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PPF Industrial - Route 130/ Exit 8A, LLC v. Planning Board of the Township of South Brunswick


August 3, 2010


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9869-07.

Per curiam.


Submitted March 15, 2010

Before Judges Rodríguez, Yannotti and Chambers.

The Planning Board of the Township of South Brunswick (Board) appeals from the Law Division's December 23, 2008 final judgment rejecting the Board's denial of a bulk variance. We affirm, concurring with the judge that the Board's action is arbitrary, capricious, and unreasonable.

Respondent PPF Industrial - Route 130/Exit 8A (PPF) filed an application with the Board, seeking preliminary and final site plan approval of a 744,000 square foot warehouse on its property in South Brunswick. The property is located within an "I-3" industrial zone at the corner of Friendship Road and Route 130. Because it is situated on a "corner lot" with "two front yards," compliance with South Brunswick Ordinance § 62-1434 is difficult. The ordinance provides:

Offstreet loading in the I-3 general industrial district shall take place at the side or rear of the building or structure. Where offstreet loading is located at the side of the building or structure, a buffer strip, consisting of a decorative pierced concrete block or massed conifers, which would properly shield the loading area from the street, shall be created. The buffer shall be a minimum of five feet in height.

PPF sought a variance so that a section of its loading docks could be placed on the east side of its property. Locating the dock on the east side would cause less impact on the neighboring Four Seasons adult community.

The Board held a public hearing on the application. Michael McKenna, a professional engineer, testified that a "significant berm" was to be placed parallel to Route 130 to make the loading dock less visible. Another berm was to be placed on the front of Friendship Road to screen the parking lot.

Paul Grygiel, a licensed professional planner, testified that the proposed warehouse is a permitted use as of right. According to Grygiel, the site is encumbered by a variety of environmental protections and a large percentage is not developable. This forces development toward the eastern and southern portions of the property. The plans call for a 200-foot buffer zone to the north side and more than 400 feet between the proposed development and the Four Seasons residence. (1T130.) According to Grygiel, this complies with South Brunswick Ordinance § 62-1846, which provides:

In the . . . I-3 District[], land within 200 feet of the boundary of a residential or mixed-use district shall be known as a "buffer area," which shall include a berm a minimum of ten feet in height plus landscaping sufficient to screen all nonresidential activities. The berm should be undulating and its geometric form (e.g., sloped sides) should be varied to provide for a less rigid and more natural appearance . . . .

. . . The buffer areas shall be comprised of existing vegetation and/or shall be landscaped in such a manner so as to provide an effective visual screen between uses.

A traffic engineer, Karl A. Pehnke, testified about a traffic study he conducted in February 2007. According to Pehnke, the proposed site would attract around sixty vehicles during peak hours, including approximately fourteen larger trucks. He also testified that a double driveway design would reduce the site circulation to the north of the building, next to the Four Seasons. Pehnke said PPF intended to place "right turn only" signs on the property so that trucks would be routed onto Route 130 versus Friendship Road, which was one of the Board's concerns.

At a subsequent public hearing, numerous residents from the Four Seasons community testified. One resident said the goal was to "stop the projects" and "to oppose the PPF plan to build a mega-warehouse adjacent to Four Seasons and near the intersection of Friendship Road and Route 130." The majority of the public comments related to air quality, traffic, and noise concerns, and the general focus was on the proposal to build a warehouse and not the actual variance itself. The Chairman repeatedly pointed out that the Board had no authority to deny the application based on environmental or traffic issues.

An additional hearing was held to respond to the public's concerns. McKenna stated that PPF would reduce the building by 15,000 square foot, which would allow an extra twenty-five feet of landscaping and buffering. PPF also planned to install a solid, eight-foot tall PVC fence to shield Four Seasons from headlights from vehicles using the warehouse docks or parking lots. Rows of evergreen trees would be planted in front of the fence to thicken the deciduous nature of the pre-existing forest. Additionally, a noise consultant, Brooke Crossan, P.E., Ph.D., testified that the anticipated noise levels from the warehouse would comply with State and Township codes.

