Monmouth Commerce Center Complaint

MON-L-001585-20 05/21/2020 11:08:14 AM Pg 1 of 35 Trans ID: LCV2020918907
SILLS CUMMIS & GROSS P.C.

Meryl A. G. Gonchar, Esq. (Atty. ID 022571981)
Mark E. Duckstein, Esq. (Atty. ID 030711987)
One Riverfront Plaza
Newark, New Jersey 07102
(609) 227-4639
Attorneys for Plaintiff

Monmouth Commerce Center, LLC
MONMOUTH COMMERCE CENTER, SUPERIOR COURT OF NEW JERSEY

LLC, LAW DIVISION – MONMOUTH COUNTY
DOCKET NO.
Plaintiff,
Civil Action
v.
COMPLAINT IN LIEU OF
HOWELL TOWNSHIP PLANNING PREROGATIVE WRITS
BOARD, HOWELL TOWNSHIP, and
THE HOWELL TOWNSHIP COUNCIL,
Defendants.
Plaintiff, MONMOUTH COMMERCE CENTER, LLC (“Monmouth Commerce”), by its
attorneys, Sills Cummis & Gross P.C., as and for its Complaint In Lieu of Prerogative Writs
against defendants, Howell Township Planning Board (“Board”), Howell Township
(“Township”), and the Howell Township Council (“Township Council”), alleges as follows:
THE PARTIES
1. Plaintiff Monmouth Commerce is a limited liability company of the State of New
Jersey with an address of 1800 Water Works Road, Old Bridge, New Jersey 08857. Monmouth
Commerce is the contract purchaser of the property located at the intersection of Randolph Road
and Oak Glen Road, Howell, New Jersey 07731, and designated on the tax maps of Howell
Township as Block 5, Lots 2 and 3 (“Property”).

