January 30, 2008
WAWA, INC. PLAINTIFF-RESPONDENT,
THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF OLD BRIDGE, DEFENDANT-APPELLANT, AND OLD BRIDGE TOWNSHIP, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3987-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 7, 2008
Before Judges S. L. Reisner, Gilroy and Baxter.
Defendant Zoning Board of Adjustment of the Township of Old Bridge (Board) appeals from the December 6, 2006, order of the Law Division, which reversed its denial of a use variance to plaintiff Wawa, Inc., to construct a convenience store and a gasoline filling station. We reverse and remand to the trial court for further proceedings consistent with this opinion.
On October 7, 2004, Wawa made an application to the Board for preliminary and final site plan approval, with bulk and use variance relief, to construct a 5748-square foot convenience store and gasoline filling station. The Board conducted public hearings on Wawa's application on May 5, 2005; August 4, 2005; October 20, 2005; and February 2, 2006. On February 2, 2006, the Board voted to deny Wawa's application, and on April 6, 2006, it adopted a resolution memorializing that decision.
On May 18, 2006, Wawa filed an action in lieu of prerogative writs, naming the Board and the Township of Old Bridge (the Township) as defendants. Wawa sought reversal of the Board's decision, denying its land use application, as well as other affirmative and declaratory relief. Wawa also challenged the validity of the Township's zoning ordinance.
The trial court bifurcated Wawa's challenge to the denial of the land use application (Count One) from the challenges to the zoning ordinance (Counts Two, Three, and Four). A trial was conducted on November 17, 2006. On December 6, 2006, the trial judge issued a written opinion and order reversing the Board's denial of the land use application. Wawa's challenge to the ordinance, which had been scheduled to be heard following the court's decision, was dismissed as moot.
Wawa possesses a leasehold interest in property situated near the intersection of County Route 516 and Jake Brown Road, in the Township of Old Bridge (the Property). The Property is approximately 3.6 acres in size and is located in the Office General or "OG-1" zone.
On October 7, 2004, Wawa filed an application with the Board for preliminary and final site plan approval, with bulk and use variance relief, to construct a convenience store, and a gasoline filling station with six multi-product fuel dispensers, a kiosk, and a lighted canopy. As it relates to this appeal, Wawa sought a "(d)(1)" use variance, because convenience stores and gasoline filling stations are not permitted uses in the OG-1 zone.
Kenneth Muller, the Senior Regional Real Estate Manager of Wawa, testified that the proposed facility would be open seven days per week, twenty-four hours per day, providing service to the surrounding community during emergencies and severe weather conditions. The proposed convenience store and filling station would employ approximately fifty to seventy people, most of whom would be hired from the immediate area.
Richard Kenderian, a professional engineer, testified that in designing the proposed facility, Wawa had made efforts to minimize the impact on the adjacent Whispering Pines residential development.*fn1 For example, berming and tall landscaping would be erected to eliminate any headlight wash, and lighting on the site would be cast downward. As to issues of water management, Kenderian stated that drainage conditions in the immediate area are poor, and frequent flooding occurs on Jake Brown Road and within the Whispering Pines development. However, Wawa's proposed storm water management system would eliminate existing flooding conditions, and divert runoff away from the development. Concerning garbage, the convenience store would have an interior trash enclosure and trash compactor, and all refuse and debris would be stored within the building until picked up.
In response to the Board's concerns regarding the proposed gasoline filling station, Kenderian explained that the petroleum dispensing station would have a separate storm water management system designed to prevent any fuel from recharging into the site's drainage system. Moreover, the petroleum storage tanks would be state-of-the-art, double walled tanks with computer sensors that would signal an alarm if the interior walls were breached. In addition, a state-of-the-art vapor recovery system would be utilized, and the nozzles on the pumps are designed to immediately shut off if they are disturbed, to reduce the likelihood of a spill.
Kenderian and Kenneth Fears, a professional engineer and traffic expert, addressed the traffic impact of the proposed development. Kenderian explained that there would be two separate access points to the site, a two-way access drive on Route 516, and a one-way access drive on Jake Brown Road. No truck traffic would be allowed to enter the site from Jake Brown Road, and the one-way access drive on Jake Brown Road would be shared by the adjacent funeral home. This would permit a safer traffic pattern and create an acceptable "queuing" system for the adjacent funeral home. Additionally, "No Through Traffic" signs would be installed in the Whispering Pines development.
