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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3847-08T13847-08T1 PHYLISS GIBSON and MICHAEL POPONI, Plaintiffs-Appellants, v. TOWNSHIP OF MONROE PLANNING BOARD and PENN REAL ESTATE GROUP, INC., Defendants-Respondents, and WAL-MART STORES, INC., Defendant/IntervenorRespondent. ________________________________________________________________ Argued April 19, 2010 - Decided May 14, 2010 Before Judges Lisa and Alvarez. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-273-08. Jeffrey I. Baron argued the cause for appellants (Baron, Riefberg & Brennan, P.A., attorneys; Mr. Baron, of counsel; Jeffrey M. Brennan, on the brief). Leonard T. Schwartz argued the cause for respondent Township of Monroe Planning Board (Slotnick & Schwartz, attorneys; Mr. Schwartz, on the brief). Robert C. Shea argued the cause for respondent Penn Real Estate Group (R. C. Shea & Associates, attorneys; Mr. Shea of counsel and on the brief; Dina M. Vicari, on the brief). Scott G. Collins argued the cause for intervenor-respondent Wal-Mart Stores, Inc. (Riker

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Danzig Scherer Hyland & Perretti, LLP, attorneys; John M. Pellecchia, of counsel and on the brief; Mr. Collins and Scott L. Carlson, on the brief). PER CURIAM Plaintiffs Phyliss Gibson and Michael Poponi, residents of Monroe Township, opposed the development that is the subject of this appeal. After an adverse conclusion of the prerogative writ action they brought, they now appeal from the judgment in favor of defendants Township of Monroe Planning Board (Board) and Penn Real Estate Group, Inc. (Penn), affirming the Board's grant of subdivision and site plan approval and related waivers allowing Penn to construct a Wal-Mart Super Center. Plaintiffs argue: I. THE TRIAL COURT ERRED BY HOLDING THAT [PENN] HAD ESTABLISHED THE NECESSARY PROOFS TO OBTAIN ALL OF THE RELIEF REQUIRED BY ITS PROPOSED SITE PLAN. II. THE TRIAL COURT ERRED BY HOLDING THAT THE PROCEDURES UTILIZED BY THE PLANNING BOARD DURING THE HEARING ON [PENN]'S APPLICATION DID NOT DEPRIVE PLAINTIFFS OF DUE PROCESS. III. THE TRIAL COURT ERRED BY HOLDING THAT MAYOR GABIANELLI [SIC] WAS NOT BIASED AND PREDISPOSED TO GRANTING APPROVALS TO [PENN]. IV. THE TRIAL COURT ERRED BY HOLDING THAT [PENN]'S NOTICE MET THE REQUIREMENTS OF THE MUNICIPAL LAND USE LAW, N.J.S.A. 40:55D-1, ET SEQ., SUCH THAT THE PLANNING BOARD HAD JURISDICTION TO CONSIDER THE APPLICATION. V. THE TRIAL COURT ERRED BY HOLDING THAT THE RESOLUTIONS ADOPTED BY THE PLANNING BOARD WERE NOT DEFECTIVE. VI. THE TRIAL COURT ERRED BY DENYING PLAINTIFFS' MOTION TO REMAND THE MATTER TO THE PLANNING BOARD DUE TO A DEFECTIVE RECORD. VII. THE TRIAL COURT ERRED BY DENYING PLAINTIFFS' MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT. VIII. THE TRIAL COURT ERRED BY GRANTING THE PLANNING BOARD'S MOTION FOR PROTECTIVE ORDERS WHICH PRECLUDED PLAINTIFFS FROM DEPOSING MAYOR GABIANELLI [SIC] AND TIMOTHY KERNAN, PP. I On July 13, 2007, Penn filed an application for subdivision and consolidation of six existing lots in Monroe Township into two new lots, one 29.32 acres (Lot A) and the other 6.59 acres (Lot B). Penn also filed an application for preliminary and final major site plan approval, as well as any necessary variances or design waivers. It proposed to construct on Lot A: (1) a 199,798-square-foot Wal-Mart Super Center which was to include general merchandise retail space, a supermarket, an outdoor garden center and a seasonal sales area; (2) a separate 16,000-square-foot retail structure with eight tenants; (3) a 4396-square-foot bank; and (4) 1101 parking spaces. No development was proposed on Lot B, which contained an existing Assembly of God Church. Lot A and Lot B are situated in the Pinelands Protection Area. Lot A is also situated in the Township's regional
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growth commercial zone (RG-C), which, as amended in 2006, expressly permits planned large scale anchor store developments. Upon receipt of the Penn applications, the municipal planner, Timothy Kernan, issued a review letter concluding that no variances and just seven waivers were required. Penn then published public notice of the Board hearing. The Board conducted hearings on January 10 and 17, 2008. Penn presented testimony from its engineer, architect, planner, traffic engineer, and special architect dealing with topics including buffer plantings, the scope of the parking lot, the proposed bank's loading and garbage removal requirements, neighborhood traffic patterns, and the truck and other noise that would be generated by the proposed project. Penn also presented testimony from a Wal-Mart representative who discussed, among other things, the