2. Defendant Board is the planning board of Howell Township, created pursuant to
the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. (“MLUL”), with an address
of the Howell Township Municipal Building, 4567 Route 9 North, 2nd Floor, Howell, New Jersey
07731.
3. Defendant Township is a body corporate and politic situated in Monmouth
County with offices at Howell Township Municipal Building, 4567 Route 9 North, Howell, New
Jersey 07731.
4. Defendant Township Council constitutes a body politic duly authorized under the
laws of the State of New Jersey, and serves as the governing body of the Township.
SUMMARY
5. Monmouth Commerce submitted an application (the “Application”) to the Board
for preliminary and final site plan approval, several design waivers/exceptions, and extended
vested rights to develop the Property with nine (9) warehouse buildings totaling approximately
1,242,102 square feet, along with accessory office use and associated improvements in four
phases. Warehousing is a permitted use of the Property, and the Application met all minimum
setbacks and coverage limitations, as well as other bulk requirements such as building height and
minimum number of parking and loading spaces.
6. After ten (10) hearings, the Board denied the site plan application based on
dubious pretextual concerns about the safety of the access to the Property, despite clear and
uncontroverted evidence establishing the safety of the access.
7. The Board improperly denied design waivers for the landscape screening of the
recycling areas, loading spaces located in the front yard, and sidewalk notwithstanding that it
satisfied the statutory standards to entitle it to the design waiver relief sought. Monmouth
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Commerce offered to comply with the design requirements if the Board did not believe the
requested waivers should be granted.
8. The Board erroneously interpreted the Township Land Use Ordinance
(“Ordinance”), which is Chapter 188 of the Administrative Code of the Township of Howell
(“Township Code”), finding that parking trucks or truck trailers constitutes “outdoor storage”
and to require a variance for “outdoor storage” that was not located in a screened rear yard. The
Board arbitrarily denied the contrived variance even though neither the trucks and trailers nor
any materials inside of the trucks and trailers would be visible from outside the Property.
9. The Board failed to act on a variance pursuant to N.J.S.A. 40:55D-70.c. to use
existing vegetation within the 50-foot buffer rather than tearing out healthy plantings and
planting new landscaping. The Board also failed to act on requested design waivers relating to
the lighting, parking lot landscaping, scale of the tree management plan, curbing without
bollards, signage, and parking lot screening, and on Monmouth Commerce’s request for
extended vested rights. The evidence established that all of the requested relief should have be
granted, and, in any event, the Board was without the authority to select what relief among the
requested relief upon which to act.
10. Monmouth Commerce proposed to plant 1,091 new trees and elected to make a
contribution to the Township Tree Fund in the amount of $2,509,990, in accordance with Article
XXII of the Township Code, the Township Tree Removal and Replacement Ordinance (“Tree
Replacement Ordinance”), referred to as the Woodlands Management Ordinance in the
Resolution. The Board erroneously and improperly interpreted and applied the Tree
Replacement Ordinance to disallow the financial contribution in lieu of additional plantings. The
Board made this decision in an effort to discourage the proposed development entirely or to force
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Monmouth Commerce to develop less of the Property than what is permitted under the Land Use
Ordinance and in a manner different than it has applied that Ordinance to other applicants.
11. Pursuant to the MLUL, the Township was permitted to charge Monmouth
Commerce an application fee representing the administrative costs associated with the
Application and the costs of tuition for land use courses for the Board members. However, the
Township charged Monmouth Commerce, totaling $204,963, an amount which far exceeds the
quantum of application fees as is permitted by the MLUL. As such, Chapter 139 of the
Township Code establishing the application fees is in violation of the MLUL, both on its face
and as applied to Monmouth Commerce.
12. For these reasons, Monmouth Commerce asserts that the Board’s denial of the
Application was arbitrary, capricious and unreasonable, and should be reversed or vacated, and
that a portion of the fees paid to the Township should be required to be refunded.
FACTUAL BACKGROUND
A. The Subject Property.
13. The Property is located in the SED (“Special Economic Development”) Zoning
District of the Township.
14. According to the Ordinance, the purpose of the SED Zoning District is to provide
for a variety of economic development opportunities in areas of the Township while rail and
highway infrastructure are readily available.
15. Warehousing is a permitted use in the SED Zoning District in which the Property
is located.
16. The zoning for the Property has been in place for at approximately 24 years, and
warehousing has been a permitted use during that time. Moreover, while the Application was
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pending, the Board voted (at its December 5, 2019 meeting) in favor of recommending to the
Township Council a Master Plan Reexamination Report and a Land Use Element Amendment
that maintained the Property in the SED Zoning District and recommended no changes to the
permitted uses or bulk standards in the zone.
17. Industrial uses, including warehouse uses, are existing or have been approved in
the SED Zone in which the Property is located, including a warehouse development approved by
the Board but not yet built across the street from the Property at 41 Randolph Road.
B. Monmouth Commerce’s Application for Land Use Approvals.
18. On or about October 19, 2018, Monmouth Commerce submitted the Application
to permit a phased commercial warehouse development consisting of eight warehouse buildings
and one office building totaling approximately 1,242,102 square feet, along with accessory office
use and associated parking, loading, landscaping, signage, and other site improvements to be
developed in four phases. Monmouth Commerce revised the Application to eliminate the office
building and replace it with a ninth warehouse building before the first Board hearing,
maintaining the total square footage of the proposed development.
19. At the time of submission of the Application, the Board’s planner identified the
need for one variance pursuant to N.J.S.A. 40:55D-7(c) from Section 188-63 of the Ordinance to
permit Monmouth Commerce to maintain existing trees along a portion of the property frontage
rather than tearing out those trees to plant new landscaping in order to create the required 50-foot
buffer plantings.
