On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1953-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...