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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...