number and size of the trucks that would be making daily deliveries to the site. All of these professionals were cross-examined by plaintiffs' counsel. Additionally, plaintiffs' counsel presented testimony from his own experts, including a traffic and environmental engineer and a professional planner. Members of the public addressed the Board on both hearing dates. Several nearby residents requested that their residential street be turned into a cul-de-sac to preclude its use as a thoroughfare by future Wal-Mart customers. Other residents requested additional buffering, the relocation of a large sign, and limits on truck delivery hours. Changes were made to accommodate these requests. On January 17, 2008, the Board voted to grant Penn both subdivision and site plan approval, plus the requested design waivers. The decision was memorialized in nine resolutions adopted on January 24, 2008. On February 14, 2008, plaintiffs filed their complaint against the Board and Penn challenging the Board's decision. Wal-Mart later intervened. In July 2008, plaintiffs served subpoenas for the depositions of Monroe Township mayor and Board member Michael Gabbianelli, whom they alleged had been biased in favor of Penn's applications, and Kernan, whom they alleged had engaged in an improper "off-the-record" conversation with Gabbianelli at the January 17, 2009 hearing. The Board and Penn moved for protective orders to bar the depositions, which the court granted. In August 2008, plaintiffs moved for a remand due to alleged deficiencies in the record, which the court denied. On October 14, 2008, plaintiffs filed a motion for leave to amend their complaint to add the town council as a defendant, and to add a count alleging spot zoning. The court also denied that motion. After a bench trial on January 15, 2009, Judge Curio issued an oral decision affirming the Board's grant of approvals to Penn. Final judgment to that effect was filed on February 23, 2009. This appeal followed.

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II We first address the public notice issue. Plaintiffs argue in Point IV that the public notice was fatally defective because it failed to mention that the proposed large scale retail anchor store was to include a supermarket and operate twenty-four hours. We disagree. Public notice of a hearing regarding an application for development of a major subdivision is required by N.J.S.A. 40:55D-12a. Such notice shall state the date, time and place of the hearing, the nature of the matters to be considered and . . . an identification of the property proposed for development by street address, if any, or by reference to lot and block numbers[,] . . . and the location and times at which any maps and documents for which approval is sought are available[.] [N.J.S.A. 40:55D-11.] The critical element of a public notice is an accurate, common sense description of what the property will be used for under the application. Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 238-39 (App. Div. 2006). Although the notice need not be "exhaustive," the general public must be "fairly apprised" of the nature and character of the proposed development. Pond Run Watershed Assoc. v. Twp. of Hamilton Zoning Bd., 397 N.J. Super. 335, 351, 355 (App. Div. 2008); Perlmart, supra, 295 N.J. Super. at 237-38. If no notice is given or if the notice is in some way defective, this defect affects the jurisdiction of the board to act, and any action taken by the board in such cases is a nullity. Va. Constr. Corp. v. Fairman, 39 N.J. 61, 70 (1962); Twp. of Stafford v. Stafford Twp. Zoning Bd., 299 N.J. Super. 188, 196 (App. Div. 1997), aff'd, 154 N.J. 62 (1998). A board's decision regarding a question of law, such as whether it has jurisdiction over a matter, is subject to de novo review by the courts. TWC Realty P'ship v. Zoning Bd., 315 N.J. Super. 205, 211 (Law Div. 1998), aff'd, 321 N.J. Super. 216 (App. Div. 1999). The notice that Penn published and sent to residents within 200 feet of the proposed development advised that it had applied for permission to construct a large scale retail anchor store of approximately 199,798 square feet which includes an outdoor Garden Center and a "seasonal sales" area. The site will include a separate retail structure consisting of 16,000 square feet of floor area and a bank containing approximately 4,396 sf [sic] of floor area. Vehicle ingress and egress will be provided on both road frontages. The applicant proposes 1,101 parking spaces. Penn also listed all waivers it was seeking and noted that all plans were available at the Board's office for public inspection. Penn also specifically mentioned in its published notice that the elevation plans for the project had been prepared by Wal-Mart architects.