20. The possible need for a second variance pursuant to N.J.S.A. 40:55D-70(c) from
Section 188-79.B.(3)(b) of the Ordinance was identified during the course of the hearings on the
Application, in order to permit truck trailer parking in the side yard of the Property. The Board
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ultimately determined that truck and/or truck trailer parking constitutes “outdoor storage,” and
while outdoor storage is a permitted accessory use in the SED Zone, it is required to be located
in a screened rear yard. To the extent the truck and/or truck trailer parking was not in a screened
portion of the rear yard, the Board required Monmouth Commerce to secure a variance.
21. The design waivers that the Board planner identified were related to the site’s
lighting, screening of the recycling areas, parking lot landscaping and screening, loading within
the front yard, a tree management plan at a different scale than required in the Ordinance,
bollards, sidewalks, and signage.
22. The Application complied with all of the minimum setbacks and coverage
limitations in the SED Zoning district, as well as other bulk requirements such as building height
and minimum number of parking spaces.
23. The southerly boundary of the Property is a regulated C-1 waterway and, as a
result, the Application included a buffer on the Property that met or exceeded the minimum 300-
foot buffer required by the New Jersey Department of Environmental Protection (“NJDEP”).
24. The Application included five (5) driveways, all of which were located along the
Randolph Road frontage. Although no Township Code provision prohibits driveways on Oak
Glen Road or Brook Road, Monmouth Commerce located all driveways along Randolph Road
because Township representatives requested it to do so.
25. Based on the extent of the Property frontage on Randolph Road, ten (10)
driveways are allowed on Randolph Road pursuant to the Township Code.
26. The Application proposed extensive off-site roadway and utility improvements
well beyond Monmouth Commerce’s fair share contribution.
27. The proposed off-site roadway improvements include improving the full frontage
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of the Property along Randolph Road, including a right-of-way dedication and new curbing and
pavement; paving the full frontage of the Property along Oak Glen Road and Brook Road; a
widening to provide a third, full-travel lane on Oak Glen Road; and installation of a traffic signal
and intersection reconstruction, including widening approaches, to the intersection of Randolph
Road and Lakewood-Farmingdale Road (Route 547) (the latter signalization and intersection
improvements subject to Monmouth County Planning Board jurisdiction and approval), among
others.
28. The signalization and roadway improvements at the intersection of Randolph
Road and Route 547 were proposed because the intersection is currently failing (level of service
F) and levels of service at the intersection are projected to deteriorate substantially based upon
background growth and other development in the area even if no development is undertaken at
the Property.
29. Upon information and belief, neither Monmouth County nor any other
governmental entity having jurisdiction have budgeted the cost to reconstruct the failing
intersection of Randolph Road and Route 547 or install a traffic signal.
30. Monmouth Commerce proposed to construct all of the proposed off-site roadway
improvements, including the Randolph Road and Route 547 intersection improvements and
signal, as part of the first Phase of the project.
31. Monmouth Commerce proposed to construct the stormwater management
improvements and detention basin for the entire Property as part of the first Phase of the project.
32. The Application also proposed to make a contribution to the Township Tree
Fund in the amount of $2,509,990 pursuant to the Tree Replacement Ordinance, because the
30,792 trees otherwise required could not be located on the site as proposed in the Application.
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Monmouth Commerce proposed to pay the contribution to the Township Tree Fund as the trees
are removed as each Phase of the project is constructed, as well as planting 1,091 new trees.
C. The Board Hearings Regarding the Application.
33. The Board held ten (10) hearings on the Application on May 9, 2019; June 6,
2019; June 20, 2019; July 29, 2019; September 19, 2019; October 10, 2019; November 7, 2019;
December 5, 2019; January 16, 2020; and January 30, 2020.
34. An objector group made up of local residents by the name of Howell for Open
Land and Preservation of the Environment (“HOPE”), appeared at and participated in the
hearings represented by counsel and presented a traffic engineer. Other residents also
participated in the hearings.
35. Monmouth Commerce presented witnesses, accepted by the Board as experts, in
the fields of engineering, architecture, traffic engineering and planning, and presented a
representative of Monmouth Commerce, Henry Guindi, who testified regarding operations,
including the necessity of the proposed trailer parking spaces.
36. Steve Cattani, a licensed professional engineer, testified that, with the exception
of maintaining existing vegetation in the existing buffer rather than installing a new buffer, the
project as designed complies with all bulk, area, and yard standards in the Ordinance. He
testified, inter alia, that the stormwater management system and plan meet all applicable
standards, including those of NJDEP, and that the Application meets or exceeds NJDEP
standards with regard to wetlands, C-1 stream and other buffers. Mr. Cattani testified that
Monmouth Commerce would install new sanitary sewer and water lines to serve the site and
surrounding properties, and regarding the manner in which all required utilities will be provided.
37. Mr. Cattani testified in support the requested design waivers requested pursuant
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to N.J.S.A 40:55D-51, including why a sidewalk was not proposed and why the project required
more signage than permitted. He also testified that the site could not accommodate anywhere
near the number of trees required by the Tree Replacement Ordinance.
38. Rick Platt, a registered architect, testified about the design of the buildings,
compliance with building code requirements, and in support of the design waiver from
Ordinance Section 188-226.F. to establish that bollards would not be needed at the entrances
because the project proposes concrete base and steel columns inside the glass entry doors spaced
close enough to stop any car that could drive through them.
39. Justin Taylor, a licensed professional engineer and traffic operations engineer,
testified about proposed traffic generation and the off-site traffic impacts, internal circulation,
and how the designed access to the Property will operate in a safe and efficient manner. He
testified regarding proposed off-site improvements, in particular the proposed traffic signal at the
intersection of Randolph Road and Route 547, how installation at that intersection will improve
