On certification to the Superior Court, Appellate Division, whose opinion is reported at 205 N.J. Super. 225 (1985).
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Stein, J.
In this case we consider the validity of a zoning ordinance that purports to authorize a municipal planning board to deny site plan approval for an otherwise permitted use on the basis of the volume of traffic the use is likely to generate. The Appellate Division, observing that the language relied on by the Planning Board was contained in a section of the ordinance entitled "Purpose," concluded that this section was a preamble that improperly delegated zoning authority to the Board. The court declined to give effect to the Purpose clause, and ordered the Board to grant site plan approval. PRB Enterprises, Inc. v. South Brunswick Planning Bd., 205 N.J. Super. 225 (App.Div.1985). We now affirm the judgment of the Appellate Division.
In February 1983, PRB Enterprises, Inc. (PRB) applied to the Planning Board of South Brunswick for preliminary and final site plan approval for a convenience food store in an area of the town known as "Five Corners." The proposed use for the site was to be a WAWA food store, described by a witness as "a delicatessen oriented, supermarket-type of business, very large product line, geared to the adult community, [and] not to the high margin type of turnover * * *."
The proposed site was located in a C-1 zone, in which permitted uses included "neighborhood retail sales of goods and services."*fn1 The section of the zoning ordinance that regulated
uses in the C-1 zone contained an introductory paragraph, labelled "Purpose," which provided:
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. [Emphasis supplied.]
According to testimony at the Board's hearings, this language was intended to limit commercial uses to those that would not significantly add to traffic congestion at the Five Corners intersection.
PRB's application was considered by the Planning Board during six public hearings held between June and December, 1983. Testimony at the hearings focused on the potential impact of the proposed use on traffic at the intersection. PRB's witnesses testified that the use would have little effect on the existing level of traffic. The Township's Planner and Engineer testified that the proposed use would generate high levels of traffic, and that site plan approval should be denied although the proposed use was among those permitted by the ordinance. The Board denied PRB's application.
The Law Division reversed the decision of the Board, and granted PRB preliminary and final site plan approval with respect to the proposed use. ...