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Center Square Real Estate Development Co., Inc. v. Logan Township Zoning Board of Adjustment


March 24, 2008


On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Gloucester Counter, Docket No. L-984-06.

Per curiam.


Submitted: February 4, 2008

Before Judges C.S. Fisher and C.L. Miniman.

Plaintiff Center Square Real Estate Development Co., Inc. (Center Square), appeals from an order dismissing its prerogative writ action against defendant Logan Township Zoning Board of Adjustment (the Board) in connection with the Board's denial of a use variance for a parcel of land to be developed by Center Square as a Home Depot and a shopping center. We affirm.

Center Square proposes to develop property known as Block 1701, Lots 4.01 and 4.04, located at the interchange of Interstate Route 295 (I-295) and County Route 620, known as Center Square Road. The property is bound on the north by High Hill Road, on the east by Beckett Road, on the south by Center Square Road and on the west by I-295. Pureland Drive to the south forms a T-intersection with Center Square Road at about the midpoint of the property's southerly line and will be extended into the property as an access point. Harvest Road to the north forms a T-intersection with High Hill Road near the middle of the property's northerly line. Village Center Drive to the east crosses Beckett Road and extends into the property and will provide another access point. The third access point will be located off Beckett Road 250 feet south of High Hill Road.

This property is in Logan Township's interchange commercial zoning district (IC zone), which permits construction of hotels, motels, restaurants, banks, corporate office buildings, exercise facilities, day care centers, personnel-training centers, office buildings, and recreational facilities. Also included in the IC zone are conditional uses allowed by ordinance for service stations, repair garages and new and used motor vehicle sales and service establishments. Specifically excluded are strip retail stores and shopping centers.

Center Square seeks to construct a 132,659-square-foot Home Depot store and a 71,847-square-foot shopping center. Retail uses are not permitted in the IC zone. As a consequence, Center Square filed an application for a use variance with the Board on February 17, 2006. As part of its application, Center Square submitted a traffic impact study prepared by Shropshire Associates. The study focused on traffic during the weekday peak hours of 4:00 to 6:00 p.m. and Saturday from 11:00 a.m. to 2:00 p.m. and utilized data collected in 2003 and 2005.

The study projected an increase over then-current traffic levels of 829 trips during the weekday peak hours, consisting of 325 trips for the Home Depot and 504 trips for the shopping center. During the midday Saturday hours, the increase would be 1414 trips, consisting of 716 trips for the Home Depot and 698 trips for the shopping center. These estimates were based on data available from the Institute of Transportation Engineers (ITE), which estimates that shopping center pass-by trips are about one-third of total. Thus, the balance, 563 trips during weekday peak hours and 934 trips during the Saturday peak hours would be new trips. These are significant increases over other possible uses. For example, the study indicated that a manufacturing facility would generate 147 new trips during weekday peak hours and none on Saturdays. Low-rise apartments would only generate 174 new trips during peak weekday and Saturday hours.*fn1 No comparative data were given for permitted uses. The study also addressed the levels of service (LOS) at each intersection. LOS is graded from A through F and reflects the amount of time required to make right- and left-hand turns at intersections.

The Board conducted a public hearing on April 10, 2006. David Shropshire and Kendra A. Lelie, a professional planner, were accepted as experts and presented testimony regarding the impact of the project on the surrounding community.*fn2 As to the positive criteria, Shropshire testified that the site was particularly suited for a Home Depot because it was located at the I-295 interchange. He claimed that the Home Depot would draw a substantial amount of traffic from I-295, about fifty-five percent, but had no empirical data to prove this claim and the Board members questioned its validity. Shropshire testified from ITE data that the Home Depot would generate approximately 159 trips during morning peak hours, 325 trips during the evening peak hours, and over 700 trips during Saturday peak hours, when there is additional capacity on the roadways. Shropshire also testified that some of the trips would be "internally captured" from surrounding businesses, further reducing the increase in traffic to and from the development. He concluded that the traffic on Center Square Road would be local traffic because the entrance to the Home Depot property would be at the first traffic light to the east of I-295.

As to the negative criteria, Shropshire testified that there would be no substantial detriment to the public good and no impairment of the master plan and zoning ordinance. He pointed out that, if the thirty-four-acre site was filled with fast food restaurants, such intense use would generate as many trips as the Home Depot.*fn3 From that Shropshire concluded that the IC zone anticipated some fairly intense traffic. Thus, he concluded, there would be no substantial detriment to the public good. He also testified that the proposed development would capture I-295 traffic within the IC zone and minimize its spread throughout the township.

