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Gill v. Planning Board of the Township of South Brunswick


March 20, 2008


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1953-06.

Per curiam.


Argued January 16, 2008

Before Judges Axelrad and Sapp-Peterson.

Plaintiffs Kesar Gill (Gill) and Jean Dvorak (Dvorak) appeal from the January 3, 2007 order of Judge Edward J. Ryan affirming the decision of defendant Planning Board of the Township of South Brunswick (Planning Board) granting a bulk variance to defendant WaWa, Inc. (WaWa) for the construction of parking stalls in the front and side yard setbacks of its proposed gas station and convenience store. Judge Ryan concluded that plaintiffs were barred from challenging the Planning Board's jurisdiction to grant the bulk variance and that the proofs supported the grant of the variance. We affirm.

WaWa owns an 8.644-acre, rectangular-shaped parcel located at the southwest corner of the intersection of Cranbury-South River Road and Deans Rhode Hall Road. The parcel is located in the LI-4/C Light Industrial/Commercial Zone District (LI-4/C zone). The zone permits convenience stores to be operated on the parcel and also allows gasoline service stations as a conditional use. Wawa applied for approval for both a convenience store and a gasoline service station. Pursuant to the South Brunswick Zoning Ordinance (Ordinance), Section 62-1672(4), gasoline stations are permitted in the LI-4/C zone if they meet the following requirements:

a. There shall be a minimum of 5,000 feet between lots used for service stations or repair garages, which distance shall be measured horizontally from the nearest property lines. A lot used for such uses shall not be less than 500 feet from any lot used for a school, playground, place of worship, hospital, public building, place of public entertainment or fire station.

b. No unregistered motor vehicles shall be stored on the site. No junkyard shall be permitted, but nothing in this chapter shall prohibit the exterior storage of up to six motor vehicles awaiting repair. [(emphasis added).]

Wawa filed the application with the Planning Board on February 17, 2005. The proposed lot conformed to the lot size and width requirements of the Ordinance. Additionally, Wawa sought preliminary and final site plan approval with bulk variance relief for parking in the front and side yard and design waivers.

Craig T. Marshall (Marshall), South Brunswick Director of Planning, initially sent Wawa a letter on February 17, 2005, advising that a "conditional use variance is required since the [proposed] gas station is within 5,000 feet of another approved gas station[,]" which Marshall viewed as a deviation from the requirement of Section 62-1672(4)a of the Ordinance. Wawa's attorney, in a letter dated March 4, 2005, challenged Marshall's decision and noted that the "approved [gas station] . . . identified as triggering the restriction does not currently exist, is not 'used for service stations' and, therefore, does not serve to limit my client's right to develop its proposed station and related facilities[.]" He also pointed out that "all cases dealing with proximity restrictions have without exception dealt with 'existing' facilities." Marshall then sought an interpretation of the Ordinance from Benjamin S. Bucca (Bucca), the township's zoning board attorney. In a letter dated March 28, 2005 to Marshall, Bucca discussed Section 62-1672(4) of the Ordinance and opined that Wawa's application should be treated as a permitted use on the basis that, since the other gas station was not then being used as a gas station, WaWa's application "should be considered a permitted use." Marshall accepted Bucca's analysis and forwarded Wawa's application to the Planning Board as a fully complying conditionally-permitted use application.

Public hearings on the Wawa application were conducted on November 2, 2005 and December 12, 2005. The Planning Board heard testimony and considered evidence regarding the site plan, bulk variance for the site, and the design waiver. Wawa called as witnesses its regional real estate manager, a licensed professional planner and professional engineer, and a licensed professional engineer specializing in traffic jams.

During the December 12, 2005 hearing, the Planning Board invited public comment on the application. Darshin S. Grewal identified himself as a commuter who passed by the proposed site every day. He inquired:

I'm not very sure, but I've not researched this. It's up to the Board to research it. I understand that the distance between two gas stations cannot be less than 5,000 feet. . . . I'm pretty sure, it could be plus and minus very little, the distance is not more than 5/6th's mile, which is about 3[,]200 feet. I guess there is a conflict there, but it's up to the Board to clarify that. I've not seen that ordinance. I think there's an ordinance like that.

