Credit: (AP Photo/Danny Johnston)

A state judge’s recent decision to block nearly all members of a local planning board from deciding on a warehouse application has sent up caution flags for planning officials across New Jersey, as communities struggle to slow the explosive growth of warehouses statewide.  

In late March, state Superior Court Judge Stuart Minkowitz disqualified eight of the nine members of the Sparta Township Planning Board from determining whether to approve a plan to build 660,000 square feet of warehousing in the Sussex County  town. 

Their offense: They were all supporters of an online community group that was formed to oppose the project, the judge said.

The judge ruled on March 28 that because of the members’ public opposition to the warehouse plan as members of Sparta Responsible Development Facebook group, they have a conflict of interest and are incapable of ruling impartially on the application by the developer Diamond Chip Realty.  

“It is virtually impossible to separate their organizational membership goals in SRD, and the impartiality necessary to render a fair determination on a site plan approval,” Minkowitz wrote in a 14-page order on a suit by Diamond Chip against the township. 

Possible consequences 

The judge ruled that members of the town’s Zoning Board of Adjustment will temporarily make up the planning board for the purposes of deciding the case, as allowed under the Municipal Land Use Law. The judge said the reconstituted board must start reviewing the case within 45 days of the ruling. The township has yet to say whether it will appeal. 

‘It could be another tool in the developer’s tool belt to research the planning board members and look for conflicts.’ — Pete Kasabach, New Jersey Future

The decision is believed to be the first in the state to affect virtually all members of a local planning board, and observers said it may change the battle lines that have emerged around New Jersey’s warehouse boom.  

“It is an opinion by a jurist in Sussex County, and other Sussex County judges would look to that,” said Jennifer Mazawey, a land-use attorney at K&L Gates in Newark, who is not involved in the case but frequently represents developers. “If I was representing an applicant, I would look to that opinion if I were arguing against something similar in another town.“ 

Mazawey said the ruling does not set a legal precedent because it comes from a trial court, but it could still be used by developers who are seeking approval for their projects in the increasingly heated statewide debate over where to locate new warehouses. 

“Even though it’s not precedential, I would use this case to try to convince a judge in another county that he or she should do the same thing,” said Mazawey.  

Frank Marshall, an attorney with the New Jersey League of Municipalities, said it’s fairly common for individual planning board members to be disqualified by courts due to a conflict of interest such as a financial or family interest in a property, but he said it’s rare for virtually all the members to be judicially blocked — and especially over such a cause. 

How the judge decided 

Minkowitz based his order on several posts by the disqualified board members, seven of whom said on Sparta Responsible Development’s Facebook page that they were members of the group that was formed by Sparta Mayor Neill Clark to oppose the warehouse project. As mayor, Clark appointed the board members.  

“The Planning Board does not dispute that the eight identified appointees are current and active members of the SRD and that the SRD was formed by Clark solely to challenge DCR’s application,” the judge wrote. 

Social media has become a powerful tool in communities’ campaigns against warehouses, with platforms like Facebook and X, formerly Twitter, providing active forums organizing opposition. But land-use lawyers warned it can become a tool for developers, too. 

Ongoing warehouse development has fueled opposition in communities who fear surging truck traffic, worsening air quality and the industrialization of the state’s remaining rural corners. 

“Developers and their attorneys are already looking for these types of things because social media is so prevalent in everybody’s world. So, part of due diligence is looking to see whether there’s opposition groups out there,” Mazawey  said. 

New Jersey’s warehouse-building boom has continued unabated for several years, prompted by a massive consumer shift to online ordering, the state’s position as a major national entry point for imported consumer goods, and a dense network of highways and rail lines that allow quick distribution of goods in the populous Northeast market.  

The warehouse boom 

Industrial data for north and central New Jersey in the first quarter of 2024 shows the future supply of warehousing and other commercial real estate remains at a “healthy” 12.8 million square feet under construction, while asking rents rose to a record-high $16.83 a square foot, according to Newmark, a real estate company, in a quarterly report. 

But in signs of a possible future slowdown, vacancies rose 1.4 percentage points to 4.4% and the area covered by leases was 17% lower than a year earlier because of tenant downsizing and consolidation, Newmark said. 

The demand has left developers scrambling for land to construct the giant buildings, and fueled opposition in communities who fear surging truck traffic, worsening air quality and the industrialization of the state’s remaining rural corners. 

Sparta Township Mayor Clark said he formed the SRD group in 2021 to ensure that opponents of the warehouse project would have a full and fair hearing before the planning board, which he said would otherwise have heard formal argument on this and other projects from only the developer’s side. 

“It is an out-of-character, out-of-place development in a semi-rural town,” Clark said of the warehouse project. “There is nothing even approaching that in scale and scope. There was this groundswell of people in the town who did not want this, so SRD was formed to give them a voice.” 

‘Erroneous’ decision 

Clark rejected the judge’s comment that SRD had been formed solely to oppose the warehouse project. “That was the first order of business but it went broader than that,” he said, referring to the opposition group. 

And he called the ruling “erroneous” because he said it relied only on the Facebook posts that were cited by the developer’s attorneys in their lawsuit against the township. 

“The mere following of a Facebook page as the basis on which to disqualify someone without any other scrutiny of any individual planning board member — that’s the scope of the judge’s ruling,” Clark said. 

He predicted that the decision will be looked at by attorneys who are advising developers about how to respond to local opposition to their plans. 

“I do think attorneys for developers will read the decision and decide whether it is in their client’s best interests to adopt similar tactics to Diamond Chip’s. I also think planning boards and local government officials who make appointments to planning and zoning boards should be aware of these developer tactics and plan accordingly,” Clark said.  

Adam Garcia, an attorney for Diamond Chip, said it filed the suit in September because of its contention that the eight planning board members were subject to a conflict of interest and so wanted a court to endorse that position.  

“We said, given how pervasive this conflict issue is, there is no way we can get a fair shake, so therefore we want the court to decide now whether these people should be disqualified,” he said. 

Ammunition for developers 

The planning board’s attorney, Tom Collins, did not respond to requests for comment on whether the judge’s ruling will be appealed.  

Elliott Ruga, policy and communications director for the environmental nonprofit Highlands Coalition, also criticized the ruling, saying it would logically disqualify any planning board member — all of whom are volunteers — who has an opinion on land use, even if they are not part of an organized group like SRD. The Highlands Coalition supports SRD in its fight against the warehouse. 

“[Facebook] membership by the planning board members is an obvious indication of their prejudice on the project, but in planning boards across the state, there are less obvious but no less determined convictions about warehouses and other such projects,” he said. “How do you determine that, and how can you even have a planning board?”  

The same applies to members of Sparta’s Zoning Board of Adjustment, who are now standing in for planning board members to decide the warehouse application, Ruga said. 

Pete Kasabach, executive director of New Jersey Future, a nonprofit that advocates for “smart growth” in land use, said the Sparta case appeared to be unique and could be used by developers to win their arguments with townships. 

“It could be another tool in the developer’s tool belt to research the planning board members and look for conflicts,” he said.