existing conditions, and the need for approval by the Monmouth County Planning Board for the
proposed signal and related off-site improvements.
40. Elizabeth McManus, a licensed professional planner, provided planning
testimony in support of the variance and waiver relief sought. Ms. McManus provided testimony
in support of the buffer variance that satisfied the statutory criteria, and in support of the design
waivers to demonstrate the hardship or impracticability necessary to entitle Monmouth
Commerce to each of the requested relief. Ms. McManus offered her professional opinion that
neither trailer nor truck parking constitute “outdoor storage,” as contemplated in Section 188-
79.B.(3)(b), and therefore no variance is required. Nevertheless, she provided testimony to meet
the required statutory proofs, if a variance were required, regarding the location of the trailer
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parking and alleged lack of screening. Among other proofs, she testified that the variance should
be granted because substantial buffering screened the parking and the location was appropriate
relative to the design.
41. Before the Board’s January 30, 2020, hearing, Monmouth Commerce modified
the Application by changing trailer parking spaces to truck parking spaces, and by limiting the
time period in which trucks could park in the spaces from 96 hours to 24 hours.
42. At the Board’s January 30, 2020 hearing, Monmouth Commerce indicated that if
the Board were not inclined to grant the buffer variance, Monmouth Commerce would withdraw
that variance request, remove the existing trees, and install the buffer. Monmouth Commerce
also advised of its willingness to eliminate the requested design waivers with regard to the
sidewalks, lighting levels, bollards, parking lot trees, recycling area screening, and signage.
43. At the Board’s January 30, 2020 hearing, without acknowledging or addressing
the proposed modifications and after denying Monmouth Commerce’s requested thirty-day
adjournment to prepare concept plans requested by the Board that evening, the Board denied the
Application (the “Denial”).
44. The Board memorialized the Denial in a resolution of memorialization, which it
adopted on April 2, 2020 (the “Resolution”), and published a notice of decision on April 8, 2020.
45. In connection with the Application, Monmouth Commerce submitted to the
Township application fees totaling $204,963 as well as escrow fees totaling $122,999.93, for a
total payment, along with fees for the technical review committee meetings and special meetings,
of $331,362.93.
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COUNT I
WRONGFUL DENIAL OF SITE PLAN APPROVAL
46. Monmouth Commerce repeats and re-alleges the allegations set forth in
paragraphs 1 through 45 above as if set forth at length herein.
47. The Application sought preliminary and final site plan approval to develop the
Property with a permitted warehouse use in a design that complied with minimum setbacks
requirements and coverage requirements in the SED Zoning District, as well as the height limits
for each of the nine (9) proposed buildings.
48. Monmouth Commerce demonstrated through competent and credible expert
testimony that all necessary utilities were available to service the development, including water,
sanitary sewers, electricity, and communications, and that the stormwater management system
had been designed in accordance with all applicable Township Code, statutory, and regulatory
standards.
49. Monmouth Commerce, through its professionals, provided competent and
credible expert testimony on the record to meet its burden of proof to warrant the granting of
preliminary and final site plan approval.
50. Monmouth Commerce presented uncontroverted expert testimony in support of
the variance and waiver relief requested, and in any event offered to withdraw one of the two
variances and the majority of the requested design waivers.
51. Even though the use was permitted and the square footage of Monmouth
Commerce’s development was below the size of the improvements that it was allowed to
develop, the Board heavily focused on the traffic impact of the development. Seven of the ten
hearings were spent, at least in part, discussing traffic and questioning Monmouth Commerce’s
traffic expert and HOPE’s traffic expert, (including three hearings that were devoted solely to
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traffic issues).
52. The Board’s traffic concerns were related to both existing traffic conditions and
anticipated traffic to be generated from the development, and were not limited to the safety of the
ingress and egress of the site.
53. The evidence established that the access, ingress, and egress to the site was safe.
54. The testimony established that each of the five proposed driveways would
operate at a level of service of “C” or better regardless, whether or not a traffic signal is installed
at the intersection of Randolph Road and Route 547.
55. The Board and the public expressed concerns about trucks driving on Oak Glen
Road and Brook Road, notwithstanding that there is no prohibition against trucks driving on Oak
Glen Road or Brook Road under the Township Code or any other applicable law or regulation.
56. In order to address those concerns, Monmouth Commerce proposed to prevent
trucks from making a right turn out of the site by adding signage at the exits prohibiting such
trucks movements and installing other physical impediments to prohibit trucks from making right
turns. Monmouth Commerce incorporated those turn movement restrictions into the plans being
considered by the Board.
57. Testimony established that installation of the proposed traffic signal at the
intersection of Randolph Road and Route 547 will result in a maximum queue of 197 feet, while
the closest driveway to the intersection is proposed to be approximately 1,400 feet away. The
testimony established that this maximum queue would exist for only five percent (5%) of the
peak hour or 0.35 percent (0.35%) of the day, with a shorter queue for the remaining 99.65
percent (99.65%) of each day.
58. The sole basis asserted by the Board for its denial of site plan approval was a
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purported concern regarding the Randolph Road and Route 547 signalized intersection design
impact on the project driveways. At the January 30, 2020 hearing, the Board traffic engineer
stated that he could not make a determination as to the safety of the project until he has an
opportunity to review the concept plans for the proposed signalized intersection, notwithstanding
that the design was within the exclusive jurisdiction of Monmouth County.
59. Monmouth Commerce’s design of the intersection plan, if submitted as requested
by the Board’s traffic expert, would be based upon the same information and assumptions that
resulted in the estimated queue length of 197 feet during the peak hour, with the end of that
queue approximately 1,200 feet from the nearest driveway.
60. At the January 30, 2020 hearing, Monmouth Commerce requested an
