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Jack Pedowitz Enterprises, Inc. v. Township of Branchburg Planning Board


May 2, 2008


On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1217-06.

Per curiam.


Argued April 14, 2008

Before Judges Parrillo, S.L. Reisner and Gilroy.

In this action in lieu of prerogative writs, appellant Township of Branchburg Planning Board (Board) appeals from an order of the Law Division granting respondent Jack Pedowitz Enterprises, Inc., d/b/a Pedowitz Machinery Movers (Pedowitz) minor site plan approval, reversing the Board's earlier denial as arbitrary and capricious. We affirm.

The property in question is an 8.691-acre site located in Branchburg's I-2 industrial zone near Route 202. There is another industrial user occupying the parcel to the south, and the site is adjacent to a residential zone, with single-family residencies to the northeast and a townhouse development to the east.

The owner of the property, Branchburg Trade Center SK Associates, LLC (owner), obtained site plan approval for the building thereon in 1997. As a condition to that approval, the owner erected a twelve foot high noise barrier or wood fence located to the north and east along the rear paved parking area that abuts to the residential zone and remains today. The original contemplated development of the building was in phases. The first phase, comprised of 13,650 square feet of office and 38,670 square feet of warehouse space, is built and occupied.

An additional phase of the project, 27,750 square feet of warehouse space, was approved but has not yet been built.

Pedowitz is the current tenant, operating a transfer warehouse, machinery moving and rigging company at the property since July 2004. Pedowitz moves large pieces of machinery and equipment. The rigging operation involves breaking down manufacturing and other industrial operations, trucking the components to other locations and then reassembling it (or delivering the components as directed by the client), often using Pedowitz's own equipment to do the disassembling and reassembling.

More than occasionally, Pedowitz brings back its equipment and trucks to the property and stores them on-site. The equipment, machinery or components either remain on the truck or may be off-loaded and then re-loaded onto other vehicles. Due to transportation restrictions and ordinances governing bridges in New York City, Pedowitz may not move its oversized equipment and tractor trailers during normal business hours and must, instead, traverse at very early hours, as early as 4:30 a.m.

Originally, on March 8, 2005, Pedowitz applied for a zoning permit with the Township of Branchburg zoning officer to install an above-ground fuel tank on an existing concrete pad at the property for use in connection with its operation. On April 8, 2005, the township zoning officer denied the application, directing Pedowitz instead to pursue a minor site plan application before the Board which, by virtue of Branchburg Land Development Ordinance (LDO) § 4-3(c)(5), is responsible for approving all outdoor storage areas.*fn1

Consequently, on June 1, 2005, Pedowitz filed with the Board an application for minor site plan approval to install the above-ground fuel tank and for "truck-to-truck transferred materials that may be considered outdoor storage[,] if required." The application was deemed administratively complete on July 27, 2005 and no variances were identified.

During the five public hearings that ensued, it was established that Pedowitz's use was permitted in the I-2 industrial zone and that the proposed fuel tank conformed to ordinance requirements. The bulk of the testimony, however, was comprised of concerns aired by residential neighbors over noise. In fact, prior to the hearings, Branchburg's Health Officer recommended that Pedowitz "perform a noise investigation . . . to determine the impact of operations upon the residents[,]" and consequently the Board requested Pedowitz to provide acoustic studies from an independent noise expert.

The Board retained its own sound consultant, Ostegard Acoustical Associates (OAA) who, in a November 7, 2005 report, determined that Pedowitz's operation had exceeded nighttime sound limitations of 50 dBA*fn2 in violation of State (N.J.A.C. 7:29) and local (Code Section 7B-5) noise regulations. Although the OAA report recommended that noise mitigation measures be undertaken, it offered no suggestions.

In the absence of concrete recommendations, Pedowitz retained its own noise consultant, Potenta Environmental Consultants, LLC (Potenta). Following through on suggestions made in Potenta's December 29, 2005 report, Pedowitz implemented several mitigating measures, including: (1) moving the truck loading into the warehouse; (2) loading trucks during the prior evening, rather than the early morning; (3) installing mufflers on two trucks; (4) in the morning, shutting off forklift beepers during reverse movement; and (5) rescheduling garbage pickup after 7 a.m. According to Pedowitz, these mitigating efforts had eliminated most of the sound-generating activities between 5:00 a.m. and 7:00 a.m. except for the trucks starting up and leaving the site, and drivers had been instructed to limit idling and restrict their speed "so [the trucks] crawl out of the site as quietly as possible." Potenta also suggested additional measures to reduce noise levels even further than achieved by the operational changes already implemented, including extending or raising the height of the existing sound barrier in those areas where it was not effective.