In response, the South Brunswick Planning Assistant, Brian Sullivan, explained:

I have a letter from Mr. Bucca[], the Zoning Board attorney because there was a question whether this application went to the Zoning Board or the Planning Board. And Mr. Bucca said, "From my reading of the language it appears as though the ordinance has a clear intent that a gas station is a permitted use, so long [as] it is not within 5,000 feet of the property that is presently being used for a gasoline station." And the compelling language to him was presently being used for.

And right now, although there is an application or there is a [gas station] being built on the corner, it's not built yet. So, therefore, he feels that doesn't [matter]. That's his interpretation.

Later, during the same hearing, plaintiff Dvorak spoke. She did not discuss whether the application deviated from the Ordinance, but she did voice her concerns that the proposed gasoline station would create traffic problems and result in more vehicular accidents at the intersection where it is located. Shortly after her remarks, the Planning Board's attorney, John Jorgensen (Jorgensen), revisited the question of whether Wawa's application, as proposed, was a permitted use properly before the Planning Board or whether, in the first instance, it should have been presented to the Zoning Board:

I've had an opportunity, yeah, to review Mr. Bucca's March 28th, 2005 memorandum. Board member [] or [] not[,] Mr. Bucca is the attorney for the Zoning Board. He's also one of the attorneys that does a lot of land use law, and in fact, I believe also teaches at Rutgers in some of the land use courses.

He has had an opportunity to review and research the issue on whether or not, on the particular issue asked of him of whether this application should be in front of the Planning Board or the Zoning Board. And he indicated that the LI-4C zone permits gasoline stations as long as there's a minimum of 5,000 feet between lots for those stations.

There is language that he has come across that deals specifically with lots used for service stations. And his review of the case law indicates that the case law only deals with a use that is currently in existence, not approved. The approval without the existence, there is no case law on that. The approval with it being in existence, there is case law that would prohibit it.

Also, he indicates that the LI-4C zone, the intent of the ordinance was to permit one gasoline station within that zone. The other station that we're talking about here is outside, is in a different zone. And you have as Mr. Bucca's opinion that if the Township were to bar development of the gas station in the LI-4C zone due to gasoline stations being located in other zones, but within 5,000 feet, that it would frustrate one of the purposes of the ordinance.

So, obviously, Mr. Bucca has done more research in the matter on the issue and after reviewing his letter memorandum, I would concur with the opinion that the fact that this is a gasoline station within 5,000 feet of the other gasoline station does not specific[ally] apply in this zone. And therefore, it's an application that can move forward and be considered by this Board.

Following the completion of public comment, Board Chairman Southwick stated:

The area is zoned for an application such as Wawa presented tonight and previously. The interpretation of Mr. Bucca, I remember when Mr. Bucca was what I would call a freshman land use attorney when he sat to my left on the Zoning Board. He's come a long way. He's an extremely astute attorney, not only a quick learner, but dedicated. And I had issues about that. I was concerned about the legal issue.

Having Mr. Bucca's letter and also having our own attorney's more than capable interpretation of it, I have to agree that legally I would find a very hard time denying this application. I'm not really a big fan of this application. I have to admit that too. I really don't love it. Really don't love what's happening out there in some ways. I don't love some of the things other boards in the town have done in the area.

But that's not what I'm here to do, to love it or not, to like it or not. My decision has to be based on the information, on the case presented. And though people might think I'm frivolous, I do take this seriously, not only running the meetings, but how I vote. And I'm going to vote yes. So, by a vote of [five] to two you have received your approval.

The Board's approval was subsequently memorialized in a resolution adopted by the Board on January 18, 2006.

On March 2, 2006, plaintiffs filed a Complaint in Lieu of Prerogative Writs challenging the Planning Board's jurisdiction to entertain WaWa's application for preliminary and final site plan approval with bulk variance relief for parking and the design waiver for off-street loading screening. Plaintiffs also challenged the Planning Board's resolution approving the application. Defendants filed answers to the complaint, and following the exchange of discovery in accordance with the trial court's Case Management Order dated July 17, 2006, a bench trial commenced before Judge Ryan on December 15, 2006. On January 3, 2007, Judge Ryan issued a written decision finding that the Planning Board had proper jurisdiction over the application and affirmed its decision granting approval of WaWa's application.

