Suit: Rezoning violates constitutional rights
Stop & Shop claims rezoning limits ability to compete
BY LINDA DeNICOLA
Staff Writer

Stop & Shop filed a civil action on July 11 in U.S. District Court against Ocean Township, its mayor and council, as well as the Planning Board.

The complaint and demand for a jury trial alleges that a recent move by the township to rezone a 31-acre tract on the corner of Route 35 and Deal Road where a developer wants to build an 80,000-square-foot supermarket, was arbitrary and capricious and imposes costly burdens on a single township property owner.

Township and Planning Board Attorney Martin Arbus said he is confident that the municipality had the right to change the zoning.

“There is a substantive amount of case law that permits that,” he said.

He added that the lawsuit raises constitutional issues that he will have to review.

“There are a lot of issues that are not typical in zoning law matters,” he said.

Mayor William Larkin said that because it is pending litigation, he could not comment on the suit. Meanwhile, the July 25 Ceruzzi Holdings hearing was postponed until further notice.

Ceruzzi is the applicant and would develop the property.

As for the constitutional issues, the eight-count complaint alleges that the township in effect condemned the property without just compensation and alleges that the rezoning is in violation of the U.S. and New Jersey constitutions.

The suit also alleges that the size restrictions, which limit the size of any one store to 30,000 square feet, bars Stop & Shop from opening a food store that can compete with the Super Foodtown across Route 35. It alludes to the dormant commerce clause that prohibits state and local laws that are “protectionist” and burden out-of-state competitors while providing a competitive benefit to in-state interests.

The plaintiffs are Stop & Shop Companies Inc., a Delaware corporation that has its principal place of business in Quincy, Mass.; Ocean 35 Acquisitions LLC, also a Delaware corporation, formed in March 2001 for the purpose of acquiring the property; and Ceruzzi Holdings LLC, a Delaware corporation with its principal place of business in Fairfield, Conn.

The fourth count alleges that the rezoning singles out the parcel for less-favorable treatment than neighboring ones, thereby violating the plaintiffs’ constitutional rights, the state Municipal Land Use Law and state and federal due process.

The suit states that the rezoning ordinance imposes enormously burdensome and costly exactions on the property. They include the obligation to set aside land for, and construct, public road improvements; to set aside land for and construct plazas and seating areas, and to develop those plazas with fountains or other water treatments; and to locate parking so that it is not visible from Route 35 or Deal Road, which the suit says effectively requires that some, if not all, parking be located underground.

The plaintiffs charge that the change of zoning was not motivated by a legitimate concern over health and safety, or to further the master plan, or even over a desire to reduce the amount of development of the site, but rather simply to block the plaintiffs, or anyone else, from developing a food store on the site that would compete with the Azzolina Foodtown and other food stores in the township.

The suit also alleges that everything that went on over the past two years was a delaying tactic in order to provide the township with significant time to undertake efforts to rezone the property at great expense to the litigants, violating their right to due process.

The rezoning ordinance became effective on the last day before the plaintiffs were scheduled to put on their final witness and rest their application before the Planning Board after many hearings and much controversy.

The rezoning changes the size and configuration allowable on the 31-acre parcel on the northeast corner of Deal Road and Route 35. It calls for a “village square” development district that will include retail, office and residential uses and keep at least one-forth of the tract as open space.

According to the ordinance, the official zoning map would be changed to remove the commercial development option and include a change in the underlying zoning from a combination of office/retail to a community mixed-use district, which would encourage a variety of uses with storefronts at a pedestrian scale, a residential component, plazas and open spaces for public gatherings and interaction. The parking areas would include landscaping and seating areas, decorative lighting and pathways to create a streetscape.

The ordinance allows for a maximum building coverage of 14 percent with a maximum building height of 35 feet and a maximum of 40 percent of the total square footage on the second story.

Councilman Christopher Siciliano said at the time that the rezoning ordinance was introduced that the council tried to cover all of their bases and make sure that they weren’t denying the owner the right to build on the site.

“We’re not denying him [Ceruzzi] the right to build there. We have actually approved up to 225,000 square feet with the two-story design, provided they can meet the parking variance.”

Faith Weiner, director of public affairs for Stop & Shop. declined to comment on the constitutional issues raised by the lawsuit, saying they speak for themselves. She did comment on the filing of the complaint.

“We’re very disappointed that it came to this, but we worked in good faith on a proposal to bring a great project to the community and feel this is what we need to do.”

Kenneth E. Pringle of Pringle Quinn Anzano, Belmar, attorney for the plaintiffs, declined to comment on the lawsuit.