May 20, 2009
APCO PETROLEUM CORP., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
THE TOWNSHIP OF MAPLE SHADE PLANNING BOARD, DEFENDANT-RESPONDENT, AND GURBIR ENTERPRISES, L.L.C., DEFENDANT-RESPONDENT/ CROSS-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1929-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 6, 2009
Before Judges Cuff, Fisher and C.L. Miniman.
In this appeal, we address the arguments of plaintiff APCO Petroleum Corporation (plaintiff) that the trial judge erred in affirming site plan approval for defendant Gurbir Enterprises, L.L.C. (Gurbir) to construct a gas station on a lot fronting Highway 73 in Maple Shade. We find no merit in plaintiff's arguments and affirm without reaching Gurbir's cross-appeal in which it is argued that plaintiff lacked standing to challenge the planning board's actions.
The record reveals that Gurbir's property was slightly larger than 1.5 acres. In 2002, Gurbir sought approval for the construction of a two-story, 4800 square-foot convenience store and office that would also include gas and diesel service stations for all types of vehicles, including tractor trailers. In addition, Gurbir sought permission to build a fourteen-by-seventeen-foot sound barrier in the rear of the property. The proposal also required numerous variances.
Plaintiff, the owner of a nearby gas station, objected to the 2002 application, prompting a series of seven board meetings. During these extensive proceedings, plaintiff argued, among other things, that the zoning map demonstrated Gurbir's property was a "split lot," i.e., part of the lot was zoned for commercial uses and the remainder for residential uses. As a result, plaintiff argued that, absent a variance, construction of a gas station and convenience store was impermissible on the residentially zoned portion of the property. Based upon its interpretation of local zoning ordinances regarding properties along Route 73, the board determined that the lot was not "split" but instead fell entirely within the business district zone. Following that determination, plaintiff eschewed the board's invitation that plaintiff seek review of its decision. Instead, plaintiff presented additional objections, all of which were rejected. Despite its rejection of plaintiff's arguments, the board denied the 2002 application because Gurbir failed to establish that it was entitled to the requested variances. Gurbir took no further action on its 2002 application.
Instead, near the end of 2003, Gurbir submitted a new application, which was revised and resubmitted in early 2004. This new application proposed the construction of a one-story, 1600 square-foot convenience store; the sound barrier proposed in the earlier application was eliminated, as was the indication in the 2002 application that service would be provided for tractor trailers. The 2004 application also indicated that fuel deliveries would be restricted to daylight hours. Gurbir did not publish or serve notice of the hearing because no variances were requested, only site plan approval.
At the request of the board, however, public notice of a second board hearing was given. At the second hearing, the board considered all the remaining issues and approved Gurbir's preliminary and final site plan. A resolution memorializing that determination was adopted.
Plaintiff commenced this action in lieu of prerogative writs, arguing among other things that: (1) the applications were virtually identical and that application of res judicata principles required the denial of the 2004 application because of the denial of the 2002 application; (2) the property is a "split-lot," requiring a variance for its development; (3) a variance was required because multiple structures and uses were proposed; (4) Gurbir failed to provide proper notice of the 2004 application; (5) the 2004 application required bulk variances never raised or considered by the board; (6) the 2004 application failed to adequately explain the proposed ingress and egress onto Route 73 and misinformed or misled the board regarding the approval of the Department of Transportation; and (7) the board failed to memorialize all the conditions of its approval in the resolution.
Judge John A. Sweeney rejected all of plaintiff's arguments for the reasons thoroughly explained in his thoughtful written opinion. Not only was the judge's decision firmly based upon accepted legal principles applicable to the various arguments, but the decision also gave appropriate deference to the planning board's determinations, which the judge was required to affirm so long as the board did not act arbitrarily, capriciously or unreasonably. See Cell S. of N.J., Inc. v. Zoning Bd. of Adjust., W. Windsor Twp., 172 N.J. 75, 81-82 (2002).
We find no merit in plaintiff's arguments, which have been reprised in its appeal, and we affirm substantially for the reasons set forth in Judge Sweeney's opinion.
Affirmed; the cross-appeal is dismissed as moot.
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