At the end of the public hearing, the Board unanimously voted to deny PPF's application. Most of the Board members cited the traffic, noise, and environmental issues as the reason for denying the application. None directly addressed the variance itself. The Board adopted a resolution denying the PPF application. The resolution states:

The proposed use does not promote a desirable visual environment and has limited benefit to the township as a whole. . . . The benefits from the proposed use are minimal. The detriments in failing to comply with township ordinance and creating a situation that will not be visually desirable is substantial. As a result, the detriments substantially outweighs the benefits and the relief requested for the variance . . . cannot be granted.

. . . Members from the public testified that the applicants need for variance relief is not due to any constraints on the property. Rather, the need for variance arises from the applicant's desire to build as large of a warehouse as possible on the site. . . . The applicant failed to establish that the variance relief requested is due to any unique size, shape or topography of the property or any unique or special conditions located on the property.

. . . Although the applicant provides a two hundred (200') foot buffer, the area does not consistently provide a ten (10') foot high berm. Furthermore, the Board finds that due to the tree species located in the buffer area, this area will screen the non-residential activities only during the time of year that the trees are in full bloom. . . . As a result the non-residential activities will not be screened by the buffer area for a meaningful portion of the year.

. . . The Board further determines that . . . the proposed use will overwhelm the roadways in this area. . . . [D]ue to Friendship Road actually being a two (2) lane "country" road [rather] than a road being able to accommodate high traffic volume, [the Board finds that] Friendship Road cannot safely accommodate the volume of tractor trailers that are to be anticipated to enter and exit the site.

PPF filed an Action in Lieu Prerogative Writs. Following a trial, Judge James P. Hurley reversed the Board in a December 23, 2008 oral decision. He found that "the evidence presented by [PPF] was overwhelmingly in its favor." The judge held that PPF was entitled to both a c(1) hardship variance, pursuant to N.J.S.A. 40:55D-70(c)(1), and a flexible c(2) variance, pursuant to N.J.S.A. 40:55D-70(c)(2). The judge found:

[PPF] has demonstrated an exception[al] sensitivity to the neighboring residential use, while keeping in mind its right to develop the property in accordance with the township's land use regulations.

If [PPF] had oriented its loading base to the north of the property facing the residence no variance would be required, and the [B]oard would be left with little to no discretion.

[PPF] elected to face the loading base towards Route 130, a heavily traveled road, rather than towards the residence, but buffered it with a fence, and berm, thereby minimizing the visual impact. . . .

There is no detriment to the zone plan, because the use is permitted, but for those considerations of . . . neighboring residential use, a C variance would not have been needed.

The Court is limited in its review. It cannot substitute its findings to that of the [B]oard, but the Court is required, unbalanced, to review the decision of the [B]oard, and determine if its findings are consistent with the law. Here it is not.

The [B]oard gave great concern to the objectors who appeared, as it should, but it can be seen that those concerns centered around the existence of an industrial zone in proximity to its residential zone.

That is not the concern of the [B]oard. It is a concern of the governing body. The [B]oard must concentrate on how to mitigate that impact by imposing reasonable conditions. Instead, the [B]oard denied the application for reasons unsupported by the record. . . .

The [B]oard's denial based on traffic safety is unsupported in the record. The property is zoned industrial. [PPF]'s use is permitted.

The judge remanded the matter, directing the Board to adopt a resolution granting the preliminary and final site plan approval, the variance to allow loading in the front yard, and two design waivers subject to conditions stated on the motion.

The Board appeals contending that "judicial deference should be provided to a planning board's decision that denies a requested variance." The Board argues that the trial court "made an error in substituting its judgment for the judgment of the [B]oard." We disagree.

