NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1563-20
RARITAN PARTNERS, LLC,
Plaintiff-Appellant,
v.
RARITAN TOWNSHIP
BOARD OF ADJUSTMENT,1
Defendant-Respondent.
_________________________
Argued January 18, 2022 – Decided February 7, 2022
Before Judges Vernoia and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Hunterdon County, Docket No. L-0021-20.
Timothy M. Prime argued the cause for appellant
(Prime & Tuvel, LLC, attorneys; Timothy M. Prime, on
the briefs).
Jonathan E. Drill argued the cause for respondent
(Stickel, Koenig, Sullivan & Drill, LLC, attorneys;
Jonathan E. Drill, of counsel and on the brief; Kathryn
J. Razin, on the brief).
1
Improperly pled as Township of Raritan Zoning Board/Board of Adjustment.
PER CURIAM
In this action in lieu of prerogative writs matter, plaintiff Raritan Partners,
LLC appeals from the January 14, 2021 Law Division order dismissing its
complaint with prejudice and affirming defendant Raritan Township Zoning
Board of Adjustment's (Board) denial of its application for four variances and
site plan approval to construct a Wawa convenience store with a gasoline fueling
station. For the following reasons, we affirm.
I.
The following facts are derived from the record. Plaintiff was the contract
purchaser of a tract of property located in the Township of Raritan's (Township)
B-2 zone, a commercial zone, intended "to define and provide controls for the
major shopping and business areas of the Township, serving the needs of both
Township residents and the regional population, and transient highway users."
The site consists of two-and-a-half acres having two lots, which are triangular
in shape, with one side facing a municipal street, New Castle Way, and the other
side facing State Highway 31 (Route 31). The property contained a two-story
commercial building, a parking lot, a residential dwelling, a channel, and a
"barn."
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In 2018, plaintiff filed an initial application with the Board for a
conditional use variance and preliminary and final site plan approval to demolish
the improvements and develop the site with: (1) a 5,585 square foot Wawa store;
(2) a Wawa fueling station with six gasoline pumps, twelve filling dispensers,
three employee kiosks, with a weather protection canopy over the fueling station
and kiosks; (3) three underground gasoline storage tanks; (4) a parking lot; (5)
enclosures for trash and recycling receptacles; (6) stormwater facilities for
stormwater management; and (7) other related site improvements.
Ordinance section 296-114B (formerly known as 16.26B.020.A) provided
a list of principal permitted uses. 2 In pertinent part, subsection B(1) of the
ordinance listed "[r]etail and service uses, excluding those uses listed under
Subsection D." Ordinance section 296-114D (formerly known as 16.26B.040.E)
provided a list of conditional uses, including "[g]asoline filling stations and
public and repair garages." The proposed Wawa convenience store was a
principal permitted retail use in the B-2 zone pursuant to ordinance section 296-
114B(1), and the Wawa fueling station was a conditional use in the B-2 zone
pursuant to ordinance section 296-114D(5).
2
On November 18, 2020, the Township re-codified its code. This opinion
references the prior code because the record before us indicates the Board's
resolution referenced the prior code.
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3
Plaintiff's initial application also sought two variances, specifically: (1) a
"c(2) [n]on [u]se[-][v]ariance (flexible; benefits vs. detriment)"; and (2) "d(3)
[d]eviation from a specification or standard pursuant to Section 54 of P.L. 1975,
c. 291 (C.40:55D-67) pertaining solely to a conditional use."
At the hearing, plaintiff revised its application based on comments from
the Board and, in its final application, plaintiff sought the following: (1) one
d(1) variance from ordinance 16.26B.020.A to construct the Wawa convenience
store, a permitted use, and a gas station, a conditional use pursuant to
16.26B.040.E (plaintiff "applied for this relief without prejudice to its position
that this relief is not required and reserved its rights on this issue"); (2) five d(3)
variances to allow the construction and operation of the gas station where the
proposed gas station would deviate from certain conditional use standards; (3)
nine c(1) and/or c(2) variances for various ordinance deviations; (4) eleven
exceptions to allow for further deviations; (5) "[c]onditional use approval to
allow [the] operation of the conditionally permitted gas station; and" (6)
preliminary and final site approval. Plaintiff prepared a "Zoning Relief Table"
outlining the various waivers and variances it sought with the corresponding
ordinance sections and the proposed relief. The Board conducted the hearing
over twelve non-sequential days.
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A. D(1) Variance
On the first day of the public hearing, October 4, 2018, the issue of
whether a d(1) variance was required was introduced by objector U.S. Fuel.
Objector Wellington Hills Subdivision Development raised the issue of whether
a d(1) variance was required. Individual residents of the Wellington Hills
subdivision and an attorney appeared as objectors and were self-represented.
After reviewing the briefs submitted by plaintiff and the objectors, the Board
determined that a d(1) variance was required because the ordinance defined
"principal use" as the proposed use's main purpose in the singular and not in the
plural. In addition, the Board found the subject ordinance did not allow multiple
purposes or uses, and that the convenience store and gasoline station in the
proposed development were each principal uses, and one was not an accessory
to the other.
On November 1, 2018, plaintiff elicited testimony regarding the details of
the application from Michael Redel, a real estate engineer for Wawa. He stated
600 out of 800 Wawa convenience stores include a fueling station "similar in
size and scale to what" was proposed in plaintiff's application. This site location
was selected according to Redel because it comported with Wawa's business
model geared toward morning and evening commuter "rushes" on a major traffic
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5
corridor. On cross-examination, Redel testified that Wawa would not consider
reducing the size of the store or the fueling station.
Plaintiff's planning expert, Paul Phillips, testified that Wawa managed its
store and fueling station "as one single operation," which was consistent with
industry trends. Phillips opined that a d(1) variance was not required because
"to impose stricter standards for review, would be inconsistent with how the
[o]rdinance has previously been interpreted and applied for this type of use."
Alternatively, Phillips testified that plaintiff satisfied the positive criteria for a
d(1) variance since the location of the proposed development would be on a
State highway and at a signalized intersection with "pass-by" customers. In
addressing the negative criteria, Phillips testified "that the use will not cause
substantial detriment to the public good."
Gary Dean was called by plaintiff as its traffic engineering expert. Dean
testified the Institute of Traffic Engineers's (ITE) recent publication, which
"allows traffic engineers and planners th[e] ability to look at actual data from a
given land use," such as a convenience store with a gas station, "to assist in
calculating traffic for that use and how it would impact roadway conditions a nd
intersections," included a new land use category "known as a super convenience
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6
store with gas pumps." He testified as to the traffic patterns concerning this site
and New Jersey Department of Transportation regulations pertaining to the area.
B. D(3) Variance
At the commencement of the hearing on December 6, 2018, plaintiff's
counsel addressed the issue of whether d(3) conditional use variances were
required. Specifically, plaintiff's counsel queried
whether "d(3)" conditional use variances are required
in the Wawa application to allow bulk zoning
regulation deviations and site plan ordinance
requirement deviations under the Township conditional
use ordinance at issue, and if so, how many "d(3)"
conditional use variances are required in the Wawa
application to allow deviations from the applicable
zoning ordinance regulations and the applicable site
plan ordinance requirements.
