On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
King, O'Brien and Simpson. The opinion of the court was delivered by O'Brien, J.A.D.
This zoning case involves denial of site plan approval by a planning board for a convenience store, an otherwise permitted use, because it was not "low traffic generating," as required by the preamble to the ordinance.
Defendant South Brunswick Planning Board (Planning Board) appeals from a decision of the Law Division reversing its denial of preliminary and final site plan approval to build a WAWA convenience store. We affirm reversal of the denial by the Planning Board of the application of PRB Enterprises, Inc. (PRB) for preliminary site plan approval, but reverse that portion of the final judgment which grants PRB final site plan
approval and remand to the Planning Board for consideration of such reasonable and necessary conditions as may be appropriate to the proposed use.
PRB made application for preliminary and final site plan approval to build a WAWA convenience store on premises located at the intersection of three busy public streets in an area known as "five corners." The premises are located in the C-1 district on the zoning map of the municipality, where among the permitted uses are "neighborhood retail sales of goods and services." It is conceded that the proposed convenience store comes within that description.
At issue is the preamble or "purpose" section contained in the zoning ordinance which reads as follows:
Purpose. The intent of the C-1 Zone District is to permit the delivery of low traffic generating retail and professional services, which directly benefit the residents of the surrounding neighborhood. The determination of the type of activity conducted on any piece of property in this Zone District must be based on traffic, site planning and land use considerations, especially in established village centers and the Route 27 corridor.
After extensive hearings the Planning Board concluded that the proposed WAWA store was not "low traffic generating" and denied site plan approval. PRB filed an action in lieu of prerogative writs in the Law Division to review that denial. The trial judge rendered an oral opinion on August 15, 1984 and, because of newspaper comments, clarified his opinion by letter of August 22, 1984. The trial judge specifically disclaimed that he had held the ordinance unconstitutional. Rather, he said: "The essence of my ruling was that the ordinance was misapplied." A final judgment was entered on August 24, 1984 which ordered:
The Planning Board appeals from that ruling.
It is difficult to follow the trial judge's reasoning. The judge concluded that a planning ...