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DePetro v. Township of Wayne Planning Board

February 25, 2004

ROY A. DEPETRO, ROBERT LEFELAR, IRENE WEINBERG, MARY TUMMINELLO, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
TOWNSHIP OF WAYNE PLANNING BOARD, DEFENDANT-RESPONDENT, AND SUSA PARTNERSHIP, L.P., A LIMITED PARTNERSHIP HEADQUARTERED IN MEMPHIS, TN, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, L-2781-01.

Before Judges A. A. Rodríguez, Lefelt and Payne.

The opinion of the court was delivered by: Payne, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically December 3, 2003

Plaintiffs Roy A. DePetro, Robert Lefelar, Irene Weinberg, and Mary Tummienello, residents of the Township of Wayne and shareholders in an entity that competes with the self-storage facility business of defendant SUSA Partnership, appeal from orders of the trial court upholding, with modifications, a grant by the Township of Wayne Planning Board of preliminary and final site plan approval for the construction of a self-storage facility by SUSA on a lot on Route 23 South, zoned in relevant part for business uses. SUSA cross-appeals from the trial court's order, on motion for reconsideration, providing that the storage of commercial goods within the proposed self-storage facility is prohibited. We affirm in part and reverse in part.

I.

Defendant SUSA owns and operates self-storage facilities located throughout the country known as Storage USA. It is the contract purchaser of a five-acre lot, formerly occupied by Matzner Printing Company and now abandoned, that is located in the Township of Wayne on Route 23 South. The property is"bowling alley" in shape, and is split-zoned, with the front portion located in a"B" business zone, and the larger rear part located in an industrial park zone. Much of the property located in the industrial park zone is protected wetlands, and the land in that zone lacks development potential.

Prior development plans by SUSA for the projected self-storage facility included construction of a detention basin in the industrial park zone, for which a"d" variance (N.J.S.A. 40:55D-70d) was required from the Township's Board of Adjustment. SUSA's application was thus filed with that Board, and while there, met objections from plaintiffs, owners of Access Self-Storage, a competing facility located within the Township in an industrial zone on Route 23, several miles to the south of SUSA's proposed facility. Thereafter, SUSA's plans were revised so that all development would take place in the business zone. After this change occurred, SUSA's application before the Board of Adjustment was withdrawn, and the matter was administratively transferred to the Planning Board for approval of the site plan and issuance of a"c" variance to permit the construction of the detention basin in a buffer zone. N.J.S.A. 40:55D-70c. No objection to the transfer was raised by plaintiffs.

At the time of the transfer, the Township's Director of Planning, John Szabo, viewed SUSA's proposed use as a customer service one that was among those permitted in the Township's business zone, and he so informed the Planning Board. The plaintiff objectors, through counsel, took the position that the use constituted a"commercial storage warehouse," a use that was specifically prohibited in the zone, and they sought over objection by SUSA to establish this fact through cross-examination of SUSA's witnesses and the testimony of their own planning expert, Michael Kauker. In a vote held on the permissibility of the use on the second of three nights of proceedings before it, the Planning Board voted seven to two that the construction of a self-storage facility constituted a permitted use within the Township's business zone.

During the course of extensive testimonial hearings before the Planning Board, various other objections were raised to the number of parking spaces at the facility, provision for adequate turning space for trucks and the location of the detention basin. By the conclusion of those hearings, those objections had been met by an increase in parking spaces, an agreement by SUSA to permit the Township to determine the maximum size of trucks entering the facility, and withdrawal of the request for a variance to permit construction of an above-ground detention basin. Thus, at the time that preliminary and final site plan approvals were granted, with certain conditions that are irrelevant here, the only remaining objection was that voiced by plaintiffs to the interpretation given by the Planning Board to the Township's zoning ordinance.

The Board described its determination that the use was permitted in the following language, set forth in its resolution approving SUSA's preliminary and final site plans:

The Board finds that the proposed use is not a warehouse in the technical and traditional sense of the word but rather, is a permitted commercial service whereby the public and businesses may rent space to store personal [e]ffects. According to Moskowitz and Lindbloom in their planning reference book entitled"The New Illustrated Book of Development Definitions" dated 1993, warehouses are defined as"A building used primarily for the storage of goods and materials" (see page 296). The Board notes that warehouses are most typically facilities used to store large quantities of finished goods and materials for sale and distribution to market and typically entail heavy tractor trailer traffic. The applicant's proposed use however, does not fall within the scope of this definition or within the Board's understanding of conventional warehouse operations as prohibited by code. The facility in question will not promote the distribution of goods that is typical of a traditional commercial warehouse operation. Based upon past experience with self-storage facilities elsewhere within the Township, the Board does not expect significant traffic to be generated by this use at this site. In fact, testimony presented by the applicant affirms that there will be very little if any tractor-trailer traffic or any other type of traffic emanating to and from the site. Consequently, any disturbance to the established businesses along the Route 23 corridor should be minimal if not negligible.

The Board further notes that the construction of the Township's Zoning Ordinance does not preclude self-storage facilities. Chapter 211-64 H permits any commercial activity unless otherwise specifically prohibited. The Board notes that item (4) of this sub[s]section includes commercial storage warehouses however, it is further noted that this use is prohibited in context with several other uses including lumber yards, coal yards and building material storage yards. In this context, the Board finds that self-storage facilities do not share characteristics of these uses and consequently do not fall within the scope of this specific category that would preclude its consideration as a permitted use.

Additionally the Board found that the use was particularly appropriate to the lot in question, which was long and narrow and did not lend itself to retail development because of limited frontage on Route 23, and which had not proved attractive for office development. Further, the Board noted that the site had remained undeveloped during a period of sustained economic growth and had stood in its present abandoned condition for at least nine years. The proposed use, the Board found, would eliminate an ...


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