Plaintiff's position was that no d(3) conditional use variances were required.
Objector U.S. Fuel's position was
that each and every deviation from each and every bulk
zoning regulation and each and every site plan
ordinance requirement requires a separate "d(3)"
conditional use variance so that [plaintiff] requires the
same number of "d(3)" variances as it requires for each
"c" bulk variance deviation and each site plan ordinance
exception deviation.
The Board rejected both plaintiff's argument that no d(3) variances were
required and U.S Fuel's argument that plaintiff required the same number of d(3)
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variances as it did for each "c" bulk variance. The Board held that plaintiff
required
one "d(3)" conditional use variance for the failure to
satisfy conditional use ordinance section 16.68.050.A
(requiring gasoline stations to satisfy all bulk zoning
ordinance regulations) and one "d(3)" conditional use
variance for the failure to satisfy conditional use
ordinance section 16.68.050.B (requiring gasoline
service stations to satisfy all site plan ordinance
requirements).
During the course of the public hearings, the Board required that plaintiff
apply for five d(3) variances based on Board comments from ordinance sections
16.68.050.A, B, C, D, and E in order to build the proposed gas station where it
would otherwise deviate from certain general conditional use requirements.
Phillips opined that plaintiff did not need to apply for d(3) variances, but he
addressed them with the understanding the Board had ruled otherwise. He
testified plaintiff could "prove that the site can accommodate any problems
associated with the proposed development and use, recognizing that it does not
comply with all of the conditions that the [o]rdinance established to have that
use."
Plaintiff sought approval to deviate from the following requirements
under ordinance section 16.68.050.A: (1) the minimum front-yard setback of
seventy-five feet needed to accommodate the fueling station canopy,
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convenience store, and trash enclosure, all of which encroached that setback; (2)
the minimum front-yard setback of seventy-five feet needed to accommodate the
underground tanks, which encroached that setback; (3) the steep slope provision
setting 49.6% as the maximum allowable hard surface area needed because
plaintiff proposed 51.3%; (4) the non-disturbance of soil or vegetation within
seventy-five feet of the top of the bank of an existing stream needed because
plaintiff proposed disturbance within seventy-five feet; and (5) the prohibition
barring the building of structures within 100 feet of the top of the bank of an
existing stream needed because plaintiff proposed disturbance within 100 feet.
Phillips addressed the buildings and structures that would encroach on the
front yard setback area. Concerning the canopy over the gas station, he testified
that "[a] canopy obviously is not the same as a building. There is not nearly as
much mass or surface footprint as compared to a building." Phillips also
addressed the steep slope provision ordinance that required "maximum
allowable hard surface area" of 49.6%. He noted that the 51.5% hard surface
coverage proposed complied with the 55% maximum permitted in the B-2 zone;
however, he acknowledged the steep slope provision ordinance reduced the
maximum permitted hard surface coverage on the property from 55% to 49. 6%.
Phillips opined the proposed 51.5% coverage was minimal because the steep
A-1563-20
9
slopes that would be impacted were "manmade" and exceeding the 49.6%
coverage "would not . . . cause a serious concern."
Regarding the required setback of seventy-five feet for the underground
tanks, he also stated, "the tanks are located in the most appropriate portion of
the site, given the layout of the operation," and explained that the fueling
unloading operation would not impede or disturb "vehicular flow or circulation
for that matter on nearby properties." Concerning the 100-foot setback and the
seventy-five-foot non-disturbance requirements, Phillips testified that he
believed the need for variance relief from these requirements was "not related
to this specific development proposal, but a function of the unique
characteristics and constraints of the site itself." He further explained that "any
development proposed on this property would have to seek variances from the
buffer requirement and/or relief from the setback requirements."
Phillips opined that "the proposed development can achieve the purposes
of protecting the stream and the associated natural resources despite the
deviation." He based his opinion on the fact that "there is no disturbance
proposed on the physical bank of the stream. The existing wood line along the
bank would be preserved[,]" and "[a]dditional landscape plantings would be
provided within the buffer zone." He stated further that the existing commercial
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10
building on the lot, which would be removed for the proposed development, was
"almost entirely within the 100-foot buffer zone."
Plaintiff also sought approval to deviate from the following requirements
under ordinance section 16.68.050.B: (1) the provisions concerning general
lighting designs; (2) the provision requiring a seventy-five-foot landscape buffer
yard depth adjacent to a residential dwelling 3, needed because plaintiff proposed
a 38.7-foot landscape buffer yard; (3) the use of high-density polyethylene pipes
provision, needed because plaintiff proposed the use of reinforced concrete
pipes instead; (4) the provision requiring shade trees be planted along adjacent
streets, needed because plaintiff proposed planting shade trees along Route 31;
(5) the provision providing replacement trees be planted on-site and plaintiff
proposed they be planted off-site; and (6) the provisions concerning circulation
and parking designs.
Phillips addressed the buffer yard ordinance that "requires [seventy-five]
feet between the site and the adjacent lot." Plaintiff proposed less than seventy-
five feet to the adjacent lot, identified as Lot 22. Phillips testified that the
landscape buffer proposed provided "an effective visual screen to Lot 22 under
3
Lot 22, adjacent to the property, had a residential building on it even though
it was not situated in a residential zone.
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the circumstances," meaning "the site constraints in terms of buildable
envelopes; as well as the fact that the residence on Lot 22 is nonconforming, and
not permitted or envisioned within the current B-2 scheme."
Under ordinance section 16.68.050.C, which required off-street parking
and loading facilities be designed as to cause minimum interference with traffic
or abutting streets, plaintiff proposed that the unloading space for the fueling
truck deliveries to the gas station be in the front yard setback area, which was
not permitted. Ordinance section 16.68.050.D required that the proposed
development provide a minimum seventy-five-foot landscaped buffer-yard
width to screen the residential dwelling on Lot 22, and plaintiff proposed
twenty-three feet. Phillips addressed the buffer-yard depth under section
16.68.050.B. Ordinance section 16.68.050.E required compliance with all
applicable provisions of Articles IV, V and Title 16, specifically the ordinances
concerning soil erosion, stormwater control and flood plain control regulations.
As to environmental concerns, Phillips relied on the testimony of
plaintiff's underground storage tank and environmental compliance and safety
expert, Tomlinson Fort, "that the service station facilities and equipment that
are used by Wawa, and also Wawa's management practices, meet[]s or exceed[]s
State and Federal standards." Fort testified extensively as to Wawa's
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construction standards, equipment, and safeguards. He specifically testified as
to the underground storage system design, stormwater management and
construction safe grounds, and Wawa's equipment maintenance program. He
opined the design of the tanks was "safe," and as to Wawa's employee training,
readiness to deal with incidents that may occur, and 24/7 emergency
preparedness. Phillips opined that the plaintiff satisfied the positive criteria for
d(3) variances concerning the proposed development because "the site can
accommodate any potential problems associated with these bulk and site
deficient deviations."
