April 16, 2008
STAVOLA INDUSTRIES, LLC, PLAINTIFF-APPELLANT,
BRICK TOWNSHIP ZONING BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-817-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 1, 2008
Before Judges Skillman, Winkelstein and LeWinn.
Plaintiff, Stavola Industries, operates an asphalt plant on Chambers Bridge Road in Brick Township. The plant is located on a tract of land near the Garden State Parkway, a municipal building, a school, and the Metedeconk River, from which the Township's drinking water is taken. Plaintiff applied to the Township Board of Adjustment for variances to demolish most of the existing structures on the plant site and replace them with more modern, environmentally friendly facilities, capable of producing asphalt at twice the current rate. Plaintiff also sought to add four 50.5-foot silos for storing up to 600 tons of asphalt, and to implement asphalt recycling capabilities.
The Board denied plaintiff's application, and the Law Division affirmed the Board. Plaintiff argues on appeal to this court that a use variance was not necessary for the changes it wished to implement,*fn1 and that the Board's denial of its application was arbitrary, capricious and unreasonable. We conclude that plaintiff's arguments are without merit and affirm.
In 2001, plaintiff purchased the property on which it operates a two-and-one-half-ton hot mix "batch" asphalt plant. The plant is located in an R-R-1 Rural Residential zone, which permits farming operations, single-family dwellings, public and private schools, municipal parks, playgrounds, municipally-owned buildings, volunteer first aid buildings, firehouses, and public libraries. Accessory and conditional uses include charitable institutions, churches, golf courses, public utilities, and sewerage treatment plants. Neither this nor any other zone in the Township permits asphalt production facilities. An elevated portion of the Garden State Parkway is located to the northwest of the facility. A branch of the Metedeconk River, a municipal building and a school are located nearby. A residential neighborhood is 800 feet away.
The facility is capable of producing one 2.5-ton batch of asphalt each minute, or 150 tons per hour. In addition to the plant, the site contains a scalehouse, an office, stockpiles of stone and sand, a 15,000-gallon horizontal liquid oil storage tank, and a 10,000-gallon fuel storage tank. The plant generally operates between 6:30 a.m. and 4:30 p.m. On average, approximately 100 trucks enter the site each day. The plant currently produces asphalt on an as-needed basis because it has no capacity to store manufactured hot mix asphalt. Customers must call and order ahead, so plaintiff knows how much asphalt to produce that day.
In October 2004, plaintiff filed its application for preliminary and final site plan approval and variances pursuant to N.J.S.A. 40:55D-70d(1), (2), and (6), proposing to substantially demolish the existing 2.5-ton plant and construct a new 5-ton plant. In other words, the existing plant produces 2.5 tons of asphalt per minute, and the new plant could produce five tons of asphalt each minute, or 300 tons per hour. The proposed height of the new building would be 50.5 feet, the same as the current height, exceeding the zone's maximum allowed height of 35 feet. Plaintiff also proposed to add four silos, each with a height of 50.5 feet, to be used to store 600 tons of hot asphalt. The plant would replace the 15,000-gallon horizontal liquid oil tank with two 30,000-gallon vertical tanks. The plant would have the same number of cold feed bins, which store raw aggregates taken from the stockpiles to be fed into the plant, and would also have a recycled asphalt pavement (RAP) bin. RAP is accumulated when existing roads are "milled up"; the milled material is reused in making new asphalt. The existing plant has no RAP capabilities.
The plant would contain an insulated, rather than an uninsulated, dryer, which would reduce noise. It would have a sealed burner to dry the aggregated materials, which would be "extremely quiet" as compared to the existing open air burner. Edward Potenta, an environmental consultant, testified that the predominant ambient noise at the site comes from traffic on the Garden State Parkway and Chambers Bridge Road. Jeffrey Meeker, the president of Meeker Equipment Company, testified that the proposed dryer and burner would reduce the noise emanating from the plant.
Lee Parisi, the plant's operations manager and quality control coordinator, testified that to implement these changes, the office, scale, lab and maintenance building, bag house, burner, and batch house would be demolished. The cold feed bin would be removed and replaced with a new one, and the existing tanks would be moved off site.