Fears testified that the proposed Wawa would not create an increase of traffic because at least 75% of the projected customers would be those who passed the site as part of another trip. Thus, the proposed Wawa would mostly provide a service to the traveling public already on Route 516. By contrast, an office building, which would be a permitted use in the zone, would create all new traffic.
Fears indicated, however, that Route 516 is a heavily traveled road, and the traffic signal at the intersection of Route 516 and Jake Brown Road would be slightly impacted with delay when the proposed Wawa was in operation. A stacking issue would occur, particularly when employees of the Blonder-Tongue factory, located on Jake Brown Road, are discharged at 3:00 p.m.
Fears opined that the site would have sufficient parking and aisle width, and that there would be adequate capacity for left and right turns into the site, as well as right turns out of the site. However, Fears conceded that if he had not included the signalized intersection at Route 516 and Jake Brown Road in his analysis, left turns out of the site onto Route 516 eastbound would be challenging. Moreover, although the traffic light at Jake Brown Road would permit comfortable right turns onto Route 516 westbound, access onto Route 516 eastbound would be more difficult. Furthermore, Fears testified that no designated left-turn lane on Route 516 eastbound was anticipated. Therefore, to prevent the occurrence of the stacking of vehicles when entering the site from Route 516 eastbound, traffic would pass on the widened shoulder.
Finally, Paul Phillips, a professional planner, testified that a use variance was needed because the proposed uses, a convenience store and gasoline filling station, were not permitted uses in the OG-1 zone. Phillips noted, however, that the Township's current master plan recommended a re-zoning of the Property to the community commercial (CC) zone. This recommendation recognized that the portion of the OG-1 zone where the Property is located had developed in a manner that is inconsistent with that zone, and that the character of the area surrounding the Property is consistent with a CC zone. Phillips opined that the proposed use would be compatible with existing uses in the area, which include a tire store, funeral home, a veterinarian's office, a dog groomer, gasoline service stations, and a shopping mall. Moreover, if the Property were in the CC zone, the proposed convenience store would be a principal permitted use, and the proposed gasoline filling station would be a conditionally permitted use.
Phillips further opined that the Property is particularly suited for the proposed use because of its size and dual access points. The size of the Property, approximately 3.6 acres, was more than adequate to accommodate the proposed use. Further, the dual access to the Property was highly desirable because it would allow for egress from the facility directly onto Jake Brown Road, which has a signalized intersection with Route 516, permitting freely moving left-hand turns at all times, including peak hours. Moreover, the "L" shape of the Property allows the placement of the convenience store and filling area close to Route 516, and somewhat removed from Jake Brown Road and other residential properties. The Property had previously been subdivided, consolidating two existing lots to create a larger lot that is consistent with the CC zone.
On February 2, 2006, the Board voted to deny Wawa's application. The Board's primary concern was the increased traffic that would be generated at and around the proposed site. In particular, traffic heading eastbound on Route 516 would have to enter the Property without a designated left-turn lane or traffic light, and because of vehicular stacking, traffic proceeding past the Property would be forced to travel on the shoulder. Further, due to the existence of a traffic light at the intersection of Route 516 and Jake Brown Road, vehicles exiting the site and attempting to make a left turn onto Route 516 eastbound would have to contend with stacked traffic and vehicles passing on the shoulder, which would present difficult merging issues. The Board found, that "[i]n view of the totality of the circumstances with a 25% increase in traffic and no substantive changes proposed to Route 516, significant traffic impacts [would] arise." An additional traffic issue expressed by the Board concerned tanker truck gasoline deliveries, which Wawa proposed to restrict to the Route 516 entrance.
Furthermore, the Board determined that a convenience store and gasoline filling station were not inherently beneficial uses to the community, and that Wawa was unable to prove that the project would not detrimentally impact the zone plan, or the Route 516 corridor. According to the Board, the zone already had an abundance of convenience stores, gasoline filling stations, and other retail uses, and therefore the proposed use would not provide a service lacking in the area.