As to negative criteria, Phillips opined the gas fueling station and
convenience store were permitted in the B-2 zone. He testified the residential
lot, Lot 22, adjacent to the proposed development was "nonconforming" and a
buffer was being provided. The existing residence dwelling and commercial
building on the lot were "in a dilapidated condition," and he stated removing
them "would remove those [eyesores], and basically improve it with a modern
facility that [he] think[s] is consistent with the intent and purpose of the B-2
district."
Phillips further opined on the negative criteria of the d(3) variance that
the proposed use would not "substantially impair the intent of the [m]aster [p]lan
A-1563-20
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and [z]oning [o]rdinance," and the gas station use "meets the requirements set
forth in the conditional use standard. The development satisfies all of the
specific conditional use standards for the gas station component, and the
deviation sought from the bulk and site design can be accommodated." On
cross-examination, he conceded the entirety of the seventy-five-foot non-
disturbance area would be disturbed, and that the proposed development would
increase the number of structures in the 100-hundred-foot non-disturbance area.
C. C Variances
Plaintiff applied for nine c(1) and c(2) variances. The Board divided the
variances into five categories. First, plaintiff applied for bulk variances for
encroachment of buildings/structures into the seventy-five-foot front yard
setback requirement, specifically the canopy over the gas station, the
convenience store, and the trash enclosure. Second, plaintiff applied for a bulk
variance for deviation from the steep slope provision, which sets a maximum
allowable hard surface area of 49.6%. Third, plaintiff applied for a bulk
variance for encroachment of the underground tanks into the seventy-five-foot
front yard setback area. The Zoning Relief Table indicated that one of the tanks
would have a setback of 41.0 feet and the other 14.4 feet.
Jeffery Martell was plaintiff's engineering expert. He opined that the
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whole site "is designed to be safe and to be efficient and designed for function
for its intended use." Martell proposed that the location of the tanks would be
"at the southeast corner of the site, near the intersection of Route 31 and New
Castle Way." He stated one of the reasons for choosing this location was for
vehicular traffic concerns and a safety standpoint. According to Martell, the
location was safe for the trucks to fill the underground storage tanks.
Redel testified Wawa requested variances for the underground tanks that
encroached into the seventy-five-foot setback area. If the storage tank was
placed "between the store and the fuel canopy, it would be outside of the
setback"; if situated behind the store, "then the piping run would be extremely
long"; and would be prohibited because of the "wetland buffer behind the store."
On cross-examination, Redel explained the Township has an ordinance that
prevents changing a setback based on a prototypical layout as Wawa proposed.
Fourth, plaintiff applied for a bulk variance for deviation from the
ordinance requiring non-disturbance of soil or vegetation within seventy-five
feet of the top of the bank of an existing stream. Plaintiff had proposed
disturbance within seventy-five feet. As to the seventy-five-foot buffer
variance, Martell proposed a disturbance into the seventy-five-foot non-
disturbance area and produced an exhibit outlining the disturbance. He also
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testified as to the revised engineering plans that plaintiff submitted in response
to the prior review letters from the Township representatives. He discussed the
corrections made to the exhibits, and he stated the revised plan included "a small
retaining wall . . . to attempt to create a more natural graded corridor area along
the steam [sic]" and increased the landscaping and vegetation in that area.
Martell further testified "all of the area[s] that [are] being proposed to be
disturbed [are] essentially areas that are either paved or they are within
maintained lawn areas." He also testified as to revisions made to the plans after
reviewing reports from the Township engineer, the Board's planner, and the
Board's landscape architect. Martell clarified that the proposal was to disturb
the "entirety" of the seventy-five-foot buffer area.
Finally, plaintiff applied for deviation from the ordinance barring any
structure within 100 feet of the top of the bank of an existing stream. Martell
produced an exhibit outlining the proposed building's encroachment into the
buffer. He testified "[t]he project has no impact to the channel itself, there is no
disturbance of the physical bank or anything of that nature. We are reducing
runoff from the site into that channel."
The Board's counsel expressed confusion as to Martell's exhibits
concerning the buffer and stated the following:
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There are two things I don't understand. First, I don't
think your [e]xhibit D2 is reflecting how the
[o]rdinance is set up when it says no structures within
the [100-]foot buffer, but structures are not just
buildings, they are buildings and curbing and paving,
and I don't think D1 requests what the [o]rdinance set
up. If you have a permanent structure, it is supposed to
be [100] feet away from the stream bank. The Board
recognizes that to construct a permanent structure or
building, sometimes you have to have [twenty-five] feet
closer to the stream bank to do the construction. So[,]
I think the exhibits are wrong.
Not only do they not accurately reflect what the
[o]rdinance is requiring, but the calculations are wrong,
also.
Martell agreed to correct the exhibits to be consistent with the ordinance.
As to revisions to the exhibit, Martell testified the plan now included
"structures [such] as pavements, curbs, retaining walls, storm pipes . . . that we
believe should be considered structures under the setback." When asked
whether the proposed encroachment within that 100-foot buffer would be worse
than what the plans showed, Martell responded, "Both the existing and proposed
conditions will show more structures."
Concerning the subsequent revisions Martell made to the 100-foot-buffer
exhibit, he proposed an increase in the number of structures within 100 hundred
feet of the streambank based on the exhibit. He was aware that the ordinance
required no structure within 100 feet of the top of the streambank. At the
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conclusion of his testimony, Martell stated the 100-foot buffer exhibit would be
revised to include the basin area, which fell within the definition of a structure.
Fort testified as to the 100-foot buffer structure setback prepared by
Martell. At issue was the encroachment of the parking lot in this area.
Specifically, as to storm runoff from the parking lot, Fort stated:
[M]y understanding of it is the entire paved parking
area runs into a series of inlets which ultimately are
filtered and go into subterranean and detention and in a
steel trap out of the water system. I don't believe there
is much, if any, sheet flow directly from the paved area
to the stream. I again defer to the engineering company
on that.
D. Objectors' Testimony
Objector U.S. Fuel called Carl Peters as its engineer and planning expert.
Peters prepared six visual exhibits related to the site. Notably, exhibits OG -3
and OG-4 outlined the proposed development. He described exhibit OG-3 as
follows:
You will note the section of the convenience store
which is proposed to be constructed in the allowable
zone is shown in green. The portion of it which is
shown is in a prohibited building zone which is shown
in red, and my analysis shows [sixty-five] percent of
the store is proposed to be constructed in an allowable
building area; and [thirty-five] percent of the store area
is proposed for prohibited building areas. The canopy
itself is almost entirely to be constructed within the
front yard setback area. There is a tiny little corner here
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that would be within the permitted zone, which is less
than five percent of the area of the canopy.
Peters described OG-4 as follows:
On this diagram I have shown hard surfaces that are
outside of the permitted areas. We have this portion to
the left, which is encroaching into the stream and
residential setback areas; we have pavement that is too
close to the street on the Route 31[-]side and the New
Castle Way[-]side. We also have the trash enclosure
area in the front yard of New Castle Way. We have the
fuel storage area, which is in both front yard areas for
[Route] 31 and for New Castle Way.