Plaintiffs filed their Notice of Appeal on February 16, 2007. They raise the following points for our consideration:







We have fully considered plaintiffs' arguments and, in light of our governing law and the record before us, find none of them sufficiently persuasive to warrant relief from the Law Division's January 3, 2007 order, which we hereby affirm substantially for the reasons expressed by Judge Ryan in his well-reasoned written opinion of the same date.


Plaintiffs urge the trial court erred in concluding that they were jurisdictionally barred from challenging Marshall's decision to forward WaWa's application to the Planning Board because they had no actual knowledge of when he made the decision and, further, to the extent the Planning Board proceeded to consider the application based upon an advisory opinion from the zoning board attorney, the attorney is not "an administrative officer" within the meaning of N.J.S.A. 40:55D-2. Hence, they contend the twenty-day period in which to appeal, administratively, a decision of a municipal officer to South Brunswick Township's Board of Adjustment was never triggered.

The Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-1 to -163, establishes administrative procedures for appealing decisions made by an administrative officer in enforcing a zoning ordinance or for requesting an interpretation of a zoning ordinance. To that end, N.J.S.A. 40:55D-72(a) provides that:

Appeals to the board of adjustment may be taken by any interested party affected by any decision of an administrative officer of the municipality based on or made in the enforcement of the zoning ordinance or official map. Such appeal shall be taken within 20 days by filing a notice of appeal with the officer from whom the appeal is taken specifying the grounds of such appeal. The officer from whom the appeal is taken shall immediately transmit to the board all the papers constituting the record upon which the action appealed from was taken.

Additionally, in actions in lieu of prerogative writs, "[e]xcept where it is manifest that the interest of justice requires otherwise, actions under Rule 4:69 shall not be maintainable as long as there is available a right of review before an administrative agency which has not been exhausted." R. 4:69-5 (Exhaustion of Remedies). Nonetheless, exhaustion of remedies under Rule 4:69-5 is neither a jurisdictional nor an absolute requirement. Brunetti v. Borough of New Milford, 68 N.J. 576, 588 (1975). Rather, it is "a rule of practice designed to allow administrative bodies to perform their statutory functions in an orderly manner without preliminary interference from the courts" and, in the interest of justice may be waived. Ibid.

Here, the record is not clear as to when Marshall made the decision to send WaWa's application to the Planning Board as a permitted use rather than forwarding it to the Zoning Board for a use variance review. It is clear, however, that at least as to plaintiff Dvorak, there was actual knowledge that WaWa's application was before the Planning Board rather than the Zoning Board because she attended both public hearings and spoke at the December 12 hearing. Moreover, while there is no evidence that plaintiff Gill attended the two hearings, he had constructive knowledge that WaWa's application was before the Planning Board rather than the Zoning Board. Under N.J.S.A. 40:55D-12(a), public notice of the hearing on WaWa's application was required. The contents of such notice shall state the date, time and place of the hearing, the nature of the matters to be considered and, . . . an identification of the property proposed for development by street address, . . . and the location and times at which any maps and documents for which approval is sought are available . . . . [N.J.S.A. 40:55D-12(b).]

Further, the notice must be given at least ten days prior to the hearing. Ibid. Gill does not argue that the Planning Board failed to satisfy its statutorily mandated notice requirements. Hence, assuming Gill was without actual or constructive knowledge of when Marshall made his decision to forward WaWa's application to the Planning Board for action, as of November 2, 2005, at the earliest, or as of December 12, 2005, at the very latest, he had constructive knowledge of Marshall's decision. No appeal to the Zoning Board of Adjustment pursuant to N.J.S.A. 40:55D-72(a) was taken within twenty days of either hearing. Therefore, Judge Ryan properly concluded that plaintiffs were barred from challenging the Planning Board's jurisdiction to hear WaWa's application, and nothing, in our review of the record, persuades us that in the interest of justice, the exhaustion of administrative remedies requirements should be relaxed. Brunetti, supra, 68 N.J. at 588.