Finally, the Board noted that although the master plan envisions a re-zoning of the area from an OG-1 zone to a CC zone, the governing body had not adopted any such re-zoning. Accordingly, the Board determined that the granting of a use variance was not warranted.
The trial court reversed the Board's resolution, and granted Wawa's development application. The court held that Wawa had established the requisite, positive criteria for a use variance under N.J.S.A. 40:55D-70(d)(1), determining that the Property was "particularly well suited for the proposed use and, with the help of unchallenged expert testimony before the Board, [Wawa] met the burden of proving that special reasons exist for the granting of a variance to allow the proposed  facility at the [Property]."
The trial court also found that Wawa adequately demonstrated the negative criteria for a use variance, showing that the proposed development would have "little or no negative impact on the surrounding properties." There was nothing in "the record that supported a finding that the proposed use would be a substantial detriment, other than the Board's traffic concerns which were squarely addressed by [Wawa's] experts," and "the testimony presented to the Board [was] adequate to show that a variance [could] be granted to [Wawa] without substantially impairing the intent and purpose of the zone plan and zoning ordinance." The trial court found that "[i]t [was] clear that the Board did not give proper weight to the unchallenged expert testimony in its decision to deny [Wawa's] application." Due to that failure, the court held that the Board's decision was arbitrary, capricious, and unreasonable.
On appeal, the Board argues:
[THE BOARD'S] DECISION TO DENY PLAINTIFF'S APPLICATION FOR DEVELOPMENT IS ENTITLED TO A PRESUMPTION OF VALIDITY WHICH THE TRIAL COURT FAILED TO RECOGNIZE.
THE TRIAL COURT INCORRECTLY DETERMINED THAT PLAINTIFF HAD SATISFIED THE REQUISITE CRITERIA TO SUPPORT THE REQUESTED VARIANCE RELIEF UNDER N.J.S.A. 40:55D-70d.
CONTRARY TO THE TRIAL COURT'S DECISION[,] PLAINTIFF FAILED TO DEMONSTRATE THAT THE PREMISES ARE PARTICULARLY SUITED OR PECULIARLY SITUATED FOR A CONVENIENCE STORE AND GASOLINE SERVICE STATION AND POSE NO SUBSTANTIAL DETRIMENT OR HARM TO THE PUBLIC.
PLAINTIFF'S CONTENTION THAT THE SUBJECT LOT WAS SPECIFICALLY DESIGNED AND APPROVED BY THE OLD BRIDGE TOWNSHIP PLANNING BOARD AS A LOT SUITABLE FOR PLAINTIFF'S PROPOSED USE IS FALSE AND NOT FACTUALLY SUPPORTED.
THE COURT'S STRICT RELIANCE THAT DEFENDANT PROVIDED NO EXPERT REBUTTAL TESTIMONY AS THE RATIONALE FOR REVERSING DEFENDANT'S DECISION IS INCORRECT AS A MATTER OF LAW.
The standard of review of the Board's decision is deferential, and is the same for both trial and appellate courts. Bressman v. Gash, 131 N.J. 517, 529 (1993). The decision of a board of adjustment is presumptively valid, and it may be reversed only if it is so unsupported by the record, arbitrary, capricious, or unreasonable that it amounts to an abuse of discretion. Cell South of N.J., Inc. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81-82 (2002). This deferential standard of review stems from the judicial deference to the discretion vested in local bodies by the Legislature, and the recognition that local officials who are familiar with their community's characteristics and interests are best equipped to assess the merits of an application for development. Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adj., 343 N.J. Super. 177, 198 (App. Div. 2001).
Because of their particular knowledge of local conditions, local zoning boards must be allowed wide latitude in the exercise of their delegated discretion. Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965). Therefore, "courts ordinarily should not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. Zoning Bd. of Adj. of N. Caldwell, 160 N.J. 41, 58-59 (1999).
As decisions of local zoning boards are presumed valid, the party attacking them has the burden of proving otherwise. Cell South of N.J., Inc., supra, 172 N.J. at 81. A court will not disturb a board's decision unless it finds a "clear abuse of discretion." Id. at 82.