As shown in the exhibits, the proposed development was clearly oversized for
the site, with thirty-five percent of the proposed development being constructed
in prohibited areas.
Peters opined plaintiff did not meet the requirements for d(1) and d(3)
variances and the site could accommodate a use that was permitted in this B -2
zone. He prepared two exhibits, one outlining only a proposed convenience
store and one only having a fueling station. He described the proposed
convenience store exhibit as smaller and fitting
within the [twenty-]foot offset from the street right of
way lines. We have sufficient parking, [thirty-six]
parking spaces, which meets the Town[ship's] standard
for a store that size.
There is room for a loading zone, trash and
recycling areas. This would require some
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encroachments into the [100-yard] buffer for some
driveways for fire safety, but it would reduce
substantially the magnitude and number of variances
requested.
Peters also described the proposed fueling station exhibit as smaller and
said it would include "a fueling station with four pumps, a small accessory
structure for restrooms, offices and some storage. This is a 700 square foot
building with associated parking, and this could fit on the site within the building
setback lines and the [100-]foot stream buffer zone." On cross-examination,
Peters acknowledged U.S. Fuel was a competitor and agreed it would not inure
to the "benefit" of U.S. Fuel if a Wawa was constructed at the proposed site.
Next to testify was objector Wellington Hills's planning expert, Michael
J. Pessolano. He opined that the site was "particularly unsuitable for the
proposed dual uses" and noted the many variances plaintiff sought. Pessolano
opined the encroachments were not "de minimus," such as ninety-one percent of
the canopy in the front yard setback. Concerning the ordinance requirement as
to loading facilities, Pessolano noted the location where the fuel would be loaded
was:
[A]n important issue because in a community that cares
about its space around its buildings, and this Board and
the Planning Board work very hard to make sites look
nice with landscaping and setbacks and building
designs to encourage and allow a tank[er] truck to be
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parked a lot of the time on the site, in a very prominent
location in the front most portion of the site. It is
extremely disharmonizing with the intent and purpose
of the [z]one [p]lan and [z]oning [o]rdinance.
E. The Public's Concerns
Members of the public voiced their concerns regarding the proposed
development, mostly related to the traffic impact the proposed development
would have. They prepared several exhibits outlining their concerns. One
public member prepared a PowerPoint presentation and provided a paper copy
of it to the Board. Her presentation included pictures concerning the heavy
traffic congestion at the site from October 2018 to November 2018.
F. Final Hearing
On September 19, 2019, the Board unanimously voted to deny plaintiff's
application. The Board found that a d(1) variance was required because the
proposed development was for two separate uses. In addition, the Board
determined plaintiff did not meet the positive criteria for d(1) and d(3) variances,
and the proposed development was oversized for the site. Thereafter, on
November 7, 2019, the Board adopted resolution number 2019-16, ratifying the
denial of plaintiff's application.
On January 16, 2020, plaintiff filed a complaint in lieu of prerogative writs
challenging the Board's decision. On April 9, 2020, the trial court heard oral
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21
argument on plaintiff's motion for leave to amend the complaint to add the
Township as a defendant. On April 13, 2020, the trial court filed a consent order
executed by counsel for the parties, withdrawing with prejudice, plaintiff's
motion to add the Township. The consent order also provided:
2. Plaintiff can argue that the [g]eneral [c]onditions
applicable to all [c]onditional [u]ses, as set forth in
Raritan [o]rdinance [s]ection 16.68.050, do not apply to
[p]laintiff's [a]pplication, and [p]laintiff can argue that
the Board should have treated the deviations from the
[g]eneral [c]onditions at issue as "c" bulk variances
only; not as "d(3)" conditional use variances.
3. Plaintiff cannot argue that the [g]eneral
[c]onditions set forth in Raritan [o]rdinance [s]ection
16.68.050 fail to contain "definitive specifications and
standards[,"] are not "clearly set forth with sufficient
certainty and definiteness[,"] are otherwise contrary to
N.J.S.A. 40:55D-67 and/or any other provisions of the
[Municipal Land Use Law (MLUL)], and/or arbitrary,
capricious, unreasonable, otherwise unlawful and/or
otherwise invalid, whether the challenge is on a per se
and/or as applied basis.
On November 20, 2020, the trial court conducted a hearing on plaintiff's
prerogative writs action. In a comprehensive January 8, 2021 oral decision, the
trial court affirmed the Board's resolution. The court concluded the Board's
findings were well-supported by the record, and its decision conformed with the
provisions in the Township ordinances pertinent to plaintiff's application and
the MLUL, specifically N.J.S.A. 40:55D-3, which addresses conditional uses of
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a property. In its decision, the court highlighted plaintiff's application requested
nine "c" variances, and the proposed development constituted a "significant
encroachment" into an area that had "environmental constraints." On January
14, 2021, the trial court entered a final judgment memorializing its decision.
This appeal followed.
II.
Plaintiff reiterates that the Board's decision to require a use variance was
contrary to law, and was arbitrary, capricious, and unreasonable because the
denial was not supported by the evidence. Plaintiff argues a d(1) use variance
was not required for its application because "there is no provision in the Raritan
[o]rdinance that specifically permits or prohibits multiple uses or mixed uses on
the same lot." In plaintiff's view, the Board's ruling requiring a d(1) use variance
for the application "rested solely on its interpretation that the convenience store
is retail 'use' (in the singular) and the gasoline fueling station is a conditionally
permitted 'use' (again, in the singular)." Plaintiff also contends that denial of its
conditional use variances and bulk variances was contrary to law. We disagree.
"[T]he role of a judge in reviewing a local variance determination is solely
to ascertain whether the action of the board is arbitrary." Kenwood Assocs. v.
Bd. of Adj., 141 N.J. Super. 1, 4 (App. Div. 1976). The judge "cannot substitute
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23
his [or her] own judgment for that of the municipal board invested with the
power and duty to pass upon the application." Ibid.; see also Advance at
Branchburg II, LLC v. Twp. of Branchburg Bd. of Adj., 433 N.J. Super. 247,
253 (App. Div. 2013) (holding "the applicant bears 'the heavy burden of proving
. . . the board's action . . . to be arbitrary, capricious or unreasonable" (quoting
Med. Realty Assocs. v. Bd. of Adj., 228 N.J. Super. 226, 233 (App. Div. 1988))).
"The board of adjustment weighs the facts and the zoning considerations,
[p]ro and [c]on, and will be sustained if its decision comports with the statutory
criteria and is founded in adequate evidence." Mahler v. Bd. of Adj., 94 N.J.
Super. 173, 185-86 (App. Div. 1967). We apply the same standard of review as
the trial court. Grubbs v. Slothower, 389 N.J. Super. 377, 382 (App. Div. 2007)
(quoting Fallone Props., L.L.C. v. Bethlehem Twp. Plan. Bd., 369 N.J. Super.
552, 561 (App. Div. 2004)).
"The action of the [B]oard is presumed to be valid." Kenwood, 141 N.J.
