On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
J. H. Coleman and Havey. The opinion of the court was delivered by Havey, J.A.D.
[227 NJSuper Page 31] The central issue raised by this appeal is whether a planning board may relax, as part of a site plan review, the off-street parking space and driveway width requirements contained in the municipality's zoning ordinance. Defendant Planning Board of the Borough of Ship Bottom (Board) treated plaintiff Wawa Food Market, Inc.'s (Wawa) request to deviate from the requirements as an application for a hardship variance under N.J.S.A. 40:55D-70 c(1), and denied the application. The trial judge reversed, concluding that the requirements were design standards, and that the Board had the power to grant "exceptions" from the requirements of the ordinance as part of site plan review under N.J.S.A. 40:55D-51 b. The judge determined Wawa was entitled to the "exceptions" and ordered that site plan approval be granted. We reverse and remand for further proceedings. We conclude that off-street parking space and driveway width requirements, contained in the zoning ordinance, cannot be waived or relaxed by the planning board as part of site plan review. Relief from the provisions of a zoning ordinance must be sought under the variance procedure. We therefore remand to permit Wawa to apply for a c(2) variance
under N.J.S.A. 40:55D-70 c(2). On remand, the Board shall also reconsider Wawa's site plan application.
Wawa is the lessee of property located at the intersection of 12th Street and Long Beach Boulevard in Ship Bottom. The property is 80' X 160' and contains an existing brick structure, now vacant, previously occupied by New Jersey Bell Telephone Company (N.J. Bell). The property is zoned commercial. Wawa applied to the Board for site plan approval and related variances to use the existing structure as a convenience store, a permitted use. It requested variances from the rear yard, side yard and distance between buildings requirements of the zoning ordinance. It also sought "variances or design waivers" from the zoning ordinance's off-street parking and driveway width requirements.
Under the zoning ordinance, one parking space for each 200 square feet of commercial use of floor area is required. Floor area used exclusively for storage is not included in the calculation. Further, one parking space for each employee must be provided. Wawa's site plan provided 2,000 square feet of floor area for the convenience store. However, approximately 450 square feet are to be utilized for a platform area exclusively by employees for food preparation. Also, Wawa expected to have three employees working at the store. Under the ordinance, 2,000 square feet of floor area and employment of three employees requires 13 parking spaces. Wawa's site plan provided for 11 spaces. The plan also provided for a 25-foot wide driveway, whereas the ordinance requires a 20-foot maximum width.
Wawa's project engineer testified that only 11 parking spaces should be required since the 450-square foot platform area would not be accessible to the public. He also stated that if the driveway was only 20 feet wide, delivery trucks would have difficulty negotiating turns on the site. Wawa's real estate manager testified that he anticipated the store would serve approximately 1,200 customers per day and the site would
receive 10 to 13 delivery trucks per week, including large tractor-trailers. Wawa's traffic expert testified that in his opinion 11 parking spaces were sufficient for the area and that a 25-foot driveway was necessary to permit trucks to enter and exit the site.
Six members of the public appeared in opposition to Wawa's application. Their concerns included increased traffic problems generated by the convenience store, the potential that the store will become a "hang out" for local juveniles, and inadequate parking spaces.
The Board treated Wawa's request to deviate from the parking space and driveway width requirements as an application for a "hardship" variance under N.J.S.A. 40:55D-70 c(1). By written resolution the Board denied both the site plan and variance applications, finding Wawa had
Wawa filed the present action in lieu of prerogative writs challenging the Board's denial. The trial judge reversed the Board and ordered approval of the site plan, concluding that no variance was required from the set-back requirements since the N.J. Bell building was a legal nonconforming structure. He also concluded the Board erroneously treated Wawa's request for relief from the parking space and driveway width requirements as a variance application. The judge held that the requirements were design standards and therefore waivable under N.J.S.A. 40:55D-51 b, which permits planning boards to grant "exceptions" from site ...