adjournment of thirty (30) days to prepare the concept plan requested by the Board with respect
to the signalized intersection.
61. The Board denied Monmouth Commerce’s request for a thirty (30) day
adjournment notwithstanding that the Board previously had granted the objector a comparable
adjournment in November 2019.
62. The Board based the Denial upon the anticipated traffic and other off-site
impacts of the proposed use and the size of the development -- notwithstanding that the use was
permitted as was the size of the proposed development.
63. In the Resolution, the Board stated, at page 71, that it had reviewed the
application and considered “the impact of the proposed application on the Township and its
residents to determine whether it is in furtherance of the Municipal Land Use Law; and having
considered whether the proposal is conducive to the orderly development of the site and the
general area in which it is located pursuant to the land use and zoning ordinances of the
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Township of Howell.” Such consideration constitutes an impermissible basis for denial.
64. Defendant Board’s denial of the site plan application was based upon
impermissible and makeweight grounds, was against the substantial weight of the evidence,
constitutes an ultra vires act of the Board’s delegated authority, and was arbitrary, unreasonable,
and capricious.
WHEREFORE, Plaintiff, MONMOUTH COMMERCE CENTER, LLC, respectfully
requests that this Court enter judgment in favor of Plaintiff as follows:
a. Overturning and reversing the Denial and approving the Application;
b. Awarding Plaintiff its attorneys’ fees and costs of suit; and
c. Granting such other and further relief as the Court deems appropriate.
COUNT II
WRONGFUL DENIAL OF DESIGN WAIVERS
66. Section 188-32.C.(6) of the Ordinance provides in pertinent part that “all outdoor
recycling storage areas shall be screened by a solid uniform wall or fence. Landscaping shall
also be provided around any outdoor recycling storage area in an aesthetically pleasing manner
due to extensive buffering.”
67. Monmouth Commerce proposed to screen the recycling storage area with only a
fence and sought a waiver of any obligation to provide landscaping.
68. The testimony established that the recycling storage areas were not visible from
outside of the Property and, due to their location near the loading areas, were largely screened
even from the breaks in the buffering for the driveway entrances.
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69. The testimony established that it would be difficult and impractical to plant
landscaping proximate to the loading areas.
70. Monmouth Commerce indicated that it would withdraw this waiver request if the
Board did not believe the waiver should be granted.
71. Section 188-106.I.(1) of the Ordinance provides that “no off-street loading and
maneuvering area shall be located in any front yard nor require any part of a street.”
72. The Application included a request for a waiver from Section 188-106.I.(1) to
permit loading within the front yard in an area of approximately 60-foot along the northeastern
property line, at the corner of Randolph Road and Oak Glen Road, where the loading is between
the building and the street. The size of the proposed loading area was de minimus, as it
constitutes less than five percent (5%) of the frontage of the Property.
73. The testimony and evidence established that in the area where the relief from
Section 188-106.I.(1) was requested in order to permit loading and maneuvering, there is a 50-
foot buffer, located between the loading area and the street, which provided a screen of the
loading area. The testimony and evidence further established that the loading area is located
beyond the required 60-foot front yard setback, and is in an area that is a second front yard
therefore making it impractical to comply with this provision.
74. Section 188-225.G. of the Ordinance provides that all lots must have a private
walkway access to a public sidewalk within the right-of-way, and requires all development and
redevelopment to provide public sidewalks along the frontages of the property.
75. Monmouth Commerce sought a waiver from Section 188-255.G., and in support
thereof, provided evidence to establish that sidewalks are not appropriate for the project because:
(i) the proposed use does not require a sidewalk, (ii) pedestrians are discouraged from walking to
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the site with trucks coming onto the property, and (iii) the sidewalk would not connect to
anything because the surrounding area does not have sidewalks.
76. Testimony also established that unnecessary sidewalks would increase
impervious coverage and increase the number of trees that would be removed from the site.
77. As it had with regard to the landscape requirements to screen the recycling
storage areas, Monmouth Commerce offered to comply with the requirement to provide
sidewalks, but put on proofs in support of the design waiver relief.
78. Monmouth Commerce demonstrated through competent and uncontroverted
expert testimony that satisfied the statutory standards to allow the Board to approve the design
waiver relief sought. Therefore, the Board’s denial of these design waivers was against the
substantial weight of the evidence, was improper, was an ultra vires the Board’s delegated
authority, and was arbitrary, capricious and unreasonable.
a. Overturning and reversing the Denial and granting the Application;
COUNT III
ERRONEOUS ORDINANCE INTERPRETATION
80. Section 188-79.B.(3) of the Ordinance permits the following accessory uses in
the SED Zoning District, as relevant here:
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(a) Accessory uses customarily incidental and ancillary to a permitted use.
(b) Outdoor storage shall be permitted in a screened rear yard only.
81. The Application, as filed, included a double-row of 142 trailer parking spaces.
82. The testimony established that the trailer parking spaces would be used to
accommodate trailers waiting for a loading dock to become available or waiting for a cab to take
the trailer away. The trailers were proposed to be parked for no longer than 96 hours. The
testimony established that trailers would not be stored on the site long-term, and there would be a
turnover as the trailers would be returned to the port or other destination.
83. No goods or materials were proposed to be stored unenclosed outside the
warehouses.
84. The testimony demonstrated that the transport of goods by truck is an integral
part of the permitted warehouse use and the proposed trailer parking is similarly an integral part
of the permitted principal warehouse use.
85. Alternately, if the proposed trailer parking is considered a separate accessory
use, the evidence established that it is permitted as an accessory use “customarily incidental and
ancillary to a permitted use.”
86. The term “outdoor storage” is not defined in the SED Zone Ordinance.
87. However, Section 192-18 of the Township Code provides:
Outdoor Storage Restricted.