The plant layout would be significantly altered. Timothy Lurie, a licensed professional engineer, testified that the proposed office and scalehouse would be located farther onto the site so as to allow a greater number of trucks to queue on the site rather than on the outside roadway. The area of operations would be reduced from 3.14 acres to 2.59 acres, and the existing stockpile area would be reduced from 8.19 acres to 3.85 acres.
The proposed layout includes a 300-foot buffer area between the plant and the Metedeconk River. Existing stockpiles within that area would be relocated, and the buffer area would be reforested. Plaintiff offered to record a conservation easement over that portion of its property. Almost six acres of plaintiff's property would remain open space.
On the current site, the stormwater drainage consists of a pipe running to a drainage ditch; stormwater ultimately runs into the Metedeconk River. The proposed site will have a new stormwater drainage system consisting of a vegetated swale and an infiltration basin with a sand bottom. Lurie and Thomas Branch, plaintiff's director of engineering and development, testified that the new plant would generate "zero runoff," and stormwater would no longer discharge into the ditch. The proposed grading of the site would ensure that the runoff would be directed to the swale and infiltration basin.
During the course of the Board proceedings, which were conducted between March and December 2005, plaintiffs added two vortex inlets to the proposed system, into which all site drainage would run, designed to "help reduce the total suspended solids and hydrocarbon and debris." Plaintiffs also proposed adding a berm along the 300-foot river buffer to stop runoff from entering the buffer area.
Plaintiff is currently required to have a New Jersey Pollution Discharge Elimination System (NJPDES) permit, and during the Board's hearings plaintiff was engaged in the application process. Stormwater improvements on the site are contingent upon permit review by the Department of Environmental Protection (DEP). Lurie testified that a DEP representative reviewed plaintiff's stormwater drainage plan and was "satisfied with [its] system," but plaintiff had not received official DEP approval. He also admitted that the plan only employed two of eleven "best management practices" (BMPs) listed in the Stormwater Best Management Practices Manual; however, he added that the DEP standards require eighty percent total suspended solid removal, and that the proposed improvements would provide a ninety-four percent removal rate.
Liz Davis, the director of site and remedial investigation for Environmental Waste Management Services, testified that her company had been retained to complete Industrial Site Recovery Act*fn2 (ISRA) compliance at plaintiff's site. Her company initially found potential groundwater contamination and soil contamination and took remedial measures and began monitoring groundwater; no groundwater contamination was found to migrate off the site. The remediation resulted in plaintiff's meeting soil standards. A limited area of the site would be remediated upon the plan's approval. Davis attributed these contamination problems to old underground storage tanks that have since been removed. An additional, recently-installed monitoring well showed no "volatile organics or base neutral[ compounds]" in the direction of the stream. While perchloroethylene (PCE) and tetrachloroethylene (TCE) were found in the ground, Davis testified that plaintiff does not use those chemicals. She would not expect those chemicals to exist on roadway surfaces or in RAP.
Groundwater flows from the front of the property to the rear of the property; Davis testified that groundwater probably intersects with the Metedeconk River. She acknowledged that a barrier would be unable to stop groundwater from reaching the river, but stormwater could be intercepted.
Plaintiff intends to take measures to control air pollution and dust at the site. Plaintiff uses water trucks to keep dust levels down near the stockpiles, but "airborne materials" currently emanate off the stockpiles. When stone and other aggregates are dumped, dust rises. On the proposed site, the stockpiles would be at a lower elevation, minimizing the amount of dust generated. Meeker testified that the new facility would have better air pollution controls, emitting fewer parts per million of hydrocarbon and carbon monoxide.
At the present facility, fifteen minutes elapse from the time a truck picking up asphalt enters the site until it leaves the site. In the proposed plant, due to the creation of more space inside the site and the ability of the new facility to store hot asphalt in silos, trucks would take approximately five minutes to complete their pickups. The increased space would also enable trucks to avoid lining up outside the plant on Chambers Bridge Road, and the quicker turnaround would reduce the time truck engines idle as they are waiting. John Rae, a traffic engineer, testified that the level of service on the intersection near the plant would remain the same, even if plaintiff were to provide asphalt to twice the number of trucks that it presently does, and that enabling more trucks to operate inside the site would mitigate the effect on traffic outside the site.