Super. at 4. "[L]ocal officials 'who are thoroughly familiar with their
community's characteristics and interests and are the proper representatives [sic]
of its people are undoubtedly the best equipped to pass initially on such
applications for variance.'" Medici v. BPR Co., 107 N.J. 1, 14-15 (1987)
(quoting Kramer v. Bd. of Adj., 45 N.J. 268, 296 (1965)). Only a showing by
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24
the plaintiff of "clear and compelling evidence" may overcome this presumption.
See Spring Lake Hotel & Guest House Assoc. v. Borough of Spring Lake, 199
N.J. Super. 201, 210 (App. Div. 1985); see also Dome Realty, Inc. v. City of
Paterson, 83 N.J. 212, 235 (1980) ("[C]ourts place a heavy burden on the
proponents of invalidity."). Applying the above standards, we discern no reason
to reverse.
Under the MLUL, a zoning board of adjustment has the power to grant a
variance to permit, among other things, "(1) a use or principal structure in a
district restricted against such use or principal structure, [and] (2) an expansion
of a nonconforming use." N.J.S.A. 40:55D-70(d).
To justify a "d" variance, an applicant must fit within
at least one of the three "special reasons" categories set
forth in N.J.S.A. 40:55D-70(d):
(1) where the proposed use inherently
serves the public good, such as a school,
hospital or public housing facility; (2)
where the property owner would suffer
undue hardship if compelled to use the
property in conformity with the permitted
uses in the zone; and (3) where the use
would serve the general welfare because
the proposed site is particularly suitable for
the proposed use.
[Dunbar Homes, Inc. v. Zoning Bd. of Adj., 233 N.J.
546, 552 n.3 (2018) (quoting Nuckel v. Borough of
Little Ferry Plan. Bd., 208 N.J. 95, 102 (2011)).]
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25
These "special reasons" are often referred to as the "positive criteria." See, e.g.,
Sica v. Bd. of Adj., 127 N.J. 152, 156 (1992).
The Board found that a convenience store with a gasoline fueling station
did not constitute a combined single use and, therefore, plaintiff was required to
apply for a d(1) use variance. Specifically, plaintiff asserts that the plain
language of the ordinance reveals a convenience store with a fueling station
"meets the express 'purpose' (singular) of the B-2 [z]one" and in two cases, the
Raritan Planning Board took jurisdiction and decided applications based on the
proposed use being a single permitted conditional use.
The MLUL, N.J.S.A. 40:55D-1 to -163, grants a zoning board of
adjustment the power to decide requests for interpretation of a zoning ordinance.
N.J.S.A. 40:55D-70(b). The interpretation of a zoning ordinance is purely a
legal determination, and the determination of a zoning board on the question is
not entitled to a presumption of validity. Fallone Props., 369 N.J. Super. at 561
(quoting DePetro V. Twp. of Wayne Plan. Bd., 367 N.J. Super. 161, 174 (2004)).
However, courts will give deference to a municipality's informal interpretation
of its ordinances. Ibid. (quoting DePetro, 367 N.J. Super. at 174). "[A]lthough
we construe the governing ordinance de novo, we recognize the [B]oard's
knowledge of local circumstances and accord deference to its interpretation."
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26
Id. at 562. Nonetheless, deference is limited, and the meaning of an ordinance's
language is a question of law that the court will review de novo. Bubis v. Kassin,
184 N.J. 612, 627 (2005).
In construing ordinances, determining municipal intent is no different
from interpreting and construing statutes. Atl. Container, Inc. v. Twp. of
Eagleswood Plan. Bd., 321 N.J. Super. 261, 269 (App. Div. 1999). Thus, a
zoning ordinance should be interpreted to effectuate the intent of the adopting
body, considering the language used and the objective sought to be achieved.
See Twp. of Pennsauken v. Schad, 160 N.J. 156, 170 (1999). The first step is to
examine the language of the ordinance. Ibid. If the language is clear and
unambiguous, its meaning controls; if, however, the language is susceptible to
different interpretations, then extrinsic factors, such as the ordinance's purpose,
legislative history and context must be considered. Ibid. "The general principle
is that ordinances should be liberally construed in favor of the municipality. "
Atl. Container, Inc., 321 N.J. Super. at 280. However, prohibition "of a use
must be stated with clarity." Tr. Co. of N.J. v. Plan. Bd., 244 N.J. Super. 553,
567 (App. Div. 1990).
Here, the ordinance provided that a convenience store was a principally
permitted use, and a gasoline fueling station was a conditional use. The
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27
ordinance outlined the purpose of the B-2 zone as follows: "It is the purpose of
this zone to define and provide controls for the major shopping and business
areas of the Township, serving the needs of both Township residents and the
regional population, and transient highway users."
The record amply supported the Board's finding that plaintiff's application
sought approval for two separate uses. And, the trial court aptly noted that "even
if it was subject to some level of debate, the Board is entitled to some level of
deference in interpreting their . . . own ordinance." The court determined that
the Board was correct in not treating the two separate uses as a combined single
use because it was contrary to the plain language of the ordinance, which
prohibited multiple and mixed uses. In its resolution, the Board noted t hat a
gasoline station was allowed as a conditionally permitted use pursuant to
ordinance section 16.26B.030, and a convenience store was allowed as a
principally permitted use pursuant to section 16.26B.020. Therefore, the trial
court properly found it was appropriate for the Board to hold that multiple mixed
uses were specifically prohibited because they were not expressly permitted.
Moreover, the trial court agreed with the Board's finding that expert
testimony was irrelevant as to interpreting the language of the ordinance because
it was a legal issue for the court to decide. The court was correct in its analysis.
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28
See Boddy v. Cigna Prop. & Cas. Cos., 334 N.J. Super. 649, 659 (App. Div.
2000) (holding expert witnesses may not render opinions on matters which
involve questions of law).
Plaintiff also cites two applications the Raritan Township Planning Board
reviewed in which a combined convenience store and fueling station was treated
as a single use. One was the Citgo application in 2001, now the site of the
present objector, U.S. Fuel. Plaintiff claims the Planning Board approved a
Citgo fueling station and a convenience store on the same lot. U.S. Fuel is
located a mile south of plaintiff's site, and "[t]here was no mention of a [u]se
[v]ariance in the [r]esolution of [a]pproval for the Citgo, nor any mention of a
conditional use variance, or any mention of the number of principal uses of the
lot." The other application was in 2017 for a Wawa convenience store with a
fueling station on Route 202. While plaintiff claims this application was denied
based on the hours of operation ordinance, it contends "the Planning Board
treated the application as a permitted single use without the need for a use
variance or conditional use variances." We are unpersuaded.
As to the two prior applications plaintiffs cited, the trial court agreed with
the Board's determination it was "undisputed that the Planning Board did not
interpret the ordinances at issue and did not make a determination in either of
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29
the resolutions at issue that a combined gasoline station and convenience store
was a singular use or that multiple principal uses are permitted in the B-2 zone."
