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Lionel''s Appliance Center Inc. v. Citta

Decided: January 18, 1978.

LIONEL'S APPLIANCE CENTER, INC., A CORPORATION OF THE STATE OF NEW JERSEY, JOHN KISSAS, T/A PERKIN'S PANCAKE HOUSE, BERNARD SACHS, T/A BERNIE'S ONE HOUR MARTINIZING, LIONEL'S T.V. SERVICE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, ELMER PURDY, T/A HEARING AID CENTER OF TOMS RIVER AND LIONEL DINERSTEIN, PLAINTIFFS,
v.
JOSEPH A. CITTA, PLANNING BOARD OF THE TOWNSHIP OF DOVER, AND THE TOWNSHIP OF DOVER, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS



Havey, J.c.c., Temporarily Assigned.

Havey

This action in lieu of prerogative writs raises a significant question regarding the powers of a local planning board in its site plan review under the new Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.

Plaintiffs, interested and aggrieved parties as defined by N.J.S.A. 40:55D-3, seek in this action to set aside a site plan approval granted by the defendant Dover Township Planning Board to the defendant Joseph A. Citta as applicant.

Defendant Citta is the owner of lots 28-34, inclusive, block 744-C in the Township of Dover, County of Ocean. The property consists of approximately 3.47 acres and is located on the southwest corner of the intersection of State Highway 37 and Hooper Avenue, a county roadway.

Commencing in January 1977 Citta made application to various municipal agencies for approvals to construct on the site a "Big Boy Restaurant," a "Roy Rogers Restaurant," both of which are operations of the Marriott Corporation, and a professional office building. According to the site plan proposed to the board, the site has approximately 308' frontage on State Highway 37 and 326' frontage on Hooper Avenue. Citta presented his site plan to the planning board and met with the plans committee of the board, discussing the details of the site plan application.

On June 6, 1977 the plan was certified by defendant board as complete and made the subject of a public hearing in accordance with defendant township's site plan ordinance. On July 11, 1977 defendant planning board, by resolution and after public hearing at two different meetings, granted the site plan approval with certain conditions, two of which are of importance here:

7. That no building permit be issued for the proposed office building for a period of at least 18 months from the date of approval and thereafter until further action by the Planning Board. It is the intention of this condition that the applicant return to the Planning Board after the expiration of the 18 month period so that the Planning Board can evaluate the then existing situation. When the subsequent application is made, the Planning Board may approve the immediate issuance of a building permit or further extend the period of delay of the issuance of a permit. In making this determination the Planning Board shall consider the then existing physical conditions of the area insofar as road patterns are concerned, any plans for future changes and the experience that has been gained of the effect of the site on traffic conditions and safety at the proposed site.

8. That the applicant redesign the entrance and exit located on Hooper Avenue to further discourage any left turn movements either entering or leaving the site. Any such redesign shall be considered technical in nature and shall require only the approval of both the County Engineer and the Dover Township Planning Board Engineer.

It is undisputed that the premises are located in a highway business zone and are properly zoned for the proposed uses. Nor is it disputed that defendant applicant met all other criteria regarding off-street parking, lot size, width, frontage, depth, setback and screening requirements. Also of importance is the undisputed fact that all permits for ingress and egress were properly obtained from the State Department of Transportation and Ocean County Planning Board. Finally, all approvals for drainage, sewer, water and fire safety were obtained by the defendant in accordance with the appropriate municipal ordinances.

Plaintiffs contend that even though defendant Citta meets all of the zoning criteria and has received all local, county and state permits to construct the proposed uses, defendant planning board should not have granted site plan approval because of significant traffic problems which plaintiffs allege exist at the intersection of Route #37 and Hooper Avenue, and which will be intensified if the proposed uses are constructed. They argue further that the conditions imposed by the planning board unlawfully delegated to the board's

engineer the power to approve a redesign of an entrance and exit thereby rendering the site plan void. They also argue that the conditional approval of the proposed office building is so vague and speculative that it renders the entire site plan approval unlawful. Lastly, plaintiffs assert that defendant township's Ordinance 1624 is invalid for failure to provide adequate standards for site plan review. The arguments of plaintiff raised four basic issues relating to the application of N.J.S.A. 40:55D-1 et seq. , the Municipal Land Use Law, each of which are addressed separately.

I

Should a local planning board during a site plan review consider off-site factors in deciding whether to grant approval?

It is apparent from the record of the planning board meetings that plaintiffs attempted to persuade defendant board to deny the site plan application because of the traffic problems allegedly existing at the intersection where the proposed uses are to be constructed. Traffic consultants were presented by defendant to show that the traffic impact would be minimal. A traffic impact study was presented by plaintiffs in an attempt to show significant impact. Collision diagrams of the county planning board were marked in evidence and considered. It is unclear from the planning board's resolution and from the comments made during the hearings exactly what impact the traffic conditions at the intersection had on the findings of the planning board.

Implicit in plaintiff's argument is that the defendant board did not consider the off-site traffic conditions along the two main roadways and, therefore, improperly granted site plan approval. This raises the issue of what factors a planning board should consider in either granting or denying a site plan application.

Prior to the passage of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. , application for site plan review was a procedure created not by the Legislature but by case law. In Kozesnik v. Montgomery Tp. , 24 N.J. 154 (1957), the Supreme Court found that the planning board was singularly appropriate to review site plans by authority of N.J.S.A. 40:44-1.13, now repealed, which provided that the governing body ...


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