To recycle, asphalt "millings" would be brought to the plant and temporarily stored in open-air stockpiles until they are put into the asphalt mix. Parisi testified that at most, 2500 tons of recyclable millings would be stored at the plant at any given time. When a member of the Board expressed concern that the millings might contain contaminants, and that as water runs through them, there will be "leaching" as the water picks up those contaminants, Parisi testified that the DEP does not require testing of millings; plaintiff only tests the milled material to determine the percentage asphalt.
Meeker testified that the asphalt industry no longer builds 2.5-ton plants, due to market demands. The existing plant could be retrofitted to meet new efficiencies and technologies, but doing so would be costly. The cost of retrofitting the existing plant would be $1.5 million to $2 million, while constructing the proposed plant would cost $2 million to $2.5 million.
Branch testified that the ability to store 600 tons of hot asphalt does not necessarily mean that the plant would produce and store asphalt to full capacity. In the existing plant, plaintiff must start and stop production whenever trucks arrive for material; in the proposed plant, the storage capacity will permit plaintiff to operate the plant for a shorter amount of time, and allow trucks to move in and out of the plant more quickly. Parisi testified that although the new facility would be capable of storing 600 tons of asphalt and producing five tons per minute, the actual increase in asphalt production would be approximately twenty percent.
Peter Steck, a licensed planner, testified that plaintiff has a hardship, given that its property is not suitable for single family homes because of the noise generated by the Garden State Parkway and the site's proximity to the municipal building. He testified that the proposed facility will promote the free flow of traffic; produce a desirable visual environment; and reduce the threat to the environment given the improved equipment, the stormwater system, the buffer area and a new sewer line. He asserted that the negative criteria have been met for expansion of a nonconforming use, given the enhanced setbacks from the river, improved dust and air quality controls, and "[t]he fact that there are no residential neighborhoods in proximity." He also testified that the positive and negative criteria were met for the requested height variances.
The Township Municipal Utilities Authority (MUA) presented the testimony of Robert Karl, its sourcewater administrator. The MUA provides drinking water to over 100,000 people in Brick Township and other municipalities, and seventy percent of its sourcewater is supplied by the Metedeconk River. Sixty-three to seventy-nine percent of the river's water comes from "base flow," or the direct discharge of groundwater into the river, and during periods of low precipitation, one hundred percent of the flow comes from groundwater.
Plaintiff's facility is one-half mile upstream from the MUA's water intake, where in 1997 or 1998, the MUA identified the contaminant PCE. Karl testified that at one of the MUA's monitoring sites, "adjacent to [plaintiff's] site downstream," PCE was detected in the amount of almost twenty-three parts per billion; the State limit for drinking water is one part per billion. Karl claimed that plaintiff's proposed system of infiltration is "not an effective BMP or not a recommended BMP or not even an allowed BMP for these types of sites," and that although the vortex system removes pollutants, sediment, hydrocarbons, and oil, "anything dissolved in the water will pass through [it]." He admitted, however, that the swale "[would treat] a large portion" of its water, and that the MUA has not identified the source of the PCE.
David Harpell, the Regulatory Compliance Supervisor for the MUA, testified that the facility should have had a NJPDES permit since 1996, that plaintiff was operating without one, and that plaintiff's application for the NJPDES permit was "technically rejected" in November 2005 as incomplete. He also testified that RAP millings are not an acceptable material under the NJPDES general permit, but that plaintiff may have to obtain an individual permit. Harpell claimed that other facilities belonging to plaintiff, located in other municipalities, received seventy-four NJPDES violations dating back to 2001. Nevertheless, the DEP has not issued plaintiff any violations for plaintiff's Brick plant operations.