Board members asked numerous questions of Shropshire during the course of the public hearing. They particularly focused on the traffic impact and LOS. First, they questioned why the study did not include morning or later evening hours and why it relied on traffic counts from other, earlier studies. One member stated that traffic from I-295 was still heavy as late as 6:30 p.m. They questioned Shropshire about the stacking of cars on Beckett Road waiting to make left-hand turns onto High Hill Road, which the study projected would happen. In fact, the study indicated that the current LOS for left-hand turns was a D and would drop to an F if the project was developed. Shropshire explained that Center Square's proposed solution to the LOS of F was to add a left-turn lane, which would improve the LOS back to a D. Regarding the northbound ramp from I-295 to Center Square Road, the LOS would go from a D to an E for the left turn and from a C to a D for the right turn. From I-295 southbound to Center Square Road, the LOS would go from a D to an E. From Village Center Drive headed west, the LOS for a left turn would drop from an E to an F. Shropshire admitted that the Village Center Drive LOS could not be improved but testified that the LOS for the traffic coming off I-295 south could be improved by increasing the green light time, which would improve it over the existing LOS or, at least, not make it worse. Shropshire admitted doing so would negatively impact the LOS for the traffic exiting from I-295 north. The Board members also expressed concern regarding the congestion at the Pureland Drive intersection and traffic exiting from WaWa, Dunkin Donuts and McDonald's onto Center Square Road and expressed how difficult it is to get onto Center Square Road from those businesses. They also questioned whether the traffic would be coming from I-295, as Center Square's experts indicated, or through the roadways of the Township. In addition, they voiced concern over the number of trucks that would be making daily deliveries. The Board requested two stipulations, to which Center Square agreed, that if the project were approved, delivery trucks would only access the site from I-295 and no trucks would be permitted to stay overnight in the parking lot.

At the close of the hearing the Board voted on the variance. Two members voted in favor of the project, and five voted to deny the application. On May 8, 2006, the Board adopted a resolution memorializing its decision. That resolution included a ten-page recitation of the testimony, which concluded with the statement that board members "had not been convinced that, based on the testimony and evidence submitted, the proposed use would not result in a major and negative impact in traffic to local roadways."

On June 27, 2006, Center Square filed a complaint in lieu of prerogative writs to compel the Board to grant the variance. The Board filed an answer and on March 15, 2007, the court heard oral argument and affirmed the Board's denial of the application. The judge stated that the Board was not required to bring its own experts, that the Board's decision was based upon its particular understanding of the local situation, and that the Board was not required to accept the testimony of Center Square's experts. The court signed an order dismissing Center Square's claims on March 30, 2007. Center Square filed its notice of appeal on May 10, 2007.

Center Square raises two issues in this appeal. First, it urges that the Board's denial of the use variance was arbitrary, capricious and unreasonable because the record was devoid of any expert testimony or reports concerning a detrimental or negative impact from the project on local traffic. Second, Center Square argues that the resolution did not comply with the Municipal Land Use Law in that it does not set forth required findings of fact and conclusions of law, justifying a grant of the variance by us.

The scope of our review is limited. The decision of a municipal zoning board is entitled to substantial deference. Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965).

Courts reviewing a municipal board action on zoning applications are limited to determining whether a board's decision was arbitrary, unreasonable, or capricious. Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 198 (App. Div. 2001). It will not be disturbed absent a clear abuse of discretion. Cell S. of N.J. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81-82 (2002). A decision of a land use board is presumed to be valid and the party challenging the decision has the burden of proving otherwise. Id. at 81.

The legislative policy embodied in the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -92, favors land use planning by ordinance rather than by variance, with the use variance being the exception rather than the rule. Sica v. Bd. of Adjustment of Twp. of Wall, 127 N.J. 152, 156 (1992). Since variances tend to impair sound zoning, courts ordinarily give greater deference to the denial of a use variance than to a grant. Medical Ctr., supra, 343 N.J. Super. at 199; Omnipoint v. Bd. of Adjustment, 337 N.J. Super. 398, 416 (App. Div.), certif. denied, 169 N.J. 607 (2001); Funeral Home Mgmt. v. Basralian, 319 N.J. Super. 200, 208 (App. Div. 1999); Nynex Mobile Commc'ns Co. v. Hazlet Twp. Zoning Bd. of Adjustment, 276 N.J. Super. 598, 609 (App. Div. 1994). The same standard of review applies to an appellate court. Charlie Brown of Chatham, Inc. v. Bd. of Adjustment of Chatham, 202 N.J. Super. 312, 321 (App. Div. 1985).