No person shall leave, store or place upon any property, for a period in excess of
ninety-six (96) hours, where a business is conducted, any equipment, furniture,
furnishings or stock-in-trade that is used, acquired, or in any way comes into the
possession or under the control of the person owning or in control of such
property, unless the same is within a building a building or structure, or unless
enclosed by a solid fence or wall not less than four (4) feet nor greater than six (6)
feet in height, constructed so as to keep out children and trespassers. Such
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buildings and enclosures shall have solid doors and gates at all openings therein
for ingress and egress, and suitable locks shall be maintained on such doors or
gates. This Section shall not apply to motor vehicles or other type of equipment
used in the transportation of persons or property.
88. Section 192-18 explicitly excludes “motor vehicles” or other type of “equipment
used in the transportation of … property” from the definition of “outdoor storage.”
89. Therefore, neither the trailers nor space to park the trailers or trucks constitute
“outdoor storage” as to which the location or screening requirements apply.
90. The requirement for outdoor storage as an accessory use to be screened and
located in the rear yard does not apply to the trailer or truck parking spaces, because the trailers
being parked temporarily on site do not constitute “outdoor storage.”
91. The Board’s professional planner testified that if the trailers are not parked on
the site for more than 24 hours, then they would not be considered outdoor storage.
92. The Board required a variance for the trailer parking, determining that it
constitutes outdoor storage based on the Merriam-Webster’s Dictionary definition of “storage.”
93. Before the January 30, 2020 hearing, Monmouth Commerce proposed to change
the double-row of 142 trailer parking spaces to a single row of 71 truck parking spaces so the
trailers would not be parked without a cab, and to limit the time during which a truck can remain
in the same space to 24 hours.
94. The Board nevertheless erroneously required a variance and determined, contrary
to the evidence, that all parking of trucks or trailers for any length of time constitutes outdoor
storage.
95. The Board’s interpretation of the Ordinance, in the circumstance of the
Application, is an attempt by the Board to rewrite the Ordinance provisions in the SEC Zoning
District to give “outdoor storage” a meaning different than that already determined by the
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Township Council as expressed in the Ordinance.
96. The Board’s determination that all truck or trailer parking for any duration
constitutes outdoor storage, and that a variance was required to allow trailer and/or truck parking
to be located in a screened rear yard, was (i) against the weight of evidence presented, (ii)
contrary to accepted rules of statutory construction, (iii) ultra vires the Board’s delegated
authority, (iv) arbitrary, capricious and unreasonable, and (v) a usurpation of the legislative
powers delegated to the Township Council.
a. Holding that the Board’s interpretation of Section 188-79.B.(3) of the
Ordinance is in error and neither truck nor trailer parking constitutes
“outdoor storage.”
b. Overturning and reversing the Denial and granting the Application;
c. Awarding Plaintiff its attorneys’ fees and costs of suit; and
d. Granting such other and further relief as the Court deems appropriate.
COUNT IV
IMPROPER DENIAL OF VARIANCE
98. Outdoor storage is permitted as an accessory use in the SED Zone. Therefore, if
a variance were required from Section 188-79.B.(3), the variance would be only for the location
in the side yard and/or without screening.
99. The Board’s planner testified that the purpose of the Ordinance requiring outdoor
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storage in the SED Zone to be in a screened rear yard is to minimize the visibility of the items
being stored outdoors.
100. The testimony and evidence before the Board established that the site was fully
screened from surrounding uses by required substantial buffers, a minimum 50 feet in depth,
except for where broken by access drives.
101. The evidence before the Board demonstrated that the layout of the site is such
that the planned warehouse buildings would impair visibility of the parking spaces from certain
angles and the landscape buffers would provide additional screening and visibility from within
the site to the spaces in the side yard, and would be comparable to the extent to which the spaces
would be visible if located in a rear yard.
102. The testimony and evidence before the Board established that the objective of the
conditions requiring “outdoor storage” to be screened and in a rear yard are achieved by the
proposed site design, the record revealed no identified detriment, and the grant of the variance
furthers purposes of zoning set forth in N.J.S.A. 40:55D-2.
103. Due to the lack of visibility of the parking spaces to be used to accommodate
trailers or trucks, the parking spaces do not substantially impair the intent and purpose of the
Ordinance or Master Plan and do not cause a substantial detriment to the public good.
104. The Board did not find that the parking spaces would be visible to the public.
105. The Board’s determination that a variance from Section 188-79.B.(3) of the
Ordinance was required, and its denial of the variance, were (i) against the weight of the
evidence presented, (ii) ultra vires as to the Board’s delegated authority, and (iii) arbitrary,
capricious, and unreasonable.
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COUNT V
FAILURE TO ACT ON REQUESTED RELIEF
107. The Application included a bulk variance, pursuant to N.J.S.A. 40:55D-70.c.,
from the requirement in Section 188-63.E. of the Ordinance which requires a 50-foot-wide, four-
season landscaped buffer around the perimeter of the property where a property is adjacent to a
residential use or residential zone.
108. Monmouth Commerce presented testimony from its planner and engineer
establishing that preserving existing healthy mature trees was a better zoning alternative, and that
the benefit of the grant of this variance outweighed any detriment. The Board’s landscape
architect endorsed this position.
109. Monmouth Commerce presented evidence establishing that maintaining the
existing trees would have no negative impact on surrounding uses, and that the preservation of
trees was consistent with the Ordinance and Master Plan.
110. The Application included a design waiver from Section 188-22 of the Ordinance
to permit the maximum average lighting levels to exceed 0.5 footcandles and to permit lighting
that does not meet the minimum 0.3 footcandles in some areas.
111. Monmouth Commerce presented testimony establishing that there are practical
21
difficulties with meeting the applicable lighting standards, due to the size of the site and the
advantage of minimizing the number of light stations on the property given the need for trucks to
be able to circulate internally.
112. The Application included a design waiver from Section 188-106.G. of the
Ordinance, which requires one tree and one shrub to be planted in the parking lot for every ten
parking spaces, which would translate to 71 trees and 71 shrubs based on the proposed 706
parking spaces.
113. The Application included a design waiver from Section 188-193.B.(1) of the
Ordinance to permit a tree management plan at a scale of one inch equals 100 feet where the
Ordinance requires a scale of one inch equals 50 feet or less.
114. The Board stated at the hearings that the Application required a design waiver
from Section 188-226.E. of the Ordinance, which requires parking lots visible to the public to be
surrounded by a visually impervious screen, hedge, or wall at least three (3) feet in height.
115. The parking lot is not visible to the public due to the extensive buffering, and
therefore a design waiver from this Ordinance Section is not required. The Board nevertheless
required a waiver from Section 188-226.E. because the parking lots might be visible from the
driveway entrances -- a circumstance that would exist even if an impervious screen hedge or
three-foot wall were installed since a break in the hedge or wall for access would still be
required.
116. The Application sought a design waiver from Ordinance Section 188-226.F. to
permit the parking areas to be separated from the building entrances by curbing where parking
areas are required to be separated from buildings by curbing and other protective devices such as
bollards.
22
117. Monmouth Commerce proposed buildings with concrete and steel reinforced
glass entrances which the testimony established would provide protection comparable to the
other protective devices.
118. The Application included a design waiver from Ordinance Section 188-231.C. to
permit five (5) monument signs and eighteen (18) wall-façade signs, insofar as the Ordinance
permits a maximum of two (2) wall-façade, projecting, or freestanding/pole signs on a corner lot
and prohibits two signs facing the same street.
119. Monmouth Commerce testified that one (1) monument sign was proposed at
each of the five (5) entrances, and the proposed wall signs were limited to building numbers, two
(2) on each building.
120. The testimony established that the signage was necessary for safety purposes for
drivers approaching the site or traversing the site.
121. The Board took no action on Monmouth Commerce’s request for a variance from
Section 188-63.E. with regard to the buffer or on the request for design waivers from Ordinance
Sections 188-22, -106.G., -193.B.(1), -226.E., -226.F, and -231.C.
122. Monmouth Commerce satisfied its statutory burden of proof to entitle it to the
variance from Section 188-63.E. and for each of the design waivers as to which the Board took
no action.
123. The Board was without power or authority to select among the relief sought by
Monmouth Commerce and to choose to act only on some requested variances or design waivers.
124. Defendant Board’s failure to act on the variance from Section 188-63.E. sought
by Monmouth Commerce, and on various of the requested design waivers, results in the approval
of this relief due to the Board’s failure to act as to this relief within the time period provided by
23
the MLUL, is against the weight of the evidence presented, is ultra vires the Board’s delegated
authority, and is arbitrary, capricious, and unreasonable.
a. Granting the variance from Section 188-63.E. and design waivers from
Section 188-22, -106.G., -193.B.(1), -226.E., -226.F., and -231.C. requested by Monmouth
Commerce as to which the Board failed and refused to act;
b. Overturning and reversing the Denial and granting the Application;
COUNT VI
IMPROPER INTERPRETATION AND APPLICATION