In view of our determination that plaintiffs failed to file, with the local zoning board of adjustment, a timely appeal of Marshall's decision to forward WaWa's application to the Planning Board, we also agree that it was unnecessary for Judge Ryan to determine whether Marshall, after further review, acted properly when he reconsidered his initial decision, which was to forward the application to the Zoning Board, and instead determined that the conditions for use had been satisfied and consequently forwarded the matter to the Planning Board. We therefore turn our attention to plaintiffs' claim that the Planning Board's decision was arbitrary, capricious and unreasonable because WaWa presented insufficient proofs to warrant adoption of the resolution approving its site plan with variances.

When reviewing a planning board's decision, such as here, to approve a site plan application with variances, the New Jersey Supreme Court cautioned that "courts must recognize that local officials 'who are thoroughly familiar with their community's characteristics and interests and are the proper representatives of its people are undoubtedly the best equipped to pass initially on such applications for variance.'" Kramer v. Board of Adjustment, 45 N.J. 268, 296 (1965) (quoting Ward v. Scott, 16 N.J. 16, 23 (1954)). In that regard, we have previously held that trial courts should "accept as presumptively correct the action of the planning board" and "the determination of the planning board should be sustained, unless it is unreasonable, arbitrary or capricious." Florham Park Inv. Assocs. v. Planning Board of Madison, 92 N.J. Super. 598, 604 (Law Div. 1966) (citations omitted). Therefore, "the proper scope of judicial review [] is not to suggest a decision that may be better than the one made by the . . . planning board, but to determine whether the planning board could reasonably have reached its decision." Davis Enters. v. Karpf, 105 N.J. 476, 485 (1987) (citation omitted). In other words, the question for a trial court, as well as an appellate court, is whether the actions of the planning board were based rationally on the testimony before it. Amato v. Randolph Twp. Planning Bd., 188 N.J. Super. 439, 453 (App. Div. 1982).

Here, the Planning Board conducted two hearings before approving Wawa's application. Judge Ryan, in his written opinion, reviewed the evidence the Planning Board considered and found:

In this case, the Board heard credible testimony from experts, and reviewed their reports in support of the application. Both the testimony and the exhibits/reports support the Board's decision to approve the application, including the granting of the bulk variances pursuant to N.J.S.A. 40:55D-70C. The resolution of the Board indicates that the members were familiar with the conditions and uses of the property surrounding the site and the local needs of the Township of South Brunswick. The Board made specific findings at the time of this hearing which it set forth in its resolution. It considered testimony regarding the parking and traffic issues in justification for granting the variance relief for parking in the front yard and side yard setbacks. Specifically, the Board considered the testimony of Richard Kendarian, the Licensed Professional Engineer and Planner, Kenneth Muller, the Senior Regional Real Estate Manager for the Defendant Wawa, and Kenneth Fears, a Licensed Professional Engineer specializing in traffic.

Specifically, Mr. Kendarian testified that "In accordance with the Ordinance, no more than ten percent of the parking shall be permitted in the front yard behind the front yard setback. The proposed parking layout does not meet this requirement." He went on to explain that, "It is the nature of this particular use, which is permitted in the zone, that requires the layout that we've proposed as appropriate. And that is what is requiring the variance." These statements were offered to support the requirements of N.J.S.A. 40:55D-70.

The fact that [] the Master Plan provides and anticipates that a gas station would be built in the zone, as well as the fact that the conditions of use were deemed to be met, supports the fact that there is no detriment to granting variances required for the proposed use. The site is well suited for the use and the variances creating parking in excess of what is necessary reduces confusion and congestion on the site. The Board properly found, after considering all testimony presented to it, that the variance applied for was not inconsistent with the intent and purpose of the master plan and zoning and that the requested variances for the use, subject to the conditions placed on it, would have no adverse [e]ffect on the zone plan or the neighborhood in which it was located.

We are in agreement with Judge Ryan's conclusion that the Planning Board considered the evidence before it and, based upon its special expertise, reached a decision that was supported by the evidence. Nothing in the record supports the conclusion that the Planning Board's action in approving WaWa's application was arbitrary, capricious or unreasonable. Florham Park Inv., supra, 92 N.J. Super. at 604. Given the record before the Planning Board, Judge Ryan's deference to its expertise in arriving at its findings is supported by substantial credible evidence in the record. Kramer, supra, 45 N.J. at 296.



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