
under the ordinance. Thus, if Channel was a permitted use, it
was protected by virtue of N.J.S.A. 40:55D-68, and a revision of
the Master Plan or amendments to the ordinance could not alter
its status. See Dresner v. Carrara,
69 N.J. 237, 240 (1976). In
contrast, Home Depot was not operating in the C-1 district when
either the Master Plan or the ordinance amendments were adopted.
It therefore acquired no vested rights under N.J.S.A. 40:55D-68.
Nor was a site-plan approval granted under the pre-amended
ordinance with Home Depot as a tenant, thereby giving it a
protected status by virtue of N.J.S.A. 40:55D-49a. Moreover, the
Channel Home Center building was converted to a Grand Union
supermarket, according to counsel for the Township, by the time
the amendments were adopted in July 1991.
Furthermore, the amendments are not invalidated simply
because traffic problems that a Home Depot may generate could
have been resolved during the site-plan stage and by strict
enforcement of existing regulations rather than through zoning
amendments. The judiciary cannot evaluate such a policy
determination based on the private views of judges. The wisdom
of a zoning ordinance or an amendment thereto "is reviewable only
at the polls." Kozesnik, supra, 24 N.J. at 167; see also Clary
v. Borough of Eatontown,
41 N.J. Super. 47, 69-70 (App. Div.
l956). Where the validity of an ordinance is debatable, the
validity of the ordinance must be upheld under the "no
discernible reason" standard. Zilinski, supra, 105 N.J. at 369;
Bow and Arrow Manor, Inc., supra, 63 N.J. at 343. The amendments
under consideration are at least debatable.
We agree with Professor Cox that because the land-use
element of a master plan forms the basis for any zoning
ordinance, it would be helpful for a master plan specifically to
identify uses deemed compatible and incompatible in a particular
zone. Indeed, such specificity might assume heightened
importance in a commercial zone. But in reality, "planners and
planning boards cannot think of everything and new uses come into
existence fairly regularly." Cox, supra, § 40-2 at 581.
The Master Plan calls for mixed commercial uses within the
C-1 district. However, "mixed" does not signify every type of
commercial use, though the amended ordinance permits a variety of
commercial uses. The amended ordinance prohibits the sale of
lumber and large items described as "building materials." Also,
the amended ordinance discourages congestion in accordance with
the Master Plan. It requires the most appropriate commercial
uses, and the Township Committee determined that the sale of
lumber and large items of "building materials" are not
appropriate commercial uses in the zone. Nor does the Master
Plan purport to allow the sale of lumber or large items described
as "building materials" in the zone. The decision not to permit
the sale of "building materials" can serve valid zoning purposes
and "cannot categorically be adjudged an arbitrary and
unreasonable exercise of the zoning power." Zilinsky, supra, 105
N.J. at 371. We are persuaded that the Appellate Division's
conclusion that the amended ordinance was substantially
consistent with the Master Plan is eminently correct. As the
majority in the Appellate Division observed:
The Master Plan simply designates the C-1
district as a "[r]egional commercial shopping
center district . . . with expansion area
available for mixed commercial uses." There
is no inconsistency between this designation
and the exclusion of retail stores which sell
lumber or other building materials. The
Manalapan Mall will continue to be a
"regional commercial shopping center"
containing "mixed commercial uses," even
though stores which sell lumber or building
materials are prohibited. Indeed, the retail
uses within the mall may be expanded even
though this one type of business operation is
prohibited.
[Manalapan Realty, supra, 272 N.J. Super. at
13.]
Finally, we note that under the time of decision rule, Lizak
v. Faria,
96 N.J. 482, 495 (l984), and Lake Shore Estates, Inc.
v. Denville Township Planning Bd.,
255 N.J. Super. 580, 589 (App.
Div. 1991), aff'd o.b.,
127 N.J. 394 (l992), we have examined the
definition of "building materials" contained in the Development
Regulations and find it satisfies the Appellate Division's over-breadth concerns. This latest definition is sufficiently precise
to exclude the wholesale and/or retail sale of lumber and other
bulky building materials in the C-1 district which were
traditionally sold in lumberyards. Indeed, the December 14,
1994, comprehensive regulations permit lumberyards in the C-3
district, defined as general commercial. The Development
Regulations also permit lumber and building materials to be sold
in the Limited Business-Millhurst district. Development
Regulations, supra, § 5.2.A, at 5-3, exhibit 5-4 at 5-40; id. at
§ 5.5.E.1.b at 5-24 to -25. We do not decide whether those
regulations are otherwise valid.
Even though any new application to operate a Home Depot in
the Township will be controlled by the Development Regulations,
this appeal is not moot because they may be challenged also on
the basis that they are not substantially consistent with the
Master Plan.