OF TREE REPLACEMENT ORDINANCE
126. The Tree Replacement Ordinance requires that when trees are removed from a
site due to development, the trees must be replaced by an amount that is determining according
to a formula based upon the size and number of trees being removed, or that a contribution must
be made to the Township Tree Fund.
127. Section 188-195.C. provides the standard and formula for contributions to the
Township Tree Fund:
C. Township Tree Fund. In the alternative, should the quantity of the trees
to be removed be greater than the tree replacement/landscaping plan due
to limited available planting area, the applicant may make contribution to
24
be deposited in the Township Tree Fund as established by this article. The
contribution, in lieu of planting of trees, shall be $300 per tree.
Contribution from the applicant shall not exceed the total sum of $35,000
per developed acre.
128. Pursuant to the Tree Replacement Ordinance, the Application required the
replacement of 31,383 trees. The Application initially proposed providing 591 new trees and
then increased that number to 1,091, and proposed a contribution to the Township Tree Fund in
the amount of $2,509,990.
129. Monmouth Commerce’s proposed contribution to the Township Tree Fund equals
$35,000 per developed acre.
130. The evidence established that the Application complies with or exceeds all
applicable bulk, area, and yard requirements of the Ordinance, including all required setbacks
and coverage requirements.
131. Neither the variance sought by Monmouth Commerce nor the variance identified
and required by the Board had the effect of increasing the area of the site proposed to be
developed or increasing the number of trees to be removed.
132. None of the design waivers sought by Monmouth Commerce had the effect of
increasing the area of the site proposed to be developed or increasing the number of trees to be
removed.
133. The Application preserves as buffers a larger area of the site than is required by
the NJDEP or the Ordinance.
134. Monmouth Commerce proposed to plant as many trees as it could fit into the
proposed development, as the number of threes that could be planted due is limited by the
25
available planting area beyond the perimeter buffers, the NJDEP required buffers and the
permitted improvements.
135. It is a matter of public record that the Board previously permitted other
applicants to make a contribution to the Township Tree Fund in lieu of planting all of the
required replacement trees on-site, including applicants that were granted variances from
required setback or buffer requirements as to properties within the SED Zoning District.
136. It is a matter of public record that the Board previously held, for other applicants
that “Section 188-195 allows an applicant the option of waiving the planting requirement by
making a payment in lieu of planting” replacement trees.
137. The Board based its denial of Monmouth Commerce’s election to make “a
payment-in-lieu” on its unsupported assertion that the development of the Property pursuant to a
plan that did not require the requested variances and design waivers would permit the replanting
of more trees. In this regard, the Board did not cite to any applicable standards to establish the
size of a development that would be acceptable, particularly since the proposed development
complies with all coverage, setback and buffer requirements.
138. The Board’s determination that Monmouth Commerce did not meet its burden of
proof to allow it to make a contribution to the Township Tree Fund in lieu of the tree planting
requirement is arbitrary, capricious, and unreasonable.
139. The Board does not have the authority to modify the provisions of the Tree
Replacement Ordinance or decide what use should be developed at the Property, or to determine
how much of the Property should be developed, unless a variance is required to permit the
development to the extent proposed or with the use proposed. These are decisions have been
made by the Township Council and are set forth in the Ordinance.
26
140. The Tree Replacement Ordinance does not modify or supersede the development
standards set forth in the Land Use Ordinance and cannot be interpreted to do so. Rather, the
Tree Replacement Ordinance sets forth a specific scheme. If trees are removed, a certain number
of trees are required to be replaced. If the site does not contain enough planting area to replace
the required number of trees, then the applicant can elect to make a contribution in lieu of
replacing the trees or the applicant can apply for a waiver from a portion or all of the tree
replacement requirement (and relief from a financial contribution) based upon documentation of
practical physical difficulties and undue hardship.
141. The Board’s interpretation of the Tree Replacement Ordinance serves to
supersede the development standards set forth in the Land Use Ordinance, and to require
Monmouth Commerce to develop a smaller project utilizing a smaller portion of the Property
than what is permitted pursuant to the Land Use Ordinance.
142. The Board’s interpretation and application of the Tree Replacement Ordinance
renders it unconstitutional as applied to Monmouth Commerce’s Application, because it
supersedes valid development standards in the Land Use Ordinance.
143. By denying the in-lieu payment request due to Monmouth Commerce’s request
for any variances or design waivers, the Board’s interpretation of the Tree Replacement
Ordinance creates a standard that is not actually a part of that ordinance as adopted by the
Township Council.
144. The Board’s determination that Monmouth Commerce did not meet its “burden
of proof” to make a contribution to the Township Tree Fund is an erroneous and unlawful
interpretation of that ordinance, is discriminatory and a violation of Monmouth Commerce’s due
process rights, is against the weight of the evidence presented, is ultra vires the Board’s
27
delegated authority, and is arbitrary, capricious, and unreasonable.
b. Invalidating the Board’s interpretation of the Township Tree Removal and
Replacement Ordinance as applied to the Application or, in the alternative, invalidating the
Township Tree Removal and Replacement Ordinance;
COUNT VII
IMPROPER APPLICATION FEES AND FEE ORDINANCE
146. Chapter 139 of the Township Code requires a non-refundable application fee of
$1,000 for each 10,000 square feet of building area, plus $100 for each additional 1,000 square
feet of building area beyond 10,000 square feet for preliminary site plan approval.
147. The building area for the project totaled 1,242,202 square feet.
148. A review letter dated December 14, 2018, from the Board engineer calculated the
application fee for preliminary site plan approval at $124,220.00.
149. The Township Code further required an application fee for final site plan approval
equal to one-half of the application fee for preliminary site plan approval, even where the final
application is submitted with, and is being reviewed simultaneously with, the preliminary site
plan application.
28
150. In the review letter dated December 14, 2018, the Board engineer calculated the
application fee for final site plan approval to be $62,110.00.
151. Monmouth Commerce paid a combined non-refundable fee of $186,330.00 on or
about December 17, 2018.
152. Thereafter, Monmouth Commerce submitted revised site plans as part of the
Application as a result of direction given by the Board. The Township Code requires an
additional non-refundable application fee equal to the greater of $1,000 or 10 percent of the
initial application fee for filing any revised plans.
153. The application fee for the submission of revised plans was $18,633.00.
Monmouth Commerce paid this fee on or about February 12, 2019.
154. Monmouth Commerce paid application fees totaling $204.963.00.
155. Monmouth Commerce could not proceed with its Application for preliminary and
final site plan approvals without making such payments, and therefore paid the fees under duress
because failure to pay would preclude obtaining approvals necessary to develop its proposed
project.
156. In addition to the application fees totaling $204,963.00, Monmouth Commerce
has to date paid $122,999.93 in escrow fees to cover the costs of the Board’s professionals,
including the Board’s attorney (except for the cost of his attendance at regular board hearings on
the Application), and the Board’s consulting engineers, planners, traffic engineers and landscape
architect; $2,400.00 in fees for special meetings; and $1,000.00 in fees for Technical Review
Committee (“TRC”) meetings.
157. The purpose of application fees, pursuant to N.J.S.A. 40:55D-8.b., is to cover “the
administrative costs” associated with implementation of the MLUL and to “defray the cost of
29
tuition for those persons required to take the course in land use law and planning in the
municipality” as required by statute.
158. The mandatory application fees paid by Monmouth Commerce far exceed the
administrative costs associated with the Application and could pay the costs of tuition for land
use courses for at least dozens of board members -- far more than contemplated by the MLUL.
159. The Application was not complex or complicated from an administrative
standpoint.
160. Upon information and belief, the fees paid by Monmouth Commerce far exceed
the actual costs of all municipal operations involved with the handling and processing of the
Application.
161. Upon information and belief, the fees paid by Monmouth Commerce far exceed
the actual costs of tuition for land use courses for all members of the Board.
162. The escrow fees paid by Monmouth Commerce, exceeding $122,000, covered the
costs of all other charges incurred by the Board and the Township relative to the Application,
including approximately 19 attorneys, engineers, landscape architect, planners, and traffic
engineers, for the review of plans and documents submitted by Monmouth Commerce,
attendance at meetings and hearings, and preparation of review letters and the Resolution.
163. While the proposed development that is the subject of the Application is large, the
size of the proposed development, in terms of building square footage, bears no correlation to the
administrative costs related to the Application, particularly where, under Township practices,
equally excessive escrow fees are collected to defray the cost of all charges from consultants
(except the Board attorney’s charges for attendance at regular Board hearings that are paid from
the application fees).
30
164. The application fees charged to Monmouth Commerce in connection with its
application were unreasonable and comprise an illegal exaction.
165. Chapter 139 of the Township Code is in violation of the MLUL, both on its face
and as applied.
b. Invalidating Chapter 139 of the Township Code;
c. Awarding Plaintiff reimbursement of excessive and unreasonable
application fees;
d. Awarding Plaintiff pre-judgment interest;
e. Awarding Plaintiff its attorneys’ fees and costs of suit; and
f. Granting such other and further relief as the Court deems appropriate.
COUNT VIII
FAILURE TO GRANT EXTENDED VESTED RIGHTS
167. The Application included a request for extended vested rights for the site plan
approval pursuant to N.J.S.A. 40:55D-49.d. & -52.b. The Application qualifies for extended
vested rights relative preliminary site plan approval because the Property is over 50 acres and
under final site plan approval because the project proposes over 200,000 square feet of
nonresidential floor area.
168. The Board improperly denied the Application and failed to address the request
31
for extended vested rights.
169. Monmouth Commerce was entitled to the approval of the Application and the
Board should grant extended vested rights due to the estimated five-year build-out of the project.
a. Overturning and reversing the Denial and approving the Application;