Because of the strong legislative policy favoring land use planning by ordinance rather than by variance, the grant of a use variance will always be the exception rather than the rule. Sica v. Bd. of Adj. of Wall, 127 N.J. 152, 156 (1992). This policy is reflected in the statutory language that authorizes the grant of a "d" variance only in particular cases and for special reasons. Ibid. Consistent with this policy, greater judicial deference is ordinarily given to a zoning board's denial of a variance than to a grant. Med. Ctr. at Princeton, supra, 343 N.J. Super. at 199.
The Board argues that its decision to deny Wawa's application should have been affirmed because its decision was entitled to the presumption of validity, and Wawa failed to satisfy the positive and negative criteria for a use variance under N.J.S.A. 40:55D-70(d)(1). The Board also argues that the trial court's "strict reliance" on the fact that the Board "provided no expert rebuttal testimony as the rationale for reversing [its] decision [was] incorrect as a matter of law."
It is the applicant's burden to prove the special reasons (positive criteria) and lack of detriment to the public good (negative criteria) necessary for the Board to grant variance relief under N.J.S.A. 40:55D-70(d), which provides, in pertinent part:
The board of adjustment shall have the power to:
(d) In particular cases for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of this act to permit (1) a use or principal structure in a district restricted against such use or principal structure . . . .
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that 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 zoning plan and zoning ordinance.
In terms of the positive criteria "[a] use-variance application for a commercial use not permitted by the zoning ordinance must satisfy the statutory special-reasons standard."
Medici v. BPR Co., 107 N.J. 1, 18 (1987). That special reasons standard:
[H]as generally been defined in relation to the purposes of zoning, see N.J.S.A. 40:55D-2, and our decisions have emphasized the promotion of the general welfare as the zoning purpose that most clearly amplifies the meaning of special reasons. Although certain commercial uses may inherently serve the general welfare in a particular community, the typical commercial use can be better described as a convenience to its patrons than as an inherent benefit to the general welfare. For such uses, any benefit to the general welfare derives not from the use itself but from the development of a site in the community that is particularly appropriate for that very enterprise. [Ibid. (internal citation omitted).]
In Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adj., 388 N.J. Super. 67, 76 (App. Div. 2006), we stated:
Our case law recognizes three categories of circumstances in which the "special reasons" required for a use variance may be found:
(1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility; (2) where the property owner would suffer "undue hardship" if compelled to use the property in conformity with the permitted uses in the zone; and (3) where the use would serve the general welfare because "the proposed site is particularly suitable for the proposed use." [Ibid. (internal citations omitted).]
Furthermore, the only "special reasons" that may be considered by the Board are those that promote the general purposes of zoning. Medici, supra, 107 N.J. at 10, 18.
Here, the proposed use is commercial, and Wawa does not contend that it is an inherently beneficial use or that the use of the Property in strict conformity with the requirements of the zoning ordinance would create an undue hardship. Therefore, the application fell into the more common category of use variance applications concerning commercial uses that are not inherently beneficial. For such variance applications,
[T]he required proof of special reasons focuses exclusively on the special characteristics of the property and imposes on the applicant the burden of establishing either "that the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought," or that undue hardship exists because the property for which the use variance is sought cannot reasonably be adapted to a conforming use. [Stop & Shop Supermarket Co. v. Bd. of Adj. of Springfield, 162 N.J. 418, 431 (2000) (internal citations omitted).]
Particular suitability may be deemed a special reason where three criteria are met: "where . . . the use is one that would fill a need in the general community, where there is no other viable location, and where the property itself is particularly well-fitted for the use either in terms of its location, topography or shape." Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 210 (App. Div. 1999) (emphasis added). The test is whether the public benefits because of the community's need for the use itself. Ibid.
In denying Wawa's development application, the Board found that a convenience store and gasoline filling station were not needed in the community, noting that "[t]he zone in question already has an abundance of convenience stores, gasoline stations and other retail uses and therefore the proposed use will not provide a service lacking in the area."