(emphasis added). The Board disagreed with Phillips's opinion "that by
accepting jurisdiction over two applications submitted for gas stations with
convenience stores, the Raritan Township Planning Board implicitly determined
that those two principal uses were permitted on one lot." With regard to the two
prior applications, the Board found no objectors argued before the Planning
Board "that the combined uses were prohibited multiple uses on the lots in
question."
Further, the Board noted that even if the Planning Board accepted
jurisdiction over the two prior applications, "planning board interpretations and
jurisdictional rulings are not binding on boards of adjustment." The Board stated
that the MLUL granted boards of adjustment, not planning boards, the authority
to interpret ordinances, citing Colts Run Civic Ass'n v. Colts Neck Township
Zoning Board of Adjustment, 315 N.J. Super. 240, 246 (Law Div. 1998).
Moreover, the Board determined that, even if the Planning Board accepted
jurisdiction, its "jurisdiction ruling would be erroneous."
The Board cited Citizens for Equity v. New Jersey Department of
Environmental Protection, 126 N.J. 391, 396 (1991), in support of its assertion
A-1563-20
30
"that government has a duty to correct itself." In its conclusion, the Board noted,
"assuming for argument's sake only that the fact that the Planning Board
accepted jurisdiction of the two prior gas station applications evidences how the
Planning Board has treated this issue, the Planning Board's jurisdictional ruling
is erroneous."
Here, review of the resolutions for the two referenced applications
supports the Board's finding there was no evidence that the question of wheth er
a convenience store with a gasoline fueling station was considered a combined
single use was ever raised or decided. As to Citgo's application, which was also
for a business located in the B-2 zone, although the Planning Board stated, "[a]s
is the case with most new gasoline stations, a convenience store is also proposed
for the site," this did not imply the question of whether multiple uses were
permitted or whether a convenience store with a gas station was a combined
single use had been decided. Indeed, when read in its entirety, the Planning
Board treated the convenience store as an accessory use because it stated that
"[a]ccessory goods for sale at the filling station may be displayed out of doors
only on the pump islands but only if such display materials are contained within
a suitable metal stand or rack."
In the 2017 Wawa application, which the Planning Board denied due to
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31
the Township's twenty-four-hour ordinance, the proposed development also
consisted of a convenience store with a gasoline fueling station in the B-2 zone.
The applicant also applied for a conditional use variance. While plaintiff argues
the resolution expressly "treats" the store and gas station as a single use, there
is no indication in that resolution the issue of whether a convenience store with
a gas station was considered a combined single use was ever raised or decided.
Paragraph twenty-one of the resolution states, "[t]he development proposed by
the application is a conditional use in the B-2 [z]one." The Planning Board
either did not consider the issue or treated the convenience store as an accessory
use. We are satisfied the Board correctly found that boards of adjustment, not
planning boards, interpret ordinances. N.J.S.A. 40:55D-70b; see also Colts Run
Civic Ass'n, 315 N.J. Super. at 246 (holding board of adjustments decide
requests for interpretation of zoning ordinance).
Plaintiff also argues that support for its single use position is found in the
planning treatise, The Completed Illustrated Book of Development Definitions,
authored by Harvey S. Moskowitz and others. See Moskowitz, et al. The
Complete Illustrated Book of Development Definitions (4th ed. 2015). This
treatise defines "Gasoline Station and Convenience Center" as "[a] retail facility
combining a gasoline station and convenience store" in its comment to the
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32
definition as follows:
In such establishments, attempts to distinguish whether
one of the uses is principal and the other secondary or
accessory are of little value. Convenience stores on the
same lot as gasoline stations have become so
commonplace that where the size of the parcel of land
can accommodate both and land use regulations permit
them, they are almost always provided together.
The Board was unpersuaded by the Moskowitz definition because a convenience
store with a gasoline station were "almost always provided together" occurred
only when "the size of the parcel of land can accommodate both" gas station and
convenience store and land use regulations permit them, which was not
supported in this application because "the size of the property will not
accommodate both uses as too much development is being proposed on the
property, as is evidenced by the large number of 'c' variances and site plan
exceptions that are required." (emphasis added). The trial court agreed with this
reasoning, specifically finding the Township land use regulations did not
expressly permit the combined use and the ordinance defined principal use as
the main purpose in the singular and not plural.
We reject plaintiff's reliance on the Moskowitz comment. Notably, the
comment expressly states that two uses are only provided together if the site can
accommodate both and if land use regulations permit them. As evidenced by
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33
the exhibits plaintiff's experts submitted during the hearings, the site cannot
accommodate both uses due to the over-sized nature of the proposed
development.
Plaintiff further contends the record does not support the Board's finding
that its interpretation of the ordinance was supported by the fact "the Raritan
Planning Board conducted a master plan reexamination in [2019] and did not
change the definition of a principal use nor did it define a filling station with a
convenience store as a single permitted use." Here, during the pendency of
plaintiff's application, the Planning Board adopted the February 27, 2019
Reexamination Report in accordance with N.J.S.A. 40:55D-89, which requires
that planning boards reexamine their master plans and development regulations
every ten years. The Reexamination Report did not change the definition of
principal use or change the list of principally permitted uses.
Saliently, the trial court found that "the failure to change the ordinance as
reflected by the Reexamination Report goes considerable distance in supporting
the Board's interpretation of the ordinance here." The court relied on Medici,
107 N.J. at 20-21, for the proposition if the board of adjustment did not change
an ordinance during its revisions to the Master Plan, it may reasonably infer that
the inaction was intentional.
A-1563-20
34
The Board rejected Phillips's opinion that the two uses were "consistent
with at least two of the goals of the updated land use goals of the 2019
Reexamination Report, which basically targets growth to the existing roadway
corridors." The Board assumed (since Phillips did not specifically reference
them in his testimony) that the updated goals at issue were: (1) "[l]imit growth
to existing roadway capacities"; and (2) "[p]ermit additional non-residential
development."
As to the first goal, the Board found that the proposed two uses were
"inconsistent with the goal and objective of 'limiting' growth to 'existing
roadway capacities.'" Relying on exhibits OP-1 and OP-2 portraying the traffic
congestion at this site, the Board found that "Route 31 in the area of the property
has reached its functional, if not its actual, capacity at this time." Concerning
the second goal, the Board found "any application for non-residential
development could be argued to be consistent with this goal," but it "doubt[ed]
that [wa]s what the Planning Board had in mind when it included this goal and
objective in the Reexamination Report." It added, "[t]his is especially so in light
of the prior goal and objective of 'limiting' growth to existing roadway
capacities."
Finally, the Board noted that the Reexamination Report did not change the
A-1563-20
35
definition of principal use "from 'the main purpose for which any lot and/or
building is used' to defining principal use in terms of allowing multiple uses."
The Board noted that there was also no "change to the principally permitted use
section of ordinance 16.626B.020 which governs the B-2 zone to specifically
allow more than one principally permitted use on a lot."