It is a well-settled principle that "a decision of a zoning board may be set aside only when it is 'arbitrary, capricious or unreasonable.'" Cell S. of N.J., Inc. v. Zoning Bd. of Adj., 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)). "[P]ublic bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion." Jock v. Zoning Bd. of Adj., 184 N.J. 562, 597 (2005). Therefore, "[t]he proper scope of judicial review is not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record." Ibid.

As a general rule, greater deference is given to a denial of a variance than to a grant of a variance. Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 208 (App. Div. 1999). Where a planning board has denied a variance, the applicant must prove that the evidence before the board was "overwhelmingly in favor of the applicant." Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adj., 361 N.J. Super. 22, 38 (App. Div. 2003). Accordingly, "we will not disturb a planning board's decision unless we find a clear abuse of discretion." Cell S., supra, 172 N.J. at 82 (citing Medical Realty Assocs. v. Bd. of Adj., 228 N.J. Super. 226, 233 (App. Div. 1988)).

The New Jersey Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -112, authorizes local zoning and planning boards to grant variances pursuant to N.J.S.A. 40:55D-70. The part pertinent to this appeal is N.J.S.A. 40:55D-70(c), which provides two basic categories of variances. N.J.S.A. 40:55D-70(c)(1) is known as the "c(1) hardship variance" and N.J.S.A. 40:55D-70(c)(2) is known as the "flexible c(2) variance." Obtaining a variance pursuant to either subsection requires the applicant to prove: "(1) that they will suffer exceptional or undue hardship if the variance is not granted -- the so-called positive criteria; and (2) that the variance will not result in a substantial detriment to the public good or the zoning plan --the so-called negative criteria." Nash v. Bd. of Adj., 96 N.J. 97, 102 (1984).

Pursuant to MLUL, a planning board may grant a hardship variance where:

a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation . . . would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property . . . . [N.J.S.A. 40:55D-70(c)(1).]

"Undue hardship refers solely to the particular physical condition of the property, not personal hardship to its owner, financial or otherwise." Jock, supra, 184 N.J. at 590. The hardship standard does not require an applicant to prove that the property would be "zoned into inutility." Lang v. Zoning Bd. of Adj., 160 N.J. 41, 54 (1999). Instead, the applicant may demonstrate that the property's unique characteristics "inhibit the extent to which the property can be used." Id. at 55 (citing Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 562 (1988)) (emphasis in original). The unique property condition must constitute the primary reason why the property does not conform to the zoning ordinance. Id. at 56.

Here, the Board argues the positive criteria are not met because "[t]here is nothing in the record to suggest that the variance relief is a result of the unique shape, size[,] or topography of the site." Rather, the Board maintains the need for the variance is "driven more by [the] desire to have the largest sized warehouse permitted in the zone." We are not persuaded by this argument.

South Brunswick Ordinance § 62-1434 requires loading areas to be located in the rear or side of a property. PPF owns property that is located on a "side lot" with "two front yards." Forty percent of the property is comprised of protected wetlands, making a large portion of the land off limits to building. Further, Grygiel testified that:

[W]ith two road frontages, you're really forced to put the loading to the west and the north if you comply with the ordinance, and I think that would not be the preferable arrangement, given the park zone and the residential to the north. So whether it's a smaller building or for that matter a larger building, I would still have the same conclusion about where the loading areas are located.

Thus, the property itself caused the need for the variance and not the size of the structure. See Lang, supra, 160 N.J. at 56 ("[A] board of adjustment or a reviewing court should consider whether the structure proposed is so unusually large that its size, rather than the unique condition of the property, causes the need for a variance."). The "positive criteria" therefore have been established because without undue hardship, PPF could not comply with the ordinance due to the property's "exceptional topographic condition or physical features." N.J.S.A. 40:55D-70(c)(1).

As to the negative criteria, the judge correctly found that "there is no detriment to the zone plan, because the use is permitted, but for those considerations of the neighbor . . . a C variance would not have been needed." The benefits of the deviation substantially outweigh any detriment to the public, as surely the residents of the Four Seasons do not want the increased noise and light so close to their property, as PPF would be lawfully allowed to do without a variance.