With this standard of review in mind, we must determine whether the Board's denial of the use variance was arbitrary, capricious and unreasonable simply because the record was devoid of any expert testimony or reports concerning a detrimental or negative impact from the project on local traffic.

N.J.S.A. 40:55D-70(d) requires the applicant to prove both positive and negative criteria to obtain a use variance. Smart SMR v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998). The "positive criteria" require that an applicant establish "special reasons" for granting the variance. Sica, supra, 127 N.J. at 156. The "negative criteria" require the applicant to establish that the variance "can be granted without substantial detriment to the public good" and that its grant "will not substantially impair the intent and purpose of the zone plan and zoning ordinance." Ibid.

To satisfy the positive criteria, the applicant must demonstrate that the use promotes the general welfare because the proposed use is particularly suited to the site. Medici v. BPR Co., 107 N.J. 1, 4 (1987). The term "special reasons" derives its meaning from the purposes of zoning enumerated in N.J.S.A. 40:55D-2. Burbridge v. Mine Hill Twp., 117 N.J. 376, 386-87 (1990); see also Medici, supra, 107 N.J. at 10, 18 (the special reasons to be considered by a board are those that promote the general purposes of zoning). Here, there was little testimony respecting the positive criteria and how the project would benefit the public. Rather, the testimony centered on the negative criteria, and whether granting the variance would result in a substantial detriment to the public good. Indeed, the Board made no finding regarding the positive criteria, but determined that the project would be detrimental to the public good because it would cause an increase in traffic in the area. In determining the detrimental effect that might ensue from the grant of a variance, an increase in traffic has been determined to be an important factor. Sica, supra, 127 N.J. at 166.

In order to overturn the Board's denial, we must determine that the ultimate result reached by the Board in denying the application, on both of the positive and negative criteria was unreasonable, arbitrary and capricious. Mayer v. Bd. of Adjustment of Montclair, 32 N.J. 130, 139-40 (1960). If, however, the record supports the Board's decision, it must be upheld. Ibid.

The action of the Board enjoys a presumption of validity. Ward v. Twp. of Montgomery, 28 N.J. 529, 539 (1959). We may not substitute our judgment for that of the Board. Burbridge, supra, 117 N.J. at 385. A zoning board is not required to accept the views of the applicant's experts where the opinions of these experts are undermined by their lack of knowledge of the area and the site. Northeast Towers, Inc. v. Zoning Bd. of Adjustment, 327 N.J. Super. 476, 498 (App. Div. 2000). The law gives deference to the board's particular knowledge of local conditions. Burbridge, supra, 117 N.J. at 385. Here, the Board, with its particular knowledge of the local conditions, should be allowed wide latitude in the exercise of its discretion. Ibid.

Center Square bears a heavy burden of showing that the evidence was so overwhelmingly in its favor that the decision was arbitrary and capricious. Med. Realty Assoc. v. Bd. of Adjustment of Summit, 228 N.J. Super. 226, 233 (App. Div. 1988). The mere absence of evidence in support of denial does not mean that the Board's denial was arbitrary. Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141 N.J. Super. 1, 5 (App. Div. 1976).

Center Square challenges the Board's decision because the Board accepted Center Square's witnesses as experts, did not offer any competing expert testimony, and did not refute Center Square's experts. Therefore, Center Square claims that the Board's denial was arbitrary and capricious because there was no evidence in the record supporting the Board's determination that the traffic from the project would be any different than the traffic generated from one of the permitted uses. However, the Board is not required to secure competing expert testimony, nor is it required to accept the conclusions of the applicant's experts. Northeast Towers, Inc., supra, 327 N.J. Super. at 497-98. A board has the choice of accepting or rejecting the testimony of witnesses. Id. at 498. Where reasonably made, such a choice is conclusive on appeal. Ibid.

Here, the Board determined that the project would have a detrimental effect on the public good in that traffic would increase intolerably despite the expert's opinion that the increase could be remedied. The Board made this determination based upon its understanding of the local traffic conditions, its concerns regarding trucks accessing the site, and traffic coming from other areas through the roads of the Township. Indeed, Shropshire's report indicates that there would be a degradation in LOS at virtually every intersection surrounding the project site, many of which were already poor and near failing. Although this expert testified that some of the intersections could be restored to their current LOS, the proposed remedies were applicable to only a few intersections.

