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Witherow v. Burlington Township Planning Board

July 29, 2010

DAVID O. WITHEROW, PLAINTIFF-APPELLANT,
v.
BURLINGTON TOWNSHIP PLANNING BOARD AND MIDMALL RESOURCES LIMITED PARTNERSHIP, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-276-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 30, 2009

Before Judges Rodríguez, Reisner and Chambers.

David O. Witherow, an objector residing in Burlington Township, challenges the decision of the Law Division upholding the Burlington Township Planning Board's (Board) grant of an application by Midmall Resources Limited Partnership (Midmall). Midmall sought approval for an expansion of an existing Wal-Mart store into a Wal-Mart Super Center. Midmall applied for: (a) preliminary and final site plan application for an approximately 66,172 square feet (SF) net building expansion to the existing Wal-Mart building; (b) as well as a "Bulk" or "C" variance, pursuant to the Municipal Land Use Law (MLUL),*fn1 N.J.S.A. 40:55D-70c(2), to permit impervious coverage of approximately 54.9 percent where 50 percent is permitted; (c) a design exception from the number and size of parking spaces; and (d) a design exception from the number and size of loading spaces.

The following testimony was presented to the Board. Christine Cofone, a licensed professional planner, testified to the one bulk variance required pursuant to the application. In her opinion, Midmall "qualifie[d] for Flexible C Variance." Such relief is appropriate when the applicant has a hardship. Further, the Board is still well "within its right to grant the variance relief, if the applicant can demonstrate both that[:] there is at least one purpose that the [MLUL] advanced by the grant of the application . . . the negative criteria is satisfied . . . and the impact on the surrounding properties" is not a substantial detriment.

As to the positive criteria, Cofone opined that Criteria A, G and J of the MLUL were satisfied by Midmall's application. See N.J.S.A. 40:55D-2. Cofone found that "the potential of the general welfare is advanced by this application in light of some of the master plan goals that [she] reviewed." Moreover, Cofone believed Criteria G would have a positive impact on Criteria J. Cofone testified that:

[w]hen we look at the fact that this is already a developed site and the applicant is looking to sort of intensify and concentrate those uses here on the existing developed site and take advantage of that existing infrastructure, I think you can absolutely find that [it] would be completely consistent with Smart Growth Principles as well as the feel of and planning development and redevelopment into the area that the applicant is in.

I think it is very important why you are considering this application, the only variance relief that is required by this application is for the maximum impervious coverage. So there is a presumption of validity that all of the other aspects of the application are consistent with the zone plan.

With regard to the negative criteria, Cofone testified:

[t]he first part I have to address in the negative criteria is the impact on the zone plan. The zone allows for 50 percent. Again, we are at 54.9. I believe that clearly this application, although not conforming, takes the site much closer in conformance with the road plan.

The next part of that is the impact on the surrounding properties and the public good. Again, as I said in my opening statement, we talked about the testimony, when you evaluate the negative criteria, the Land Use Law doesn't say that the Board must find that there is no detriment resulting. The Board has to find there is no substantial detriment. I can't think of any detriment that results from the minimal excess coverage that is resulting from this application that would impact the surrounding properties.

The uses as proposed are all completely consistent with the zoning plan and the uses that surround it. The coverage is minimal. A variance was previously granted for the coverage on the front portions of the site and the applicant is significantly reducing that. So to that end, and the fact that the uses are substantially consistent, or completely consistent with the zone plan and the surrounding uses, in my opinion there will be no deleterious impact on the surrounding properties or to the public good as a result of this impervious covered area.

Cofone also testified concerning the loss of fifty-seven parking spaces. There was a basis for granting a flexible "C" variance because:

I believe that it would advance certainly preventing degradation of the environment and preventing urban sprawl and also promoting a desirable and visual environment by allowing for additional green space on the site . . . . [W]e are clearly meeting the intent of the ordinance in as far as parking and both landscaping.

[T]he deficiency in parking will have absolutely no impact on any of the surrounding properties in a negative way in my opinion. So clearly the positive criteria and negative criteria would be satisfied if this were in fact a variance.

Board Planner Joseph Augustyn agreed with Cofone's assessment that the granting of the lot coverage variance would not have a significant negative impact. However, Augustyn recommended that further action could be taken to reduce lot coverage by reducing the number of parking spaces because "too many parking spaces" remained.

Grayson Murray, a licensed professional engineer, testified that as a result of miscalculation, the lot coverage was misstated and was actually 56.1 percent as opposed to 54.9 percent. Murray testified that Midmall requested a design exception with regard to twelve-foot-wide loading spaces versus the ordinance requirement of fifteen feet. Twelve feet satisfied the operational need and was also consistent with standard engineering design for loading docks utilizing tractor trailers. Murray further testified in support of the request for 9 and 9.5-foot wide parking spaces, that 9 feet was "still in accordance with general engineering design and is more than adequate for passenger vehicles."

Michael Moonan, a professional engineer, noted that two lots on the project area (Lots 3 and 4) were landlocked and constrained by wetlands. Prior to any additions, there were 1,842 existing parking spaces, which is 5.4 spaces per 1,000 SF of gross floor area. Midmall proposed 1,988 spaces pursuant to the addition, which is 5.3 per 1,000 SF and in satisfaction of the Township's parking ordinance. The Board engineer, Robert Schreibel, recommended only 5 spaces per 1,000 SF, which would total 1,874 spaces.

Moonan also explained that the Wal-Mart trucks "will enter the site via the truck route access point on the southeast portion of the site . . . behind the Acme building, along the southerly property line, and continue north behind the Wal-Mart building, and there will be a total of six loading docks." John Mims, a Wal-Mart market manager, testified regarding Wal-Mart loading facilities. Wal-Mart currently received one to two Wal-Mart tractor-trailer truck deliveries a day. At the new facility, it would increase to two or three a day. The Wal-Mart trucks make deliveries between 10:00 p.m. and 6:00 a.m. Seven to ten panel truck deliveries a day were to be expected from vendors at the new facility. These trucks complete deliveries by 10:00 a.m. With respect to the holiday season, Mims testified that one additional Wal-Mart truck would make a delivery each day and the number of panel truck deliveries would remain the same. No parking spaces would be lost in this process.

The updated plan added another lane entering "westerly into the site along the main access drive . . . just beyond the main intersection." Moonan confirmed that there were currently three loading docks and the updated plans included the addition of three loading docks in response to the grocery area. He further testified that "only six loading docks maximum would be needed, that . . . there will be no tractor trailers queuing, waiting to get into a spot because of the way that Wal-Mart times their deliveries."

Witherow presented Alexander Litwornia, a professional planner and engineer, who was recognized by the Board as an expert planner and traffic engineer. He testified that he saw no benefit in providing an additional supermarket when one already existed in the complex. Litwornia recommended ten-foot parking spaces because people bring carts between the vehicles, "[a]nd if you don't have additional room, the vehicles [get] scraped and scratched up and people don't like it." Further, the plans did not comply with the Americans with Disability Act (ADA), 42 U.S.C.A. § 12101 to -12213. There was no waiver from these standards because of the State and federal government mandates.

Litwornia submitted a report, concluding that: (a) the site has inadequate parking due to the amount and size of the spaces, and no parking study was completed to justify the parking variance; (b) trucks presently park and are stored in the fire zone, which will become worse if the density of the development is allowed to increase; and (c) a parking variance was requested but no ...


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