Further, the feared negative impacts (i.e. increased traffic, air quality, and visual desirability) are inherent to the building of the warehouse, not to the precise location of the loading docks. It is clear from the transcripts of the public hearings that the issue being debated was not whether the actual variance should be granted or where the loading docks should be located, but rather whether a warehouse should be permitted on the lot. One resident said the goal was to "stop the projects" and "to oppose the PPF plan to build a mega-warehouse adjacent to Four Seasons and near the intersection of Friendship Road and Route 130." When giving the explanation for their vote, most of the Board members cited concerns over traffic and environmental issues. None specifically referred to the variance or the location of the docks.

The Board argues that the site proposal does not meet the buffer and berm requirements required by South Brunswick Ordinance § 62-1846. However, based on the expert testimony at the public hearings, it appears that no variance is needed. Grygiel testified that the site plans call for a 200-foot buffer zone on the north and more than 400 feet between the proposed development and the Four Seasons residence. The Board's resolution itself acknowledges that the 200-foot buffer requirement is met. Grygiel testified that the revised site plans addressed the public's concerns by adding PVC fence, evergreen landscaping, and reducing the warehouse size by 15,000 square feet to accommodate a larger buffer zone. The Board found that the berm requirement was not met because the public testified that the trees would not provide full screening in the winter months. We of course note that the members of the public are not experts. Their comments cannot be elevated to the status of evidence. PPF's expert testified that the berms, extra landscaping, fence, and landscaping meet this requirement and properly screen nonresidential activities, thus the site complies with the ordinance.

As the judge found, and PPF argues, the Board's denial based on off-site traffic safety and congestion issues is unsupported by the record and inappropriate. The Board's resolution states, "The public provided testimony that Friendship Road is a two (2) lane quiet 'country' road." The members of the public stated that "even though the applicant will be making improvements to Friendship Road, that . . . will still not be sufficient and adequate for safe and adequate access to and from the site." Furthermore, according to the public, "the proposed use will promote traffic . . . and Friendship Road is not designed to accommodate such traffic." We again note that members of the public are not experts in traffic patterns.

PPF's traffic expert testified that there would be no significant increase in traffic on the roads. The traffic volume itself is attributed to the fact that a warehouse, a permitted use, would be placed on the property and not due to the location of the loading dock. As far as traffic safety is concerned, the traffic expert testified that the ingress and egress were safe and PPF agreed to a "right turn only" traffic flow out of the parking lot.

Although the expert addressed the traffic concerns and PPF agreed to pay for road improvements in the area, the Board had no authority to consider the off-tract traffic congestion or safety not created by the application itself. See Dunkin' Donuts of New Jersey v. Twp. of N. Brunswick Planning Bd., 193 N.J. Super. 513 (App. Div. 1984); William M. Cox, New Jersey Zoning and Land Use, § 15-9 at 390 (2010) ("[A] planning board has no authority to deny a site plan because of its anticipated detrimental impact on off-tract conditions. Planning for traffic patterns is an exercise of the zoning power vested in the government body."). Allowing a planning board to deny an application based on off-tract traffic issues would amount to erroneously giving the board "legislative or quasi-judicial power to prohibit a permitted use." Lionel's Appliance Ctr., Inc. v. Citta, 156 N.J. Super. 257, 264 (Law Div. 1978).

We affirm because the Board was "arbitrary" in its decision, in that it appears the decision was made in response to a public outcry against the permitted use and not the variance itself. The Board also abused its discretion by making its decision based almost entirely upon the off-site traffic consequences of the permitted use. Therefore, neither the trial court, nor this Court owes the Board deference. In short, we agree with Judge Hurley that PPF established both the negative and positive requirements for a variance pursuant to N.J.S.A. 40:55D-70(c)(1) or (2).



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