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Stavola Industries, LLC v. Brick Township Zoning Board of Adjustment

April 16, 2008

STAVOLA INDUSTRIES, LLC, PLAINTIFF-APPELLANT,
v.
BRICK TOWNSHIP ZONING BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-817-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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, ...


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