The judgment of the Appellate Division is affirmed.
Chief Justice Wilentz and Justices Handler, Pollock, O'Hern,
and Garibaldi join in Justice Coleman's opinion. Justice Stein
has filed a separate opinion concurring in part and dissenting in
part.
SUPREME COURT OF NEW JERSEY
A-61/
62 September Term 1994
MANALAPAN REALTY, L. P.,
Plaintiff-Appellant,
v.
TOWNSHIP COMMITTEE OF THE
TOWNSHIP OF MANALAPAN and
THE TOWNSHIP OF MANALAPAN, a
municipal corporation of the
State of New Jersey,
Defendants-Respondents.
---------------------------------
MANALAPAN REALTY, L.P., a
New Jersey limited partnership,
Plaintiff-Appellant,
v.
MANALAPAN TOWNSHIP PLANNING
BOARD,
Defendant-Respondent.
----------------------------------
HOME DEPOT USA, INC.,
Intervenor-Appellant,
v.
TOWNSHIP COMMITTEE OF THE TOWNSHIP
OF MANALAPAN, THE TOWNSHIP OF
MANALAPAN, and MANALAPAN TOWNSHIP
PLANNING BOARD,
Defendants-Respondents.
STEIN, J., concurring in part and dissenting in part.
This appeal as of right based on the dissent below, see Rule 2:2-1(a)(2), is limited to the validity of two amendments to the Manalapan Zoning Ordinance adopted in July 1991. Specifically,
Judge Wefing's dissent disagreed with the Appellate Division's
holding that the amendments were not arbitrary and capricious and
were not substantially inconsistent with Manalapan's Master Plan.
272 N.J. Super. 1, 19-21 (Wefing, J., dissenting). Although the
Court's opinion acknowledges that Manalapan has subsequently
adopted a new zoning ordinance that affects the substance of the
two amendments implicated in this appeal, ante at ___ (slip op.
at 22), the Court does not address adequately the likelihood that
the issues before us are partially or entirely moot.
I write separately to express my concern about the
appropriateness of the Court's determination to decide and uphold
in their entirety the validity of amendments to the Township of
Manalapan's (Township) zoning ordinance that have since been
superseded. Those amendments no longer will control the
application by Home Depot USA, Inc. (Home Depot) to erect a home
improvement center in the Township's C-1 regional commercial
shopping-center district, which is what provoked this litigation
in the first place. Indeed, as the Court's opinion observes,
ante at ___ (slip op. at 22), the most recent amendments to the
Township's zoning ordinance, which under the time-of-decision
rule, Lizak v. Faria,
96 N.J. 482, 495 (1984), will determine the
outcome of Home Depot's application, not only address the issue
of arbitrariness and overbreadth that divided the Appellate
Division panel, but also appear specifically to authorize Home
Depot's proposed use in a zoning district other than the C-1
district. In other respects the most recent ordinance is more
restrictive. Specifically, the Ordinance's Schedule of Permitted
Uses prohibits the operation of forklifts to load customer
vehicles by any retail store in the C-1 zone, Manalapan
Development Regulations, at 5-39 (Dec. 14, 1994), a provision
that may directly affect the proposed Home Depot store.
We have often emphasized that the doctrine of mootness does
not deprive the Court of the jurisdiction or obligation to decide
issues that substantially affect the public interest. See Busik
v. Levine,
63 N.J. 351, 363-64 (1973). To the extent that this
appeal encompasses such an issue, it might be framed as the
extent of a municipality's zoning power to exclude from a
general-retail zoning district uses such as a Home Depot that
engage in a "warehouse format of selling," a merchandising format
significantly different from the operational methods used by
conventional retail establishments. Cf. Lusardi v. Curtis Point
Property Owners Ass'n,
86 N.J. 217, 227 (1981) ("Ordinarily
municipal officials have wide discretion in determining what uses
are suitable for each district, and they need not provide for a
particular use in a specified vicinity or for every appropriate
use within the borders of the municipality.") In my view,
however, the public-interest exception to the general rule
requiring dismissal of moot appeals does not justify the Court's
decision to consider and uphold the validity of the superseded
amendments to the Manalapan zoning ordinance, an issue that not
only is debatable but is no longer determinative of Home Depot's
application.
