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Getty Petroleum Marketing, Inc. v. City of Bayonne Zoning Board of Adjustment

July 28, 2008

GETTY PETROLEUM MARKETING, INC., A CORPORATION OF THE STATE OF MARYLAND, PLAINTIFF-APPELLANT,
v.
CITY OF BAYONNE ZONING BOARD OF ADJUSTMENT AND QUICKCHEK FOOD STORES, INC., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, No. L-5433-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 30, 2008

Before Judges Wefing, Parker and Koblitz.

Plaintiff Getty Petroleum Marketing, Inc. ("Getty") filed an action in lieu of prerogative writs challenging a resolution of defendant Bayonne Zoning Board of Adjustment ("Board") granting use variances to defendant QuickChek Food Stores, Inc. ("QuickChek"). The trial court entered judgment for defendants, and plaintiff has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The property in question is comprised of two adjoining lots which, together, constitute an L-shaped parcel nearly one acre in size. It is located between Broadway and Avenue E in Bayonne and has frontage both on East 52nd Street and East 53rd Street. The lot that fronts on East 53rd Street is located in Bayonne's C-2 Community/Commercial zone and the lot that fronts on East 52nd Street is located in the city's R-2 Detached/Attached Residential zone.

On the 53rd Street side there is a furniture store warehouse, a shopping center, a bus depot, an auto repair business and other commercial properties. On the 52nd Street side the block is comprised of two-family homes. The entire parcel is currently occupied by a trailer park, which is not a permitted use in either zone. Vehicle access in and out of the trailer park is by way of a driveway on the 52nd Street side.

On the 53rd Street side, the parcel is approximately five hundred feet from Interchange 14A of the New Jersey Turnpike Extension. 53rd Street is heavily traveled in this area because of its proximity to the Turnpike.

QuickChek proposed to purchase these two lots and convert them from the present trailer park to a gasoline station combined with a five thousand square foot convenience store. The site would be open for business seven days a week, twenty-four hours a day. The convenience store was proposed to be placed primarily on the lot located in the R-2 zone and the gasoline station would be placed on the lot located in the C-2 zone. The station would have ten fueling pumps. Although it would sell diesel fuel, it would do so only for automobiles. Trucks would not be permitted to refuel at the station.

A gasoline station is not a permitted use in either zone. Thus QuickChek required use variances for both the convenience store and the gasoline station. It did not require any dimensional variances.

QuickChek presented a traffic expert who noted the heavy traffic volume on 53rd Street during the morning and afternoon rush hours. He expressed the opinion that the presence of the QuickChek facility would only produce a two to five percent increase in traffic volume. He also noted that because the facility would not have an entrance on 52nd Street, there would be a reduction in traffic on that street and an increase in available parking for the residents of the street. An objector presented a traffic expert who disputed the opinions of QuickChek expert.

QuickChek also presented a planning expert who expressed the opinion that the site was particularly well-suited to accommodate the proposed uses. He noted both the volume of automobile traffic and the proximity to the Turnpike as particular reasons why a gasoline station was appropriate at the site. He noted that the convenience store was not intended to accommodate full-scale shopping but to serve as a convenience for a motorist who wished to get a cup of coffee or snack or small items such as a container of milk. He also noted that because of the proximity to the Turnpike, 53rd Street did not function as a local, neighborhood street but rather as a "collector road" for traffic entering and exiting the Turnpike.

In addition, he noted that at the present time, the trailer park fronted directly upon 52nd Street, with no set-back or buffering. The convenience store was to be set back approximately twenty feet from 52nd Street and would have grass, bushes and other landscaping to serve as a buffer. It would thus, in his opinion, be less intrusive into the residential zone than the existing trailer park. He also noted that the existing uses on 53rd Street, such as the large furniture warehouse, made residential development of the 52nd Street lot unlikely.

Plaintiff presented an expert who disagreed. According to Getty's expert, the proposed use was inappropriate because it would change the 52nd Street block from primarily residential to two-thirds commercial. He also considered the proposed use a more intense use than the existing trailer ...


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