On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9869-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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, ...