In reversing the Board's resolution, the trial court did not address the issues of community need, or whether another viable location existed. Instead, the court found that the Property was "particularly well suited for the proposed use and, with the help of unchallenged expert testimony . . . [Wawa] met the burden of proving that special reasons existed for the granting of a [use] variance" because:
[T]here [was] testimony in the record that supports a finding that this property is uniquely suited for the proposed use. For example, Mr. Kenderian, a professional engineer, testified that the site area of about 3.4 acres "was specifically subdivided from the rest of the parcel for the proposed Wawa" and that the County has specifically approved the application for this type of use which is consistent with the municipal master plan. This testimony was not rebutted or controverted by other experts.
Also, a professional planner, Mr. Philips, testified that the property was particularly suited for the proposed use. He opined that the size of the lot is big enough for the proposed use; that the access to the site is highly desirable; that the proposed use will not generate much more traffic; and that the use is compatible with the other uses in the area. This testimony was also not rebutted or undermined in any way.
There is sufficient evidence in the record to support the conclusion that the Property is well fitted for the proposed use because of its location and shape. However, there is nothing to establish that the proposed use will fill a need lacking in the community, or that no other viable location existed. Therefore, we conclude that Wawa failed to satisfy its burden of establishing the positive criteria for a use variance under N.J.S.A. 40:55D-70(d)(1), that is, the particular suitability of the Property for the proposed use.
It is clear from the Court's holding in Medici that, although a property may be thought particularly suitable for a proposed use because the use fits well with the surrounding area, that does not equate to special reasons. Medici, supra, 107 N.J. at 24. In Medici, the zoning board had granted a use variance for a four-story motel with a restaurant on property zoned for industrial use, finding particular suitability of the property for the proposed use. The property was U-shaped, located at an intersection near Route 287, and surrounded by commercial-type uses. Id. at 5-6. The Court disagreed with the zoning board, observing that "[t]he fact that the site is near an interstate highway does not distinguish it from any other property in the vicinity of the highway." Id. at 24.
Similarly, in Pagano v. Zoning Bd. of Adj. of Edison, 257 N.J. Super. 382, 385 (Law Div. 1992), the applicants sought a use variance to operate a pistol range on a portion of the subject property, and to operate retail sales of hunting and fishing supplies on another portion, neither use being permitted under the applicable zoning ordinance. Although the trial court remanded the matter due to the board's failure to provide sufficient findings of fact, it noted that:
[T]he record is devoid of any proof demonstrating that the general welfare was advanced due to the location of the pistol range at that site. Even though the general welfare may admittedly be advanced by the proposed use, absent proof that the general welfare would not similarly be advanced by locating the pistol range at other locations, or proof that no other suitable sites exist, the applicants could not be said to have satisfied their burden of establishing the particular suitability of the [subject property] for the proposed use . . . . At best, the site was a "convenient" location for . . . residents and was sufficiently distant from residential or other developed areas so as to diminish the likelihood of danger or noises attributable to the use. [Id. at 392.]
See also Fobe Assocs. v. Mayor & Council & Bd. of Adj. of Borough of Demarest, 74 N.J. 519, 534 (1977) (denial of use variance application to construct garden apartments in a single-family-residence district affirmed where proof failed to establish that general welfare would be served because the site in question was particularly suitable for garden apartments).
Here, the record is devoid of any evidence proving that the general welfare would not similarly be advanced by constructing the proposed convenience store and gas station at other locations, or that no other suitable sites exist. Moreover, there is nothing in the record to prove that the proposed uses would fill a need lacking in the community. Indeed, as the Board found, the evidence is to the contrary. Thus, Wawa did not satisfy its burden of establishing the particular suitability of the Property for the proposed use. See Pagano, supra, 257 N.J. Super. at 392. Because Wawa failed to establish the necessary positive criteria for a use variance under N.J.S.A. 40:55D-70(d)(1), we reverse the order of December 6, 2006, and reinstate the resolution of the Board denying Wawa's land use application. We also reinstate Counts Two, Three, and Four of the complaint, challenging the validity of the Township's zoning ordinances, and remand the matter to the trial court to address the issues raised in those three counts.
Reversed and remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.