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Village Supermarkets, Inc. v. Planning Board of the Township of Union

August 6, 2010

VILLAGE SUPERMARKETS, INC., PLAINTIFF-APPELLANT,
v.
PLANNING BOARD OF THE TOWNSHIP OF UNION, NEW JERSEY AND ALDI, INC. (PENNSYLVANIA), DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3398-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 9, 2010

Before Judges Wefing, Grall and LeWinn.

Plaintiff Village Supermarkets, Inc. (Village), appeals from the July 15, 2009 order of the Law Division entering judgment in favor of defendants, Planning Board of the Township of Union (Board) and Aldi, Inc. (Pennsylvania) (Aldi), upholding the decision of the Board granting certain variance relief to Aldi for the construction of a supermarket in Union. Village, a corporation headquartered in Union, operates a ShopRite supermarket located approximately one mile from the property on which Aldi proposes to construct its supermarket. Aldi's property is 1.662 acres in dimension and is located in Union's "BB Business Retail District[,]" which is zoned for commercial uses including food stores; a 7500-square-foot structure is currently located on the property.

On November 1, 2007, Aldi filed its application for final site plan approval and variances under N.J.S.A. 40:55D-70(c)(2). Specifically, Aldi sought variances from municipal ordinances that (1) prohibited parking in the front of the lot, (2) required that the building be of colonial design, and (3) required the signage also to be of colonial design.*fn1

Aldi presented four witnesses before the Board: (1) James P. Curran, Aldi's Director of Real Estate; (2) Robert P. Switala, a civil engineer; (3) Gary W. Dean, a traffic engineer; and (4) Francis J. Banisch, a licensed professional planner. Village presented one witness, Hal Simoff, a traffic expert.

Curran described the property as "surrounded by deteriorating asphalt, with approximately two entrances directly in and out off of Commerce Avenue." He estimated that once the store was operative, approximately seven to ten deliveries per week would be made in trucks with fifty-three-foot trailers; deliveries would be made "any time from [six] a.m. to [seven] p.m. . . . depend[ing] upon traffic and the operations of the store[,]" and would take approximately one hour to complete.

Switala testified that a variance to allow parking in front of the building, rather than behind, was sought because it was "a pretty common design element to have parking for a retail use in a front yard[,]" as evidenced by the parking at a CVS pharmacy next door. Switala also explained that "[w]ith retail, the intent is most people like to park close to the building if they can, and that, typically, would mean you have parking in the front yard."

Regarding the variance from colonial design, Switala noted that "throughout the Township . . . other retail uses . . . are either per . . . the company prototype, or just not colonial in nature at all." Likewise with respect to the sign variance, Switala pointed out that the CVS pharmacy immediately to the left of the property and the Commerce Bank on its immediate right do not have colonial signage.

Switala also engaged in calculations regarding truck deliveries that led him to conclude there would be sufficient room for the tractor-trailers making deliveries to maneuver in the parking lot and reach the loading dock in the rear of the building, stating that "[i]t is not anything that is going to create a serious hardship for the infrequent amount of time that this is going to happen." Switala "believe[d] the site itself has been designed in a manner that safely moves trucks in and out of the site in what . . . is probably the most efficient manner that [the] site could be laid out." Switala testified that any difficulties the tractor-trailers might have exiting the premises were problems that other businesses in the area also faced.

In response to concerns raised by the Union Township Board of Education concerning deliveries occurring at the start and conclusion of the school day, Aldi agreed that deliveries would not be made between "7:30 a.m. and 9:15 a.m., and between 2:00 p.m. and 4:00 p.m." The Board of Education thereupon withdrew its objections to Aldi's project.

Dean testified that "[i]n terms of general traffic parameters, this store is now actually smaller than the CVS immediately adjacent to the south." Dean further testified that any problems associated with trucks exiting the site onto the street would be marginal. With respect to the ability of delivery trucks to move on and off the premises, Dean stated that "the design as proposed will be more than adequate to meet the needs of the site and for Aldi."

Regarding the variance for allowing parking in front of the store, Dean testified that Aldi's proposed design "mirrors every building along Commerce Avenue. Commerce Bank and CVS, . . . they all have an identical parking arrangement." Furthermore, Dean testified, having parking in the front allows customers to park "closest to the building['s] fa├žade so that ...


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