That this appeal is moot can be demonstrated by reference to the underlying facts and procedural history. In October 1990, Manalapan Realty, L.P. (Realty) applied to the Township's Planning Board for approval of a site plan contemplating a substantial expansion of its existing shopping mall located in Manalapan's C-1 regional-commercial shopping-center district. The expanded mall was to include a number of anchor stores, one of which was to be a home-improvement center operated by Home Depot. Although "[r]etail stores, shops and markets" were then among the permitted uses in the C-1 district, opponents of Home Depot's inclusion in the plan contended that that proposed use was a "warehouse" rather than a retail store. Prompted by strong public opposition to the Home Depot proposal, the Township adopted two amendments to the zoning ordinance in July 1991. One amendment excluded from the definition of "[r]etail stores" in the C-1 zone any "establishment engaged in the sale of lumber or building materials or storing, displaying, or selling materials outside a completely enclosed building." Manalapan Code § 130-94. The other amendment defined the term "building materials" as
[m]aterials that can be arranged, united or joined to construct a building or structure. Such materials include, but are not limited to, rough or dressed lumber, millwork, roofing, shingles, wallboard, molding, plywood, sheetrock, bricks, doors, windows, paneling, concrete block, tiles, cabinets, or plumbing fixtures.
[Manalapan Code § 130-52.]
Prior to their adoption, the Township Planning Board determined
that the amendments were substantially consistent with the
Township's Master Plan, which had been adopted shortly before
enactment of the amendments.
Because the amendments effectively prohibited the proposed
Home Depot use in the C-1 zone, Realty deleted the Home Depot
store from its site plan, which was then preliminarily approved
by the Planning Board in September 1991. Simultaneously, Realty
filed suit challenging the validity of the two amendments to the
zoning ordinance, and shortly thereafter filed a second suit
challenging the Planning Board's failure to resolve whether Home
Depot was a permitted use in the C-1 district prior to enactment
of the two amendments. The Law Division consolidated the two
actions. After a trial, the Law Division invalidated both
amendments on the ground that they were arbitrary and capricious,
and also determined that Home Depot was a permitted use in the C-1 district under the ordinance in effect prior to the amendments.
As the Court's opinion explains, ante at ___ - ___ (slip op.
at 8-9), the Township and Planning Board appealed to the
Appellate Division in November 1992 from the Law Division's
judgment entered October 16, 1992. (Cross-appeals concerning
counsel fees were filed by Realty and Home Depot.) While the
appeals were pending in the Appellate Division, the Planning
Board in December 1993 denied Realty's final site-plan-approval
application that included the proposed Home Depot store. No stay
of the trial court's judgment having been obtained, Realty and
Home Depot applied to the Law Division, purportedly pursuant to
Rule 1:10-3, for relief in aid of litigant's rights. On February
18, 1994, the Law Division issued a written opinion in which it
determined that the Planning Board's denial of site-plan approval
was inconsistent with its judgment invalidating the two
amendments to the Manalapan zoning ordinance. The Law Division
ordered that Realty's application for final site-plan approval,
including the Home Depot store, be approved. The effective date
of the Law Division's order was March 16, 1994, see R. 4:47, two
days after the date of the Appellate Division's judgment
reversing the Law Division and upholding the validity of the two
amendments.
The Court questions, but does not decide, whether the Law
Division had jurisdiction to enter the order of March 16, 1994.
Ante at ___ (slip op. at 9). If the Law Division's order were to
constitute a valid exercise of that court's jurisdiction, this
appeal would not be moot; a decision by this Court reversing the
Appellate Division would in that circumstance have the effect of
reinstating the Law Division's order granting final site-plan
approval, which would have protected the applicant from zoning
ordinance amendments for two years from the effective date of
site-plan approval. N.J.S.A. 40:55D-52.
Rule 2:9-1(a) controls proceedings on appeal prior to their
disposition and provides:
Except as otherwise provided by R. 2:9-3,
2:9-4 (bail), 2:9-5 (stay pending appeal),
2:9-7 and 3:21-10(d), the supervision and
control of the proceedings on appeal or
certification shall be in the appellate court
from the time the appeal is taken or the
notice of petition for certification filed.
The trial court, however, shall have
continuing jurisdiction to enforce judgments
and orders pursuant to R. 1:10 and as
otherwise provided. The appellate court may
at any time entertain a motion for directions
to the court or courts or agencies below or
to modify or vacate any order made by such
courts or agencies or by any judge below.
Accordingly, "[e]xcept to the extent of enforcement and except as
otherwise expressly provided for by rule, the ordinary effect of
the filing of the notice of appeal is to deprive the court below
of jurisdiction to act further in the matter under appeal unless
directed to do so by the appellate court." Pressler, Current
N.J. Court Rules, comment 1 on R. 2:9-1(a) (1995). The obvious
purpose of the Rules is to protect the subject matter of the
appeal from adverse action by any inferior court until the appeal
has been decided. Although limited by subsequent decisions, the
Court of Errors and Appeals opinion in Pennsylvania Railroad Co.
v. National Docks & New Jersey Junction Connecting Railway Co.,
54 N.J. Eq. 647 (1896), set forth the basic principle:
The entire purpose and object of the appeal
is to preserve such rights and property from
the ill effects of the decision that is
challenged. * * * In fine, the very essence
of the remedy by appeal is to prevent, for
the time being, the appellant from this
execution of the existing decree * * *. A
decree cannot be used detrimentally to the
appellant, pending appeal, for the plain
reason that such a use will, for every
practical purpose, defeat the appellate
procedure.