The Board voted to deny plaintiff's application, memorializing its decision in a January 18, 2006 resolution. After summarizing the testimony, the Board listed its findings and determinations, including the following:
e. The introduction of RAP and the added number of stockpiles of materials used in the process of the production of asphalt, increases the potential of [contaminants] entering the Metedeconk River through surface or subsurface infiltration. The Board notes that the applicant proposes to utilize only two of the . . . [BMPs] required by the NJDEP for industrial uses. While the Board recognizes that the NJDEP will determine whether BMP[s] are being followed, the Board notes that there is a question whether the system proposed by the applicant . . . may be used for this type of facility. The Board also notes that the stockpiles are proposed to remain open, which increase the possibility of pollutants reaching the Metedeconk River. . . . f. . . . [T]he Board finds that the public welfare might be impaired by the introduction of contaminants into the Metedeconk River as a result of the expanded activities of this industrial use. g. . . . The Board finds . . . that the proposed expansion would increase the useful life of the plant and perpetuate its existence[.] . . .
h. The proposed expansion of the plant will result in the production of substantially more asphalt product. . . .
[A]additional contaminants, whether airborne or carried by surface or subsurface water flow, may pollute this important source of potable water.
i. If the expansion of the plant is approved, there will be an additional flow of heavy vehicles carrying materials to and from the plant. Vehicles waiting to be loaded will generate additional airborne pollutants.
k. . . . The Board finds that the proposed expansion of this use is not compatible with various public activities in this sector of the community . . . .
m. The existing asphalt plan[t] can be brought into compliance with environmental laws and regulations, and a clean[-]up of the site can be accomplished without dismantling and/or removing the existing facilities and equipment.
n. No special reasons were offered by the applicant to support the granting of this use variance. Evidence demonstrates potential economic gain to the applicant; however, the Board finds that this reason does not support the grant of a use variance. . . .
o. Applicant's lack of compliance with NJDEP laws and regulations challenges the credibility of testimony projecting future compliance with these provisions. At present, applicant has failed to secure all necessary permits to lawfully conduct its current operations at the site.
p. . . . The Board finds that the proposed extension of the useful life of this nonconforming use is contrary to a fundamental land use goal seeking to amortize or eliminate nonconforming uses.
q. The current plant . . . operates at peak capacity approximately five days each year. This negates the need to double the plant's capacity and add the new feature of processing RAP at the site.
s. No competent evidence was produced to demonstrate that the current plant can be expanded without substantial detriment to the public good nor was evidence produced demonstrating that the proposed use is inherently beneficial to the community.
t. Expansion of this nonconforming use would place an undue burden upon neighboring property owners, and increases an environmental risk to the general public.
v. Testimony produced by the BTMUA convincingly demonstrates that expansion of the asphalt plant will have a negative environmental impact upon the Metedeconk River, and jeopardize the principal source of potable water distributed to the public. This conclusion is based upon the applicant's proposal to double the size of the plant, introduce RAP processing and increase stockpiles of materials at the site, all of which substantially increase the possibility of contaminants entering the Metedeconk River. Applicant's failure to secure all necessary permits to operate this site and its failure to properly maintain the site until shortly before this development application was filed coupled with its extensive negative history of NJDEP violations at other sites, demonstrates that the public water supply will be placed in jeopardy.
On appeal to the Law Division, Judge Peterson found sufficient evidence to support the Board's determination that a new plant would cause an additional flow of heavy vehicles to the site. He determined that aesthetic improvements, environmental protections, and RAP capabilities could be implemented without demolishing and rebuilding a facility capable of doubling its current output. He found that the record supported the Board's finding that energy use would increase.
The trial court acknowledged the "heightened degree of concern" regarding the drinking water supply in the nearby Metedeconk River. The court deferred to the Board's "knowledge of its own community" in supporting the Board's conclusion that the replacement plant would not be compatible with the other uses located in the zone. The court ultimately found that plaintiff did not show that the Board's decision was arbitrary, capricious or unreasonable.
The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, provides that the board of adjustment has the power to "grant a variance to allow departure from regulations pursuant to article 8 of this act to permit: (1) a use . . . in a district restricted against such use . . . [or] (2) an expansion of a nonconforming use . . . ." N.J.S.A. 40:55D-70d. A "nonconforming use" is "a use or activity which was lawful prior to the adoption, revision or amendment of a zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reasons of such adoption, revision or amendment." N.J.S.A. 40:55D-5. "Any nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the structure so occupied and any such structure may be restored or repaired in the event of partial destruction thereof." N.J.S.A. 40:55D-68.