In Medici, cited by the trial court and in the resolution, the Court held an
applicant seeking a use variance for a commercial purpose must establish by
enhanced proof that the variance is not inconsistent with the intent and purpose
of the master plan and zoning ordinance. 107 N.J. at 4. The zoning ordinance
in Medici did not permit hotels or motels; however, the board of adjustment had
previously approved three use variances for such uses. Ibid. The Court reversed
the grant of the use variance because the applicant had not met "the formidable
burden of proving that the grant of another use variance for a motel at this site
was not inconsistent with the intent and purpose of the zoning ordinance as
reflected by the governing body's failure to authorize motels as a permitted use
in the zone." Id. at 25-26.
The Court in Medici noted that reexamination by the planning board of
the master plan and zoning ordinance was "intended to inform the governing
body of the need for revisions in the plan and ordinance based on significant
A-1563-20
36
changes in the community since the last such reexamination." Id. at 20. Further,
"[w]hen an informed governing body does not change the ordinance, a board of
adjustment may reasonably infer that its inaction was deliberate." Id. at 20-21.
Notably, Antoine Hajjar, the Planning Board engineer, and Jessica
Caldwell, the Planning Board planner, were present when the issue of whether
a d(1) variance was required was raised in the matter under review. Either Hajjar
or Caldwell, or sometimes both, were present on all dates when testimony was
taken. Hajjar's 4 name appears on the Reexamination Report, and Caldwell was
also a writer for the Reexamination Report. Thus, the Board was correct to find
the Planning Board was aware of this issue and its choice to make no changes
despite that knowledge more likely than not shows a conscious decision not to
allow the uses as combined principal permitted uses.
Finally, plaintiff asserts the trial court was "misled" by the Board's
argument that the holding in Sun Co. v. Zoning Board of Adjustment, 286 N.J.
Super. 440 (App. Div. 1996), required a d(1) use variance for its application.
Plaintiff argues that Sun was decided twenty-five years ago and has been
"distinguished and not followed in subsequent reported cases and unreported
cases dealing with the issue of a combined convenience store with fueling
4
Also known as "Tony" in the Reexamination Report.
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37
station." It claims that the "opinions deciding cases involving interpretations of
use issues related to fueling stations and convenience stores are clear that where
filling stations are permitted and where retail stores are permitted, they are
permitted together."
In Sun, the applicant sought an interpretation of the Avalon zoning
ordinance to determine whether both a convenience store and a gas station were
permitted uses in the relevant zone. 286 N.J. Super. at 442. The zoning board
found that two principal uses were not permitted on one lot without a variance.
Ibid. The trial court reversed the zoning board's determination, and we reversed
and reinstated the complaint. Id. at 447-48. Although there was no definition
of principal use in the ordinance, this court held that not more than one principal
use was permitted on a lot without a variance. Id. at 446-47. We further noted,
"[a]lthough the ordinance is permissive, the usual rule of construction of zoning
ordinances is that where a use is not expressly provided for it is prohibited." Id.
at 444.
In discussing the ordinance, this court noted:
[E]ach zone listed in the ordinance specifies both
principal and accessory uses. Even though the zoning
ordinance does not expressly state that a lot may have
only one principal use or even that a lot may have a
principal and [an] accessory use, obviously one lot may
have both an accessory and principal use, provided such
A-1563-20
38
a use conforms to the ordinance's requirements and the
accessory use is an ancillary one. Accessory uses
generally are required, as in [the municipality]'s
ordinance, to be those which are incidental to the
principal use.
[Id. at 445 (citations omitted).]
We emphasized that the ordinance stated:
[A]n accessory use may not be "any activity normally
conducted as a business." Hence, the operation of a
convenience store would not be an accessory use not
only because it is a principal use, but because it is a
very different business from the use of a gasoline filling
station or garage. In addition, an accessory use
generally compliments or relates to the principal use.
[Id. at 446.]
While plaintiff acknowledges the ruling in Sun, it argues that the holding
is outdated, and subsequent case law has recognized a convenience store with a
gas station as a single use. Plaintiff cites three published and six unpublished
cases in support of this assertion. 5
In Jai Sai Ram, L.L.C. v. Planning/Zoning Board, the applicant sought a
use variance to construct a Wawa convenience store with a gas station on
5
"No unpublished opinion shall constitute precedent or be binding upon any
court." R. 1:36-3. Unreported decisions "serve no precedential value, and
cannot reliably be considered part of our common law." Trinity Cemetery Ass'n,
Inc. v. Twp. of Wall, 170 N.J. 39, 48 (2001) (Verniero, J., concurring).
A-1563-20
39
property located partially in a highway development zone and partially in a
residential zone. 446 N.J. Super. 338, 340-41 (App. Div. 2016). At the time,
the ordinance did not permit the proposed use in either zone. Id. at 341. We
noted that "[i]t also was not clear whether the Board would consider a combined
gas station/convenience store to constitute two principal uses on a single lot,
which was also prohibited under the zoning ordinance." Ibid.
After the applicant filed the application, the municipality amended its
ordinance, rezoning the site of the proposed Wawa and the surrounding area to
"a special economic development (SED) zone." Ibid. "However, the SED zone
did not specifically provide for a combined gas station/convenience store use,"
and the ordinance's prohibition against two principal uses on a single lot
remained. Ibid. The zoning board granted the application, finding that the
combined convenience store with a gas station constituted one principal use of
the property. Id. at 342. The plaintiffs filed an action in lieu of prerogative
writs challenging the zoning board's decision, and the trial court affirmed. Ibid.
During the pendency of the appeal, the municipality amended the
ordinance to "designate 'single use retail sales [and] gasoline filling stations
operated by a single business entity . . . not part of a planned development '" that
a convenience store with a gas station as a permitted principal use in the SED
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40
zone. Ibid. (second alteration in original). The issue on appeal was whether
N.J.S.A. 40:55D-10.5, which obviated "the time of decision rule" that had
allowed municipalities to "change the zoning to the developer's detriment while
the application was pending," should be construed "to prevent a favorable land
use amendment from applying to a pending application." Id. at 343, 345. We
determined the appeal was moot because the amended ordinance permitted the
use. Id. at 345. In a footnote, we noted that we would have affirmed the granting
of the use variance for reasons stated by the trial court even if the appeal were
not moot. Ibid. n.5.
Jai Sai is factually distinguishable because the Township here did not
amend the ordinance at issue to designate as a single use what had been separate
uses. While plaintiff relies on the Jai Sai footnote stating we would have
affirmed the use variance even absent the amendment, we are unpersuaded
because the ordinance, in that case, was different than the one at issue here.
Again, the ordinance here permitted the convenience store as a principally
permitted use and the gasoline fueling station as a conditional use.
III.
A. Denial Of D(1) Variance
As an alternative to its argument that a convenience store with a gasoline
A-1563-20
41
fueling station is a combined single use as a matter of law, plaintiff contends
denial of the d(1) variance was not supported by the evidence and was arbitrary,
capricious, and unreasonable. Pursuant to the MLUL:
No variance . . . may be granted under the terms of this
section, including a variance or other relief involving
an inherently beneficial use, without a showing that
such variance or other relief can be granted without
substantial detriment to the public good and will not
substantially impair the intent and the purpose of the
zone plan and zoning ordinance.
