On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Gloucester Counter, Docket No. L-984-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...