It is not disputed that plaintiff's operation of an asphalt plant in an R-R-1 zone is a nonconforming use. Although plaintiff claims that the modernization of its plant did not require a variance because the improvements were not an expansion of the nonconforming use, we disagree.
A prior nonconforming use is generally "restricted to its character and scope at the time the ordinance making it a nonconforming use was enacted." Fred McDowell, Inc. v. Bd. of Adjustment, Twp. of Wall, 334 N.J. Super. 201, 214 (App. Div. 2000), certif. denied, 167 N.J. 631 (2001). The focus in expansion of nonconforming use cases is "the quality, character and intensity of the use, viewed in their totality and with regard to their overall effect on the neighborhood and the zoning plan." Town of Belleville v. Parrillo's, Inc., 83 N.J. 309, 314 (1980). "[N]onconforming uses may not be enlarged as of right except where the enlargement is so negligible or insubstantial that it does not fairly warrant judicial or administrative notice or interference." Grundlehner v. Dangler, 29 N.J. 256, 263 (1959). "[W]here there is doubt as to whether the enlargement is substantial rather than insubstantial it is to be resolved against the enlargement." Id. at 264.
In some instances, the modernization of a plant or equipment alone may not necessitate the need for a variance for the expansion of a nonconforming use. See Lane v. Bigelow, 135 N.J.L. 195, 198-99 (E. & A. 1947) (proposal to modernize an automobile service station by removing thirty-five feet of building frontage so as to enlarge the entrance and to "modernize" the structures did not "enlarge" the existing use); William M. Cox, New Jersey Zoning and Land Use Administration § 11-5 at 288 (2008) ("Modernization of plant or equipment is generally permissible as long as it entails no enlargement."). Nevertheless, expansion of a business is an expansion of a nonconforming use. See, e.g., Pieretti v. Mayor & Council, Town of Bloomfield, 35 N.J. 382, 389 (1961) (expansion of bottling business from six trucks and eleven employees to fifteen trucks and forty-two employees constitutes an expansion of a nonconforming use). For example, we have held that the owner and operator of an automobile service station, who proposed to demolish the existing structure and erect a new building on the property, larger in size by 388 square feet, had proposed "an enlargement of his nonconforming use." Hay v. Bd. of Adjustment, Borough of Fort Lee, 37 N.J. Super. 461, 463, 467 (App. Div. 1955). "[C]ase law and legislative enactment point clearly to a policy that pre-existing discordant uses should be reduced to conformity as speedily as is compatible with justice." Id. at 464.
Here, plaintiff's proposal constitutes an enlargement or expansion of its current nonconforming use. Even though the proposed facility would only take up an area of 2.59 acres instead of the current 3.14 acres, plaintiff proposed to construct several new buildings, including four new silos capable of storing 600 tons of asphalt, and a new plant capable of producing 5 tons of asphalt per minute, as opposed to the current plant's capability of producing 2.5 tons per minute. Plaintiff also intends to introduce RAP stockpiles onto the property to incorporate recycling technology into its operations. Plaintiff expects its production to increase by twenty percent. This evidence represents an expansion of the scope of plaintiff's asphalt production.
Plaintiff intends to demolish the existing plant. The office, scale, lab and maintenance building, bag house, burner, and batch house will be demolished. The cold feed bin would be removed and replaced. Plaintiff's actions are the substantial equivalent of the "total destruction by design" discussed in Hay, supra, 37 N.J. Super. at 465, which effectually terminates the nonconforming use. Thus, plaintiff may not construct the proposed facility without a variance.
In evaluating plaintiff's appeal from the denial of a variance, our standard of review is the same standard as that of the trial court when it considers an appeal of a municipal board's action. Cohen v. Bd. of Adjustment, Borough of Rumson, 396 N.J. Super. 608, 614-15 (App. Div. 2007); New York SMSA, Ltd. P'ship v. Bd. of Adjustment, Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). "[A] decision of a zoning board may be set aside only when it is 'arbitrary, capricious or unreasonable.' . . . A Court will not substitute its judgment for that of a board 'even when it is doubtful about the wisdom of the action.'" Cell South of N.J., Inc. v. Zoning Bd. of Adjustment, W. Windsor Twp., 172 N.J. 75, 81 (2002) (citations omitted); Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296-97 (1965).