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No challenge was made to the Board's jurisdiction on public notice grounds during the hearings. The issue, however, was raised at trial. Judge Curio rejected the challenge, noting that the notice was considerably more detailed than those provided in Pond Run and Perlmart, and that both of those cases were distinguishable because Perlmart involved a conditional use and Pond Run involved a non-permitted use. She dismissed the notion that the notice was deficient because it did not specify that the larger retail structure was to be a Wal-Mart store. She concluded that a person of common intelligence would have a reasonably good understanding of what was meant by a large-scale retail anchor store. We agree. In Perlmart, supra, 295 N.J. Super. at 237-41, we found deficient a published notice that stated only that it was made "for the creation of commercial lots," but did not inform the public of the nature of the proposed use for these lots, i.e., a K-Mart shopping center, and also failed to advise that conditional use approval was also being sought. Likewise, in Pond Run, we enjoined the construction of a restaurant as part of a proposed mixed-use development, where the developer's published notice stated only that it was seeking certain variances for "age-restricted rental units and retail/office units," Pond Run, supra, 397 N.J. Super. at 346, but failed to advise that the development would also include a free-standing, 168-seat restaurant, a non-permitted use. Id. at 354-55. We are unpersuaded by plaintiffs' argument that the notice in this case contained the same deficiencies. Unlike the notices in Perlmart and Pond Run, Penn's notice specifically apprised the public of exactly what it intended to build, i.e., a cluster of two retail buildings and a bank. Both of these uses were permitted under the applicable zoning. The magnitude of the project was evident from the square footage of the proposed buildings and the number of proposed parking spaces. While no separate mention of a supermarket was made, a supermarket qualifies as a "retail" operation and it was not to be housed in a separate structure, but contained within the larger of the two proposed buildings. Although the proposed hours of operation for the various components of this shopping center were not included in the notice, this is the type of "exhaustive" detail not required pursuant to statute or under Pond Run. III Plaintiffs argue in point VI that the judge erred in denying their request to remand the matter to the Board due to an incomplete record. In a related argument in part of point VIII, plaintiffs contend that the judge erred in refusing to permit them to depose the participants of the conversation that was omitted from the record. We are unpersuaded by these arguments. The Board hearings were audiotaped by the Board and transcribed by a certified shorthand reporter hired by Penn.
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During the January 17, 2008 hearing, Mayor Gabbianelli and Kernan engaged in "several minutes" of private conversation. Following the hearing, plaintiffs' counsel requested a copy of either the Board transcripts or the audiotapes. However, after being advised of the Board's transcript fee and that Penn had already prepared its own transcripts, counsel instructed the Board's secretary to "hold up on" his request. Plaintiffs' counsel then requested a copy of Penn's transcripts, for use as the official transcription of the proceedings, in return for payment of one-half of the transcription fee. Penn agreed. However, at a May 2008 case management conference which took place before plaintiffs actually received the Penn transcripts, plaintiffs' counsel requested and received permission to perform a comparison of the Penn transcripts and a copy of the Board audiotapes. Plaintiffs' transcriber certified that (1) the copied audiotapes were of "extremely poor quality and entirely inaudible for significant periods of time"; (2) the Penn transcripts did not "follow in a precise verbatim fashion in all instances"; and (3) neither the Penn transcripts nor the audiotapes memorialized a colloquy which she had been told occurred between Gabbianelli and Kernan. In July and August 2008, plaintiffs served subpoenas for the depositions of Gabbianelli and Kernan. The Board and Penn moved for protective orders to bar the depositions. Kernan certified that during the conversation Gabbianelli had simply asked him about Penn's required COAH and recreation fee contributions, which Kernan subsequently discussed with the entire Board. Plaintiffs subsequently moved for a remand for a new hearing, arguing that the Board could not prepare an accurate, verbatim record of its hearing because the audiotape copies it had received were of poor quality and that the Penn transcripts could not be used as substitutes because they did not include the conversation between Gabbianelli and Kernan. The Board submitted opposing certifications from its secretary and transcriber that the original master audiotapes (from which the copies supplied to plaintiffs had been made) were not of poor quality and could be fully transcribed. At the September 26, 2008 hearing on these motions, counsel for the Board represented that accurate and complete transcripts could still be prepared from the original master audiotapes which were of better quality than the copies provided to plaintiffs, but that this would unnecessarily delay matters given the existence of the Penn transcripts. He doubted that the Board transcripts would include the Gabbianelli-Kernan colloquy. However, he asserted that depositions would be pointless because Kernan had already certified as to the substance of his conversation with Gabbianelli, which Kernan then discussed with the entire Board. Plaintiffs' counsel argued that the mere occurrence of an "off the record conversation" violated the Sunshine Law and provided a reason to void

