In two cases decided by the Appellate Division last week, the Toms River/Manchester Township Wal-Mart suffered a setback.  In an unpublished decision, the Appellate Division determined that the Planning Board approval in Manchester Township was invalid since shopping centers were not a permitted use in the applicable zone when the approval was granted.  In the published decision, the Court determined that DEP has the authority to approve a development that has an impact on threatened and endangered species subject to appropriate mitigation.  DEP had previously taken the position that these types of approvals could not be granted, because the threatened and endangered species regulation does not provide an avenue for mitigation.  The Court, however, utilized the general mitigation rule and validated DEP’s decision allowing mitigation for impact to the threatened pine snake.  In that unpublished decision, which allows mitigation to be selectively considered as a case-by-case basis, however, the Court remanded the matter to DEP since it could not determine whether the impervious coverage limitation should be 30% or 80%.  That is because the limits of the Coastal Center, which would allow 80% impervious coverage, was not precisely determined by DEP in its decision.  Should DEP determine that the Coastal Center is not applicable to the project, then it would probably sound the death knell for Wal-Mart since it would be nearly impossible to construct this type of commercial development with 30% impervious cover.