"Boards of adjustment, 'because of their peculiar knowledge of local conditions, must be allowed wide latitude in the exercise of the delegated discretion.'" Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990) (quoting Medici v. BPR Co., 107 N.J. 1, 23 (1987)). We "will not disturb a board's decision unless we find a clear abuse of discretion." Cell South, supra, 172 N.J. at 82; see also Kramer, supra, 45 N.J. at 296-97. "[A] board's denial of a variance is entitled to greater deference than a decision to grant the variance." Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 38 (App. Div. 2003).
The MLUL provides that a board of adjustment has the power to:
d. In particular cases for special reasons, grant a variance to allow departure from regulations . . . to permit: (1) a use or principal structure in a district restricted against such use or principal structure, [or] (2) an expansion of a nonconforming use. . . .
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance. [N.J.S.A. 40:55D-70d.]
Before granting a variance, a board of adjustment "must make two critical findings: (1) that 'special reasons' exist for the variance, and (2) that the variance 'can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.'" Burbridge, supra, 117 N.J. at 384-85; Kohl v. Mayor & Council, Borough of Fair Lawn, 50 N.J. 268, 276 (1967).
There are three categories of circumstances in which "special reasons" may be found:
(1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility; (2) where the property owner would suffer "undue hardship" if compelled to use the property in conformity with the permitted uses in the zone; and (3) where the use would serve the general welfare because "the proposed site is particularly suitable for the proposed use." [Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 76 (App. Div. 2006) (citations and quotations omitted).]
Plaintiff does not argue that the proposed use is inherently beneficial to the public. Nor has plaintiff submitted sufficient evidence to show that it would suffer an undue hardship if forced to continue the operation of its present asphalt plant rather than construct a new one. Indeed, plaintiff asserts that if its application is denied it will continue to operate at the site into the future. Thus, the question becomes whether plaintiff has proved that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use. Medici, supra, 107 N.J. at 18. In addressing this issue, when considering an application to expand a nonconforming use, a municipal board faces competing considerations: "[I]f the variance is denied, the hope is that the nonconforming use will wither and die; on the other hand, as long as the nonconforming use exists and is thriving, the Board . . . would want to make it conform as best it could." Burbridge, supra, 117 N.J. at 388.
On appeal, plaintiff points to the following factors, which it considers to be "special reasons":
[The new facility will:] (i) materially enhance the environmental protections and controls of its operations, including reducing or eliminating storm water runoff, air and noise pollution; (ii) provide for asphalt recycling capabilities mandated by State statute and overriding public policy; (iii) conserve valuable energy resources; (iv) aesthetically improve the site in order to create a more desirable visual environment for the surrounding community; and (v) improve traffic control and public safety.
Although these may constitute special reasons under appropriate circumstances, the record supports the Board's finding that plaintiff's asserted special reasons were not sufficient to warrant a use variance.
Plaintiff points to the environmental benefits of the new facility. No doubt, the promotion of recycling is a "special reason," as it is an enumerated purpose of the MLUL. N.J.S.A. 40:55D-2o. The recycling of asphalt is promoted in New Jersey. See N.J.S.A. 27:1B-25.2 to -25.3. And here, plaintiff's expert planner testified that when the State issues paving contracts, bidders must receive recycled materials.
That said, as the trial court observed, plaintiff has not shown that the recycling operation could not be implemented without the proposed increase in asphalt production capability and the rebuilding of an entirely new plant. Furthermore, although the record shows that the proposal will reduce or eliminate stormwater runoff, the Board observed that "[t]he existing asphalt plan[t] can be brought into compliance with environmental laws and regulations, and a clean[-]up of the site can be accomplished without dismantling and/or removing the existing facilities and equipment." In other words, plaintiff did not present evidence that constructing a new facility, with double the production capacity and the ability to store asphalt, was the only way to upgrade its environmental standards. In fact, Meeker testified that the plant could be retrofitted to meet DEP standards for between $1.5 and $2 million. Plaintiff apparently has made a business decision that the cost to upgrade is too high; that does not mean that an upgrade could not be done without the proposed increase in production.