Attorneys for Plaintiff MONMOUTH COMMERCE
CENTER, LLC
By: s/Mark E. Duckstein

Meryl A. G. Gonchar
Mark E. Duckstein
Dated: May 20, 2020
32
DESIGNATION OF TRIAL COUNSEL
Plaintiff hereby designates Meryl A. G. Gonchar, Esq. and Mark Duckstein, Esq. as trial
counsel.

Attorneys for Plaintiff MONMOUTH COMMERCE
CENTER, LLC

Meryl A. G. Gonchar
Mark E. Duckstein
Dated: May 20, 2020
33
R. 4:5-1 CERTIFICATION
I certify that the matter in controversy is not the subject of any other action pending in
any other court or in any arbitration proceeding (except that Plaintiff has submitted to the
Defendant Township Council an objection to and appeal of the escrow funds charged by the
Defendant Board’s consultants in connection with the Application that is the subject of this
litigation), that no such proceedings are contemplated and that no other party should be joined in
this action. I am not aware, based on facts known to date, of any non-party who should be joined
in the action pursuant to R. 4:28 or who is subject to joinder pursuant to R. 4:29-1(b) because of
potential liability to any party on the basis of the same transactional facts. Plaintiff reserves its
right to join additional defendants based on plaintiff’s ongoing factual investigation. I
acknowledge plaintiff’s continuing obligation to amend this certification pursuant to R. 4:5-1.
I certify that the foregoing statements made by me are true. I understand that if the any
of the foregoing statements made by me are willfully false, I am subject to punishment.

Attorneys for Plaintiff MONMOUTH
COMMERCE CENTER, LLC

Meryl A. G. Gonchar
Mark E. Duckstein
Dated: May 20, 2020
34
R. 4:69-4 CERTIFICATION
Pursuant to R. 4:69-4, I certify that all of the necessary transcripts have been ordered as
of the date of the filing of this Complaint.
I certify that the foregoing statements made by me are true. I understand that if the any
of the foregoing statements made by me are willfully false, I am subject to punishment.

Attorneys for Plaintiff MONMOUTH
COMMERCE CENTER, LLC

Meryl A. G. Gonchar
Mark E. Duckstein
Dated: May 20, 2020
35

Monmouth Commerce Center Complaint

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MON-L-001585-20 05/21/2020 11:08:14 AM Pg 1 of 35 Trans ID: LCV2020918907

SILLS CUMMIS & GROSS P.C.

Attorneys for Plaintiff

MONMOUTH COMMERCE CENTER, SUPERIOR COURT OF NEW JERSEY

Plaintiff, MONMOUTH COMMERCE CENTER, LLC (“Monmouth Commerce”), by its

against defendants, Howell Township Planning Board (“Board”), Howell Township

1. Plaintiff Monmouth Commerce is a limited liability company of the State of New

Township as Block 5, Lots 2 and 3 (“Property”).

2. Defendant Board is the planning board of Howell Township, created pursuant to

3. Defendant Township is a body corporate and politic situated in Monmouth

5. Monmouth Commerce submitted an application (the “Application”) to the Board

minimum number of parking and loading spaces.

uncontroverted evidence establishing the safety of the access.

requested waivers should be granted.

8. The Board erroneously interpreted the Township Land Use Ordinance

9. The Board failed to act on a variance pursuant to N.J.S.A. 40:55D-70.c. to use

requested relief upon which to act.

Replacement Ordinance”), referred to as the Woodlands Management Ordinance in the

and as applied to Monmouth Commerce.

A. The Subject Property.

District of the Township.

highway infrastructure are readily available.

permitted uses or bulk standards in the zone.

B. Monmouth Commerce’s Application for Land Use Approvals.

to permit a phased commercial warehouse development consisting of eight warehouse buildings

maintaining the total square footage of the proposed development.

bollards, sidewalks, and signage.

and minimum number of parking spaces.

because Township representatives requested it to do so.

driveways are allowed on Randolph Road pursuant to the Township Code.

well beyond Monmouth Commerce’s fair share contribution.

and intersection reconstruction, including widening approaches, to the intersection of Randolph

28. The signalization and roadway improvements at the intersection of Randolph

intersection of Randolph Road and Route 547 or install a traffic signal.

signal, as part of the first Phase of the project.

31. Monmouth Commerce proposed to construct the stormwater management

C. The Board Hearings Regarding the Application.

December 5, 2019; January 16, 2020; and January 30, 2020.

participated in the hearings.

35. Monmouth Commerce presented witnesses, accepted by the Board as experts, in

representative of Monmouth Commerce, Henry Guindi, who testified regarding operations,

including the necessity of the proposed trailer parking spaces.

near the number of trees required by the Tree Replacement Ordinance.

proposed signal and related off-site improvements.

40. Elizabeth McManus, a licensed professional planner, provided planning

waivers to demonstrate the hardship or impracticability necessary to entitle Monmouth

relative to the design.

Application (the “Denial”).

44. The Board memorialized the Denial in a resolution of memorialization, which it

45. In connection with the Application, Monmouth Commerce submitted to the

WRONGFUL DENIAL OF SITE PLAN APPROVAL

paragraphs 1 through 45 above as if set forth at length herein.

for each of the nine (9) proposed buildings.

48. Monmouth Commerce demonstrated through competent and credible expert

49. Monmouth Commerce, through its professionals, provided competent and

preliminary and final site plan approval.

50. Monmouth Commerce presented uncontroverted expert testimony in support of

variances and the majority of the requested design waivers.

ingress and egress of the site.

at the intersection of Randolph Road and Route 547.

56. In order to address those concerns, Monmouth Commerce proposed to prevent

considered by the Board.