On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5450-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2007
Before Judges Cuff, Lihotz and Simonelli.
Plaintiffs 7-Eleven, Inc. (7-Eleven), the contract buyer, and Market Boulevard, L.L.C. (Market), the contract seller, filed an action in lieu of prerogative writs to set aside and reverse the Resolution of defendant Planning Board of the Borough of Elmwood Park (Board) denying 7-Eleven's application for preliminary and final site plan approval to construct and operate a 7-Eleven convenience store on property owned by Market. Plaintiffs appeal from the June 9, 2006 order affirming the Board's decision.*fn1 We reverse and remand to the Board for the granting of site plan approval.
The subject property is a pie-shaped undersized 14,463 square-foot corner lot located at the intersection of Boulevard and Market Street in Elmwood Park (the site). Boulevard runs north to south and Market Street runs east to west. There are existing crosswalks at all four points of the intersection controlled by pedestrian signals that are timed with the traffic signals.
Presently, there is a four-foot wide access walk into the site and three driveways providing access to the public road system: (1) on Market Street close to the intersection;*fn2 (2) on Market Street farther from the intersection; and (3) along Boulevard at the northern end of the site.
The site is located in a CG-General Commercial zone (CG Zone), adjacent to a bank and diner, located on property owned by intervenors Petrou Family Holdings, L.L.C., Peter Petrou and Sophia Petrou (Petrous). The proposed 7-Eleven is a permitted use in the CG Zone.
A gas station operated on the site for many years and closed in 1999. During that time, there were no restrictions on the size of trucks permitted to enter or exit the site, and no turning restrictions from the site onto Boulevard or Market Street.
On May 5, 2004, with Market's consent, 7-Eleven submitted an application to the Board for preliminary and final site plan approval and several bulk variances. 7-Eleven sought approval to demolish the gas station and construct and operate a 1774 square-foot franchisee-operated retail 7-Eleven convenience store.*fn3 The store would be open twenty-four hours a day, seven days a week. The application sought approval of required on-site parking, a designated loading area for delivery vehicles, free-standing building signs, area lighting, access driveways and aisles, and landscaping.
Because Market Street is Bergen County Route 12, 7-Eleven also submitted an application to the Bergen County Planning Board (County Board) for site plan approval for vehicular ingress and egress from the driveway on Market Street located farther from the intersection. The County Board approved the application, subject to certain conditions, to which 7-Eleven agreed.
The proposed building will be located at the northeastern end of the site, with a trash area enclosed by a fence and masonry walls in the rear to the north, and a loading area in the rear to the east. 7-Eleven decided to include a loading area in its application to satisfy its need for weekly truck deliveries and because it determined that a loading area would permit the site to better function by using proposed parking spaces for patrons rather than delivery vehicles. Although a loading area was not specifically required by the Elmwood Park Planning and Land Development Ordinance (the Ordinance), a variance was required here because the proposed loading area would be visible from Market Street.
The loading area is separated from pedestrian patron activity. Delivery trucks will visit the site no more than a few times a week for twenty to thirty minutes at a time. There is no dispute that a variance for the trash enclosure and loading area could be granted without substantially impairing the intent and purpose of the Ordinance and without substantial detriment to the public good.
The proposed 7-Eleven will have twelve off-street parking spaces located in front of the building, by the entrance facing Boulevard, and along the south side of the building facing Market Street. To permit access for deliveries, two of the parking spaces will be in front of the loading area and designated for employees only. Access to the site will be from the driveways on Market Street and Boulevard located farther from the intersection. Thus, a large fifty-five to sixty foot WB50 tractor-trailer truck (WB50 truck), making a delivery to the site will have access through the Market Street driveway from a westbound direction off Market Street, and would circulate through the driveway, across the front of the building, and back up into the loading area. After unloading, the WB50 truck would pull forward and make a left turn from the site onto Market Street. Smaller box and soda delivery trucks will have access to the site from either driveway, and can circulate around the front perimeter into the loading area.
The Board held several public meetings to review the application and determine whether it complied with the Ordinance. As a result of those meetings, the need for all of the variances, except one for the loading area, was eliminated. Thus, 7-Eleven revised the application and site plan to include only a variance for a loading area.
The Board concedes that the final site plan 7-Eleven submitted on September 8, 2004, complied with all of the Ordinance's standards for area, yard and bulk requirements for permitted uses in the CG Zone. Thus, site plan approval was warranted. However, the Board was concerned about: (1) problems the police had with a 7-Eleven located on Broadway (Broadway 7-Eleven), such as littering, loitering, narcotics and other criminal activity; (2) the Board's prior experience with the Broadway 7-Eleven's failure to abide by the terms of its site plan approval and enforce its franchise agreement; (3) possible increased cross-street pedestrian traffic, including danger to young children crossing the street to get to the 7-Eleven; (4) the hazard that vehicles exiting the site and making either a left turn onto Boulevard south or a right turn onto Boulevard north will cause to vehicles entering and leaving the bank and diner; and (5) daytime deliveries by WB50 trucks.
The Board's concerns arose, in part, from testimony by public objectors, such as the Chief of Police, who made it clear they did not want a 7-Eleven at the site. The Chief testified, "When you put a [7-Eleven] in an area it is no longer the same area. The town will change with this." The Chief also testified about the Broadway 7-Eleven, which he described as "a nightmare for [the police department]" because "[i]t became a hang out for kids" who played video games and "urinate[d] on lawns." The Chief also voiced concern about increased traffic volume generated by the proposed 7-Eleven in what he described as a "very, very, very busy and dangerous intersection and there [are] a lot of pedestrians and a lot of kids there." He stated the proposed 7-Eleven would attract children who would come from a water park and recreation center across the street. He also stated traffic at the intersection was already backed up during busy times of the day due to a high volume of traffic from the bank and diner, and the proposed 7-Eleven would add to that problem. The Chief concluded:
I don't know. It just doesn't seem like -- I'm just surprised when I heard that [7-Eleven] wants to come there. The only good thing, from a business point of view, they can make money there because there [are] a lot of people going by but it doesn't seem like that's the right place for a [7-Eleven], not that type of heavy business store. Personally, I wish the council would turn around and buy that piece of property and put a memorial up because that's what should be there.
Regarding traffic issues, 7-Eleven produced expert testimony from John Harter, a licensed professional engineer specializing in traffic engineering. Based on Harter's studies and research, he concluded: (1) the proposed 7-Eleven will not produce a significant increase in traffic at the intersection; (2) the two driveways are adequately sized to permit safe ingress to and egress from the site, with minimal delays at the driveways; (3) a WB50 truck would not create a dangerous on-site condition; (4) a box or soda truck could access the loading area without impacting any of the parking spaces; (5) the parking spaces are appropriately sized and meet the required standards; and (6) there would be sufficient queuing on the site for the minimal increase in traffic. Harter also opined as follows:
[T]he site would be a minimal new trip generator to the area. The site would generate pass by traffic so [there will] not [be] a significant impact [on] the traffic conditions. It is a good corner location for a convenience use because it has multiple [access] points that improve ...