Additional testing followed. The Branchburg Health Officer conducted acoustical surveys on April 12 and 24, 2006 and the "findings [were] similar to those of the November 7, 2005 [Ostegard] report." On May 16, 2006, the county health department conducted a sound survey and found no noise improvements. In the meantime, in April 2006, the property owner filed its own application before the Board to amend its prior site plan to provide additional warehousing space intended for Pedowitz to move truck start-ups and idling operations partially indoors so as to mitigate the noise problem. However, instead of hearing the property owner's application prior to final consideration of Pedowitz's because of the impact of the former on the latter, the Board proceeded to deny Pedowitz's application at the May 23, 2006 continuation hearing,*fn3 reasoning:

Pedowitz has bent over backwards in his attempts to rectify the situation. I do believe that the outside storage contributes to the [noise] problem, I don't think adding a new building is going to solve the problem. . . . I think [Pedowitz] run[s] a good business; I think it is in the wrong place. . . . It is not right for that place. It is in violation and [the] . . . . [m]otion to deny is approved.

In its resolution memorializing this decision, the Board expressly stated that Pedowitz's "use is not an appropriate one at this location."

Pedowitz filed a complaint in lieu of prerogative writs in the Law Division, claiming the Board's decision was arbitrary and unreasonable. Following a hearing, the court agreed, and granted Pedowitz site plan approval, finding that the application satisfied all the land ordinance standards, that the proposed fuel tank and outdoor storage were not contributing factors to the noise, and that the Board acted outside the scope of its authority by enforcing noise regulations and denying a conforming application for a minor site plan. Specifically, the judge reasoned:

[T]here's no dispute that plaintiff met all of the objective requirements under section 4-3(c) of the land development ordinance relating to outdoor storage.

There's also . . . no dispute on this record that plaintiff's use is permitted in the I-2 [industrial] zone.

It's evident from the extensive record here that the board denied plaintiff's application for a fuel tank and outdoor storage based upon what it contended were existing noise violations and the board's consistent determination that . . . plaintiff couldn't mitigate the noise problem . . . .

[T]he board is of the opinion that [plaintiff's] particular use is not an appropriate one at this location.

[T]he issue wasn't the fuel tank. . . .

[T]he board does not have the authority to enforce the noise ordinance by denying an otherwise compliant application. . . . The board certainly does not have authority to prohibit a permitted use.

The MLUL grants the power to zone to the municipal governing body through adoption of a zoning ordinance, 55D-62.

Exclusive rights to determine which uses are permitted within a zone is given to the governing body. The proper function of a planning board is to decide applications pursuant to standards and uses created in the zoning ordinance.

N.J.S.A. 55D-46(b) provides the planning board shall, if the proposed development complies with the ordinance in this act, grant preliminary site plan approval.

While . . . a board has wide discretion to assure compliance with the standards on the municipality site plan and land use ordinance, it was never intended to include the Legislative or quasi-judicial power to prohibit a permitted use . . . .

[T]he record amply established that plaintiff's use is permitted in the I-2 zone. The plaintiff's site plan application was conforming to the MLUL and the . . . LDO in all respects.

I reject [that] . . . the township's ordinance, [on] outdoor storage[,] . . . [in] paragraph 4-3(c)(5), . . . can be read so broadly as to allow the board to deny an otherwise completely conforming application on the basis of noise.

Clearly, the applicant and the plaintiff . . . [were] attempting to ameliorate the noise that the neighbors were complaining about . . . .

The board . . . in simply determining to deny [plaintiff's] application, in effect, it's denying a permitted use in the zone and simply exceeded its powers and authority and, thus . . . rendering its decision in this matter arbitrary and capricious.

And that's also underscored by the board's own statement in its resolution [on page 8, paragraph 4] . . . [that stated] --"quite frankly, the board is of the opinion that this particular use is not an appropriate one at this location" -- [and] that exceeded the board's power.

For these reasons, I determine that the plaintiff has carried its burden of proving that the board's actions here were arbitrary and capricious.

The Board appeals and we affirm substantially for the reasons stated in the Law Division's oral opinion of April 20, 2007. We add only the following comments.

The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, reserves to the governing body the power to enact zoning ordinances, N.J.S.A. 40:55D-62, including the exclusive power to determine the permitted uses of land in the various districts established by the ordinances. N.J.S.A. 40:55D-65.*fn4 Where a use is not permitted by the zoning ordinance, the statutory scheme permits applicants to seek "use" variances from the board of adjustment. N.J.S.A. 40:55D-70(d).

The role of the planning board, on the other hand, with respect to permitted commercial or industrial uses, is the grant or denial of site plan approval. N.J.S.A. 40:55D-37. "Although site plan review affords a planning board wide discretion to insure compliance with the objectives and requirements of the site plan ordinance, it 'was never intended to include the legislative or quasi-judicial power to prohibit a permitted use.'" PRB Enters., Inc. v. S. Brunswick Planning Bd., 105 N.J. 1, 7 (1987) (quoting Lionel's Appliance Ctr., Inc. v. Citta, 156 N.J. Super. 257, 264 (Law Div. 1978)).

