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

May 2, 2008

JACK PEDOWITZ ENTERPRISES, INC., D/B/A PEDOWITZ MACHINERY MOVERS, PLAINTIFF-RESPONDENT,
v.
TOWNSHIP OF BRANCHBURG PLANNING BOARD, DEFENDANT-APPELLANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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