This is an action in lieu of prerogative writ in which the plaintiff appeals a zoning board's denial of a use variance.
The question presented is whether a zoning board of adjustment may deny a use variance on the basis that the proposed use would result in an increase in off-site traffic.
This court concludes that it may.
The plaintiff has requested a use variance for a retail store to be located on Springfield Road, Union, New Jersey. The site is located at a distance of approximately 1,100 feet from the intersection of Springfield Road and Route 22. Traffic engineers who testified at the hearings on behalf of the applicant and the Zoning Board of Adjustment agreed that the proposed use would result in a 12% increase in traffic at or near the intersection of Springfield Road and Route 22. The traffic count in that area is now 68,700 vehicles per day. They also agreed that traffic generated by the proposed use would significantly increase traffic on Springfield Road and constitute 17-21% of its capacity. The traffic count on Springfield Road is now 20,000 vehicles per day. The plaintiff's engineer also testified that the impact on traffic could be lessened by installing a traffic light and by constructing a third lane on Springfield Road near the front entrance of the site. The plaintiff's engineer also informed the Board that the plaintiff was willing to post a bond to cover the costs of construction of another lane on Route 22 if, sometime in the future, the State decided that one was necessary.
The Board members voted 4 to 3 to grant the variance. This resulted in a denial since the statute requires five affirmative votes to approve a use variance. N.J.S.A. 40:55D-70. The three negative votes were based on the concern that the proposed use would worsen the traffic congestion in the area.
The plaintiff now appeals the decision of the Zoning Board, arguing that it has proven both the affirmative criteria and the negative criteria required by the Municipal Land Use Law, N.J.S.A. 40:55D-1 to 190.*fn1
With respect to the "negative criteria," the statute provides that:
No variance or other relief may be granted under the terms of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.
[N.J.S.A. 40:55D-70 (emphasis added).]
The plaintiff argues in this appeal that the three Board members who voted to deny the variance improperly considered off-site traffic conditions, a consideration not permitted under the law. Specifically, the plaintiff argues that the negative criteria "without substantial detriment to the public good" does not encompass considerations of off-site traffic conditions. It cites the following cases in support of that position.
The case of Dunkin' Donuts of N.J. v. Tp. of North Brunswick, 193 N.J. Super. 513, 475 A.2d 71 (App. Div. 1984) addressed the issue of whether a planning board may deny a site plan on the basis that the proposed use would generate additional off-site traffic. The court held that a planning board has no authority to deny site plan approval because of off-site traffic conditions, stating:
A planning board should consider off-site traffic flow and safety in reviewing proposals for vehicular ingress to and egress from a site, N.J.S.A. 40:55D-7, 41(b). Pursuant to ordinance it may condition site plan approval upon a contribution to necessary off-site street improvements, N.J.S.A. 40:55D-42. But the authority to prohibit or limit uses generating traffic into already congested streets or streets with a high rate of accidents is an exercise of the zoning power vested in the municipal governing body, N.J.S.A. 40:55D-2, 62.
It is clear that Dunkin' Donuts does not stand for the proposition urged by the plaintiff. But it does stand for the proposition that consideration of off-site traffic conditions is an "exercise of the zoning power." Thus one might logically conclude that it is ...