Ashby v. Yetter,
78 N.J. Eq. 173 (Ch. 1911), which acknowledged
that the National Docks holding had been qualified by later
cases, id. at 176-83, nevertheless reaffirmed that no order could
be entered by a lower court pending appeal "that would destroy or
impair the subject of the appeal." Id. at 188. The more recent
decisions appear to approve of or be consistent with the Ashby
court's formulation. See, e.g., In re Plainfield-Union Water
Co.,
14 N.J. 296, 302 (1954); Rolnick v. Rolnick,
262 N.J. Super. 343, 365-67 (App. Div. 1993); Carlucci v. Carlucci,
265 N.J. Super. 333, 335-43 (Ch. Div. 1993); Morrison v. Morrison,
93 N.J. Super. 96, 100-04 (Ch. Div. 1966); see also North Bergen
Action Group v. North Bergen Township Planning Bd.,
122 N.J. 567,
574 (1991) (observing that where appellant appealed to Appellate
Division from Law Division holding that Planning Board lacked
authority to grant height variances and simultaneously applied to
Board of Adjustment for same height variances, Appellate Division
possessed inherent authority to restrain Board of Adjustment
proceeding).
The Law Division unquestionably lacked jurisdiction to issue
an order granting final site-plan approval to a plan that
included the Home Depot store because the validity of that order
depended on the correctness of the Law Division's prior ruling
invalidating the two amendments to the Manalapan zoning
ordinance, the very issue that was pending on appeal before the
Appellate Division. The Law Division's order granting site-plan
approval, if it were valid when issued, would significantly have
"impair[ed] the subject [matter] of the appeal," Ashby, supra, 78
N.J. Eq. at 188, not only because it would have substantially
advanced the approval process but because it would have protected
Realty against future zoning amendments. N.J.S.A. 40:55D-52.
Nor did the provision in Rule 2:9-1(a) granting to a trial
court "continuing jurisdiction to enforce judgments and orders
pursuant to R. 1:10 and as otherwise provided" authorize the Law
Division to enter an order granting site-plan approval while the
appeal was pending. Rule 1:10 is entitled "Contempt of Court and
Enforcement of Litigants' Rights Related Thereto," and Rule 1:10-3 provides: "Notwithstanding that an act or omission may also
constitute a contempt of court, a litigant in any action may seek
relief by application in the action." Although the Law Division
characterized Realty's application as "a motion to enforce
litigant's rights," that characterization plainly was erroneous.
The motion to enforce litigants rights described in Rule 1:10-3
is addressed to a court's "inherent right to invoke coercive
measures designed to compel a recalcitrant party to comply with a
court order." S.S. v. E.S.,
243 N.J. Super. 1, 8 (App. Div.
1990). A proceeding to enforce litigant's rights "is essentially
a civil proceeding to coerce the defendant into compliance with
the court's order for the benefit of the private litigant. In
such proceeding the judge, before ordering any sanction, must
determine that defendant has the ability to comply with the order
[that] he has violated * * *." Essex County Welfare Bd. v.
Perkins,
133 N.J. Super. 189, 195 (App. Div. 1975).
The Law Division's purported exercise of its power pending
appeal to grant relief in aid of litigant's rights pursuant to
Rule 1:10-3 was manifestly inappropriate. Neither the Township
nor its Planning Board failed to comply with the court's prior
order. That order simply declared invalid the two zoning
amendments, and further declared that Home Depot was a permitted
use under the prior ordinance. The validity of that order was
the issue pending on appeal before the Appellate Division.
Having filed a notice of appeal from the Law Division's order,
the Planning Board could not properly have granted site-plan
approval to Home Depot without directly interfering with the
subject of its own appeal. The Law Division's attempted exercise
of its Rule 1:10-3 power to compel the grant of site-plan
approval was a nullity because the pendency of the appeal
divested the Law Division of jurisdiction to take any action
inconsistent with preserving the issues on appeal.
The Court appears to acknowledge that based on the time-of decision rule, Lizak, supra, 96 N.J. at 495, the zoning ordinance amendments adopted by the Township in December 1994, rather than the amendments upheld by the Appellate Division, will determine the eventual outcome of Home Depot's application. Ante at ___ (slip op. at 22). The validity of the most recent amendments is not before us, but their substantive content constitutes an added
reason why the Court should exercise caution in its evaluation of
the validity of the two original amendments.
The first of