Plaintiff claims that the aesthetic improvements brought about by the new plant constitute special reasons. Aesthetically improving the site can be considered a special reason to justify a variance to expand a pre-existing nonconforming use. Burbridge, supra, 117 N.J. at 387; see also N.J.S.A. 40:55D-2; (a proper objective of the MLUL is to "promote a desirable visual environment"). Nonetheless, plaintiff has failed to prove that aesthetic improvements cannot be made without constructing a new facility.
Plaintiff also points to the traffic improvements that will be fostered by the layout of the new facility. See N.J.S.A. 40:55D-2h (a purpose of the MLUL is to promote the "free flow of traffic"). Although traffic control may be improved by allowing trucks to queue inside the site rather than on the road, Parisi testified that under the new plan there would be "a lot more trucks" being loaded in the plant. The Board found that the expansion of the plant will result in "additional flow of heavy vehicles carrying materials to and from the plant." The record supports this finding.
Plaintiff asserts that the new facility will "conserve valuable energy resources." Though the testimony before the Board indicated that the proposed facility would be more energy-efficient, as the trial court observed, inherent in the Board's findings is that, given the potential for increase in the volume of operations at the proposed facility, an even greater amount of energy might be used, even if the technology is more energy-efficient. It is reasonable that an increase in the volume of production could result in an increase in the consumption of energy, despite the greater efficiency of the technology. And too, although plaintiff argued that the amount of asphalt it produces is determined by market demand and not by the storage or production capabilities of the plant, it admitted that it was hoping to acquire twenty percent more business.
The Board's finding that the proposed plan is not compatible with the master plan and zoning ordinance is supported by the testimony. A residential neighborhood is 800 feet away, and a high school is nearby. The Township municipal building is located in the immediate vicinity. Acceptable uses, according to the zoning plan, are farming operations, single-family dwellings, public and private schools, parks, playgrounds, municipal buildings, and libraries. A larger asphalt plant, with a significant number of trucks coming and going, is incompatible with these uses. Aside from the plant's proximity to the Garden State Parkway, plaintiff has not demonstrated that the proposed use is particularly suited for this site.
We next turn to the issue of the plant's obsolescence. A determination of the grant of a variance partially depends on whether a nonconforming use "will wither and die." Burbridge, supra, 117 N.J. at 388. Here, the Board found that "[e]vidence demonstrates potential economic gain to the applicant," and that "the proposed expansion would increase the useful life of the plant and perpetuate its existence." These findings are supported by the testimony and are otherwise a fair inference from the evidence presented to the Board. Meeker testified that the life span of an asphalt plant is twenty to thirty years. Although it is not clear from the testimony how long plaintiff would continue operations at the Brick site in the event of a denial of this variance, it is logical to conclude that economics may ultimately dictate the operation's demise at this location. A fair inference from the testimony is that plaintiff may, at a future time, need a new facility to compete in the marketplace. The Board's finding that the "new equipment and structures will extend the life of this nonconforming use" is reasonable based on the record.
Thus, even in light of the existing special reasons, such as the promotion of recycling and other environmental advantages of a new plant, the testimony provided the Board with valid reasons to deny the use variance. The additional volume of trucks, the potential expansion of business, the potential for greater asphalt production, the existence of airborne particles drifting off present stockpiles, and the extended life span of a nonconforming use all support the Board's decision.
Plaintiff claims the Board made inappropriate findings, to the effect that the construction of the plant would create significant environmental dangers. We agree that the Board's findings relating to environmental dangers, particularly as to the potential pollution of the Metedeconk River, were not supported by the record. Nevertheless, given the Board's findings that we have articulated above, including the increase in the volume of trucks coming to and from the plant, and the expansion and extension of the life of plaintiff's nonconforming use, the lack of evidentiary support for the Board's findings relating to the environmental dangers does not warrant reversal.
Plaintiff has made a number of other arguments that we choose not to address, as they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Accordingly, we affirm.