On this score, N.J.S.A. 40:55D-46(a) provides that "[a]n ordinance requiring site plan review and approval shall require that the developer submit to the administrative officer a site plan and such other information as is reasonably necessary to make an informed decision as to whether the requirements necessary for preliminary site plan approval have been met." Then, pursuant to N.J.S.A. 40:55D-46(b), "[t]he planning board shall, if the proposed development complies with the ordinance and this act, grant preliminary site plan approval." Ibid.; see also Sartoga v. Borough of W. Paterson, 346 N.J. Super. 569, 582-83 (App. Div.), certif. denied, 172 N.J. 357 (2002) ("A planning board has no authority to deny site plan approval based on its view that a use permitted under the zoning ordinance . . . is inconsistent with principles of sound zoning.")

To be sure, N.J.S.A. 40:55D-49(a) "expressly authorizes planning boards to impose general terms, conditions, and requirements peculiar to site plan approval as related to public health and safety." W.L. Goodfellows & Co. of Turnersville, Inc. v. Washington Twp. Planning Bd., 345 N.J. Super. 109, 116 (App. Div. 2001) (holding that a stormwater management plan should be approved, conditioned on the acquisition of a drainage easement that comported with a drainage plan reviewed and accepted by Board professionals). However, as noted, this discretion is limited and "a planning board's role is somewhat 'circumscribed' in considering a site plan application[,]" id. at 116 (citing Shim v. Washington Twp. Planning Bd., 298 N.J. Super. 395, 411 (App. Div. 1997)), to that of assuring "compliance with the standards under the municipality's site plan and land use ordinance." Ibid.

In this case, LDO § 4.3(c) provides that outdoor storage in all non-residential uses shall be permitted if the enumerated requirements are satisfied. These outdoor storage restrictions are as follows:

1. Outdoor storage shall be restricted to materials and currently registered vehicles directly related to the principal permitted use of the premises.

2. Outdoor storage shall be restricted to not more than 40 percent of the rear yard.

3. No outdoor storage shall be permitted within 25 feet of any lot line nor closer than 20 feet to any building.

4. All outdoor storage permitted hereunder shall be screened by fencing . . . as required by the Planning Board so as not to be visible from any adjacent residential uses or any public street. The height of fencing . . . shall not exceed eight (8) feet except for vehicles which have a height of more than eight (8) feet.

5. All outdoor storage areas shall be approved by the Planning Board . . . as part of site plan approval.

6. All storage as herein permitted shall be maintained in an orderly manner at all times and shall not include any discarded or abandoned material. [LDO § 4.3(c)(1) to (c)(6).]

Here, it is undisputed that Pedowitz's use is permitted in the I-2 zone, and that its site plan application was fully conforming, requiring no variances or waivers, and satisfied all the pertinent ordinance standards. Yet, in rejecting the application outright, the Board nevertheless found that, due to excessive noise levels, the use was not appropriate for the property or neighborhood. It reached this conclusion by interpreting LDO § 4.3(c)(5) to empower the Board, under the guise of the general welfare, to deny a conforming site plan application for a permissible use which met all applicable standards based simply on its view of the desirability of the permitted use. In doing so, however, the Board substituted its own notion of an appropriate use for that of the governing body, relying exclusively upon a noise ordinance enforceable through other means. See Pizzo Mantin Group v. Twp. of Randolph, 137 N.J. 216, 229-30 (1994); PRB Enters., Inc., supra, 105 N.J. at 7.

Although the Board may consider public health and safety, such concerns are usually addressed, in the exercise of its limited discretion, by the imposition of terms, conditions and requirements on the site plan approval. N.J.S.A. 40:55D-49(a); W.L. Goodfellows & Co. of Turnersville, Inc., supra, 345 N.J. Super. at 116. But the outright denial of a conforming site plan application for a permitted use constitutes "drastic action," ibid., well beyond the Board's limited discretion. As the Court said in a somewhat related context, this limited "discretion is best exercised by a process in which planning boards affirmatively interact with developers when reviewing proposed subdivisions." Pizzo Mantin Group, supra, 137 N.J. at 233 (citation omitted).

In this regard, we do not question the Board's authority to seek means of mitigating the noise impact through conditions placed on Pedowitz's minor site plan approval. But of course that is not what the Board chose to do in this case. Instead it prohibited a permitted use based on excessive noise levels. Yet the exclusion of such a permitted use remains an incident of municipal zoning and legislative power, and the enforcement of the noise ordinance remains an incident of municipal police power in this instance vested in the township health department. By rejecting Pedowitz's minor site plan application, solely on this basis, the Board not only acted unreasonably, but usurped both municipal legislative and executive power.


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