Center Square argues that the Board's concern that traffic would come through the Township's roadways and not via I-295 was speculative, and not based on any evidence. Center Square cites Cell South of New Jersey, supra, 172 N.J. at 87, for the proposition that the Board's experts should have been required to rebut Center Square's expert testimony. However, in that case, members of the community alleged that their property values would be lowered by granting the variance to build a cell tower. Id. at 80. The Court held that the board afforded undue weight to the community members' unsubstantiated allegations, whereas the weight of the evidence in the record was that the property values would not be affected. Id. at 88. Therefore, denial of the variance was arbitrary and capricious. Ibid.

This case is distinguishable from the Board's concerns here regarding traffic, with which they were obviously familiar as shown by the issues they raised. The very evidence submitted by Center Square relied on Home Depot studies of expected customer travel patterns that were not supplied to the Board because they were proprietary. Thus, the Board had no evidence before it that supported Center Square's claim that a certain percentage of traffic for the Home Depot and the shopping center would come from I-295. Without such evidence the Board's concerns about traffic flow were not arbitrary or capricious by any definition.

Center Square claims that the Board's concern regarding truck deliveries was adequately addressed because Center Square agreed to limit deliveries to times of day when traffic was light. Center Square agreed to the Board's stipulation that there would be no trucks left overnight in the parking lot and truck deliveries would only be made via I-295. However, here too, the Board is not required to accept Center Square's conditions if it still believed that the delivery trucks would have a detrimental impact on the community. Based on the fact that retail establishments were prohibited in the IC zone, the Board reasonably determined that the significant increase in traffic caused by the Home Depot would be detrimental to the community.

It was entirely reasonable for the Board to find that Center Square did not meet its burden of proving that there would be no significant negative impact on the traffic flow. The applicant has the burden of proving that the criteria are all met. Ring v. Mayor of Rutherford, 110 N.J. Super. 441, 445 (App. Div.), certif. denied, 57 N.J. 125 (1970), cert. denied, 401 U.S. 911, 91 S.Ct. 876, 27 L.Ed. 2d 810 (1971). The Board cited numerous facts that it found problematic regarding Shropshire's testimony, including the amount of tractor-trailer trucks that would make daily deliveries, that no alternate sites within the Township were considered, that the study indicated an increase in traffic during heavy traffic times, that the study was based upon data from 2003, and that the study did not include morning peak hours or evening hours past 5:45 p.m.

Unlike the board in New York SMSA v. Board of Adjustment of Weehawken, 370 N.J. Super. 319, 338 (App. Div. 2004), which was unfamiliar with the cell phone industry, this Board did not reject the expert testimony based only on "bare allegations or unsubstantiated beliefs." Here, the Board used its particular knowledge of the surrounding area to form an opinion as to the problems with traffic flow. We agree with the trial judge that the hearing was conducted in exemplary fashion and Center Square simply failed to assuage the Board's legitimate concerns.

Center Square next contends that the resolution did not comply with the Municipal Land Use Law in that it does not set forth required findings of fact and conclusions of law. Whether the requirements of the statute were met is a question of law, and the Appellate Division does not owe any deference to the trial court's conclusions. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). The Appellate Division reviews this legal question de novo. Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002).

The resolution was eleven pages long, and summarized Shropshire's testimony as well as issues that the Board raised regarding the study. The resolution concluded with the following language:

Several Board members voting "no" stated that they had not been convinced that based on the testimony and evidence submitted the proposed use would not result in a major and negative impact in traffic to local roadways or that the proposed "big box" use would generate no more traffic than other retail uses currently in the area.

Center Square argues that these are conclusory statements and not findings of fact. Center Square cites New York SMSA, supra, 370 N.J. Super. at 331-35, for the proposition that remarks made by members of the board do not satisfy the requirements of N.J.S.A. 40:55D-10(g), which provides, "The municipal agency shall include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision to writing." In New York SMSA, the court found that there were no findings of fact in the resolution. Id. at 332-33. When the board's decision was overturned by the trial court, the board argued that statements made in the course of the hearings should be incorporated in the resolution and considered to be the board's findings of fact. Id. at 333-34. The Appellate Division stated that such remarks may not be substituted for the formalities required by the statute. Ibid.

Here, by contrast, the findings of the Board were incorporated in the resolution, which stated that members of the Board were not convinced that the experts met their burden of proof regarding the negative criteria, i.e., the detrimental impact of traffic in the area. Center Square had the burden to prove that the project would not be a detriment to the community and the Board found that this burden was not met. The purpose of N.J.S.A. 40:55D-10(g) in requiring a board to state its findings of fact and conclusions of law is to ensure that the applicant and a reviewing court can understand what the Board decided and why. Here, the Board stated, in a manner understandable to Center Square and the reviewing courts, why the Board was denying the variance, i.e., because it was unconvinced that the project would not be detrimental to the community.


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