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the Board proceedings. Judge Curio denied the motion to remand, ruling that the transcripts prepared by Penn would be the "certified, official transcripts for the Court's review in determining the merits of the [plaintiffs' c]omplaint." She noted that the parties had previously been "on track" to use these transcripts, that it had come as a surprise when plaintiffs suddenly called their accuracy into question, and that the only real criticism of the transcripts was that a certain offthe-record conversation was not transcribed. The judge also granted defendants' motions to quash, noting that the nature of the conversation plaintiffs sought to inquire about was not unusual or out of the ordinary or inappropriate in the context of a zoning or a planning board meeting. That is the sort of thing that professionals engage in at these types of meetings. And . . . if we were to reinvent the wheel or throw out every board action that involved commentary by a municipal professional with a Board member, none of these actions would stand. So I don't accept and am not persuaded by [plaintiffs'] argument that this is somehow in violation of the Sunshine Law, that would require the Court to intervene on that basis at this point. We find no mistaken exercise of discretion in these rulings. Municipal agencies "shall provide for the verbatim recording" of all zoning and planning board hearings, and shall furnish a transcript of any such proceedings on request to any interested party at that party's expense. N.J.S.A. 40:55D-10f. The Law Division's review of a planning board's decision must be based solely on the agency record. Willoughby v. Planning Bd., 306 N.J. Super. 266, 273 (App. Div. 1997). Where no record has been made or the record is deficient, a trial court may attempt to reconstruct the record with the aid of counsel. Scardigli v. Borough of Haddonfield Zoning Bd., 300 N.J. Super. 314, 322-23 (App. Div. 1997). If, however, the court cannot resolve the matter by stipulation of the record or by reconstruction, it must remand the case to the board with an order that it reconstruct the record. Ibid. If the board is unable to do so, it must then hear the testimony on the application anew. Ibid.; Carbone v. Planning Bd., 175 N.J. Super. 584, 586 (Law Div. 1980). Plaintiffs insist that a rehearing was required in this case because the recordings made by the Board are largely inaudible and do not contain the Gabbianelli-Kernan colloquy. According to plaintiffs, the court erred in permitting the Board to rely upon the Penn transcripts because the Board had a non-delegable obligation to provide the official record of the hearings. Alternately, they maintain that the Penn transcripts are themselves fatally deficient because they too do not contain the Gabbianelli-Kernan colloquy. Plaintiffs also contend that the court

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erred in refusing to permit them to depose Gabbianelli and Kernan. Contrary to plaintiffs' representations, they never established that the original master recordings made by the Board were inaudible and incapable of full transcription; rather, they simply asserted that the copies reviewed by their transcriber had some unspecified inaudible sections. Also, because it is permissible for hearing records to be reconstructed from notes and minutes and by stipulation, we reject plaintiffs' argument that Penn's transcripts could not be adopted as the official record in this case. Plaintiffs have not identified any errors in the transcripts indicative of manipulation of the record by Penn. Finally, we agree that the omitted conversation was unremarkable, was not a material deficiency in the record, and did not warrant depositions. IV Plaintiffs argue in point III that the judge erred in concluding that Mayor Gabbianelli was not biased and predisposed toward granting the approvals. In a related argument in part of point VIII, they contend the judge erred in refusing to permit them to depose Gabbianelli regarding his interest in the project. Plaintiffs rely on several comments by the mayor. At some unknown point during the pendency of Penn's applications, Gabbianelli wrote the words "2007 Projects" on a white marker board outside his office. Under this heading, he listed six or seven projects with what appeared to be status notations. At the top of the list he wrote "Walmart - Kernan/Chuck - Tim to push." During the Board hearing, in follow-up to testimony that the proposed drainage basin could handle a 100 year storm, plaintiffs' counsel asked Penn's engineer how the basin would perform assuming that "we have [a] 100 year storm on Tuesday and two hours later we have another 100 year storm, and then three hours later we have another 100 year storm?" Mayor Gabbianelli interjected: "Build an ark, brother, that's all I have to say." The engineer then responded that even with successive major storms the basin would perform better than the existing conditions on the site. During the public comment portion of the hearing, plaintiffs' counsel sought to cross-examine a member of the public who had just spoken in favor of the project. Mayor Gabbianelli inquired of the Board's counsel whether such examination was legal and proper. Penn's counsel interjected that Penn had no objection. The Board's counsel agreed that plaintiffs' counsel could proceed with his questioning, which he did, at length. After the requested approvals were granted, a news article appeared in the February 23, 2008 edition of the
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Gloucester County Times regarding the litigation. The article stated that Mayor Gabbianelli had supported the project because it would bring 400 jobs and $450,000 in tax money to the town. The mayor was quoted as saying, "[w]e've been encouraging it since we met them five years ago. It's what the town needs, it's the proper thing for the town and I hope we can go to court tomorrow." The judge found these incidents insufficient to establish a prima facie showing of bias. In her final decision declining to invalidate the approvals based on mayoral bias, she incorporated her earlier findings on this issue and stated that nothing in her review of the extensive record had changed her earlier conclusion that no bias had been demonstrated. "[A] hearing before an administrative tribunal acting quasi-judicially implies that the factfinder 'shall be bound in good conscience to consider the evidence, to be guided by that alone, and to reach his conclusion uninfluenced by extraneous considerations.'" Kramer v. Bd. of Adj., 45 N.J. 268, 280 (1965) (quoting Pa. R.R. Co. v. N.J. State Aviation Comm'n, 2 N.J. 64, 70 (1949)); accord Baghdikian v. Bd. of Adj., 247 N.J. Super. 45, 48 (App. Div. 1991) (local board's quasi-judicial proceedings must be governed with "spirit of impartiality"). Except in limited circumstances, a person challenging the decision of a local board "may not inquire into the mental processes surrounding the decision of a board member." Catalpa Inv. Group, Inc. v. Franklin Twp. Zoning Bd., 254 N.J. Super. 270, 275 (Law Div. 1991). The interest which will disqualify a member of a governing body acting in a quasi-judicial capacity is a "personal or private one, and not such an interest as he has in common with all other citizens." Kramer, supra, 45 N.J. at 282. An appellate court will not disturb the factual findings and legal conclusions of a trial judge unless it is convinced that "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (internal quotation marks omitted). The judge's findings are supported by the record. Plaintiffs' contention that the notation on Gabbianelli's message board meant Kernan had been charged by the mayor with "pushing" Penn's applications through to approval was speculation. The mayor's single flippant comment regarding building an ark and his question regarding the propriety of cross-examining a member of the public did not reveal "animus" toward plaintiffs' counsel. The postapproval statement made by Gabbianelli to the Gloucester County Times was consistent with his role as mayor. The interests he expressed in bringing Wal-Mart to Monroe Township were ones he shared with the local townspeople. V
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Plaintiffs argue in point II that the judge erred in finding that they were not improperly precluded from crossexamining certain testimony during the hearing. In particular, plaintiffs complain that after the public portion was closed, Penn's engineer responded to inquiries by a Board member about the detention basin, but that their counsel was not permitted to cross-examine the engineer on that additional testimony. This contention is totally lacking in merit for the simple reason that plaintiffs' counsel did not request additional cross-examination. Plaintiffs also argue that they were improperly denied the opportunity to cross-examine Kernan regarding his conversation with Gabbianelli. Again, plaintiffs observed the conversation when it occurred, but did not then raise the issue or request cross-examination. VI Plaintiffs argue in point I that the judge erred in affirming the Board's determination that mere waivers, and not variances, were required in connection with Penn's request that it not be required to provide a loading space and a trash enclosure for the proposed bank. We reject this argument. Monroe Township's land management ordinance consists of seventeen articles, including Article X entitled "Plat Detail and Data," Article XIII entitled "Design, Performance and Evaluation Standards," and Article XIV entitled "Zoning." Within Article XIII is a separate section,

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