[N.J.S.A. 40:55D-70(d).]
Only exceptional circumstances warrant variance relief, as there exists a
"strong legislative policy favoring zoning by ordinance rather than by variance."
Medici, 107 N.J. at 23. The reviewing court must focus on the validity of the
board's action and cannot substitute its judgment for that of the board. CBS
Outdoor, Inc. v. Borough of Lebanon Plan. Bd./Bd. of Adjust., 414 N.J. Super.
563, 578 (App. Div. 2010). "The court's authority and duty is to review the
record before the Board in order to determine whether the Board's decision was
adequately supported by the evidence." Ibid.
A use variance may be granted upon a showing that the positive and
negative criteria are satisfied. N.J.S.A. 40:55D-70(d). To satisfy the positive
criteria, plaintiff must demonstrate special reasons for the grant of the variance.
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42
N.J.S.A. 40:55D-70(d). Special reasons are deemed satisfied as a matter of law
if the proposed use is one that inherently benefits the general welfare. Sica, 127
N.J. at 159-60. For a use that is inherently beneficial (e.g., a church or a school),
plaintiff is not required to demonstrate the site is particularly suitable for the
proposed use, Kohl v. Mayor & Council of Fair Lawn, 50 N.J. 268, 279 (1967),
or it may not be used for a permitted use (the latter known as the "hardship test"
for a use variance), DeSimone v. Greater Englewood Hous. Corp. No. 1, 56 N.J.
428, 440 (1970). If the use is not one that inherently serves the public good, as
in the matter under review, then special reasons must be based on site suitability
or hardship. See Medici, 107 N.J. at 18.
In the context of whether a site is particularly suited for a proposed use,
Although the availability of alternative locations is
relevant to the analysis, demonstrating that a property
is particularly suitable for a use does not require proof
that there is no other potential location for the use nor
does it demand evidence that the project "must" be built
in a particular location. Rather, it is an inquiry into
whether the property is particularly suited for the
proposed purpose, in the sense that it is especially well-
suited for the use, in spite of the fact that the use is not
permitted in the zone.
[Price v. Himeji, L.L.C., 214 N.J. 263, 292-93 (2013).]
The Price Court recognized in the context of a specific property, particular
suitability "means that strict adherence to the established zoning requirements
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43
would be less beneficial to the general welfare." Id. at 287.
The negative criteria require proof the variance "can be granted without
substantial detriment to the public good and [that the variance] will not
substantially impair the intent and the purpose of the zone plan and zoning
ordinance." N.J.S.A. 40:55D-70(d). For a use that is not inherently beneficial,
an applicant must offer "an enhanced quality of proof" the variance sought is
not inconsistent with the intent and purpose of the master plan and zoning
ordinance. Medici, 107 N.J. at 4. The proof must reconcile the proposed use
variance with the zoning ordinance's omission of the use from those permitted
in the district. Ibid.
The trial court found that plaintiff did not meet its burden for grant of a
d(1) use variance. Extrapolating from the Board's resolution, the court found
that the proposed development was not suitable for the site due to the "sheer
number" of variances plaintiff applied for, and its personal and financial
interests did not promote the general welfare. The court cited to the section in
the Board's resolution finding the proposed development would encroach the
entirety of the seventy-five-foot non-disturbance area, noting the possibility of
plaintiff proposing a smaller development to reduce the number of required
variances, and addressing Redel's testimony discussing Wawa's financial
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44
interests.
B. Positive Criteria
As to the positive criteria, the Board found plaintiff failed to meet its
burden, and it rejected Phillips's "opinion that the 'public welfare' purposes of
the MLUL . . . will be promoted by granting the 'd(1)' variance to allow the two
proposed uses on the property." The Board found while the lots contained a
nonconforming residential dwelling and a conforming commercial building, it
was not persuaded that demolishing these buildings would be "'more in line' with
the intent of the B-2 zone." And, the Board also found that granting the d(1)
variance would not promote the general welfare because the site did not provide
sufficient space for the proposed development due to the number of "c"
variances, specifically "the hard surface coverage requirement, the [seventy-
five]-foot[]non-disturbance area deviation, and the 100-foot building setback
from the stream requirement."
The Board also rejected Phillips's opinion that granting the d(1) variance
would lead to "a desirable visual environment." Under the proposed plan, the
Board noted there was no evidence establishing the proposed development
"would be aesthetically more pleasing that the existing commercial building."
The Board further found plaintiff's motivations were more in line with its
A-1563-20
45
business and financial interests than promoting the general welfare, citing Beirn
v. Morris, 14 N.J. 529, 535 (1954); Bow & Arrow Manor, Inc. v. Town of West
Orange, 63 N.J. 335, 346 (1973); Degnan v. Monetti, 210 N.J. Super. 174, 184
(App. Div. 1986); and Jock v. Zoning Board of Adjustment, 184 N.J. 562, 590
(2005). The Board was unpersuaded by the fact that the property was located
on a highway, and it determined plaintiff did not prove the granting of a "'d(1)'
use variance to allow the two uses proposed would be more beneficial to the
general welfare than by allowing just one use."
Lastly, the Board found "that rather than being particularly suited, the
property is particularly unsuited for the proposed development due to the over -
size[d] nature of the proposed development and the sheer number of 'c' variances
required to allow the proposed development on the property," and cited to
Cellular Telephone Co. v. Zoning Board of Adjustment, 24 F. Supp. 2d 359, 368
(D.N.J. 1998). The Board further noted "it [wa]s possible that the Board would
have found differently if a smaller development had been proposed, perhaps one
with the convenience store being reduced in size, the number of gasoline pumps
being reduced in number, and the weather protection canopy being reduced in
size." There was substantial credible evidence in the record to support the
Board's decision plaintiff failed to prove that the general welfare would be
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promoted by granting the d(1) variance or the property was particularly suited
for the two purposes proposed.
C. Negative Criteria
As to the first prong of the negative criteria, the Board found the plaintiff
did not prove that a d(1) variance could "be granted without substantial
detriment to the public good in terms of impaired traffic conditions in the area ."
The Board found the testimony of plaintiff's traffic expert, Dean, incredible. In
addition, the Board found Dean's testimony concerning how the traffic counts
were taken to be unreliable and untruthful, and noted how Dean "was obstinate
and tried to dodge answering question[s]" related to how data was collected,
what the rate of pay was for the individual collecting the data, and the standards
of practice utilized. See Central 25, LLC v. Zoning Bd. of Union City, 460 N.J.
Super. 446, 464-65 (App. Div. 2019) (holding that when conducting "quasi-
judicial" proceedings to determine whether an applicant has satisfied the
statutory criteria for variances, zoning boards perform the "'judicial' role of
deciding questions of credibility and whether to accept or reject testimony,
expert or otherwise"). The Board is not bound "to accept the testimony of any
expert." See Klug v. Bridgewater Twp. Plan. Bd., 407 N.J. Super. 1, 13 (App.
Div. 2009); see also Bd. of Educ. of Clifton v. Zoning Bd. of Adj., 409 N.J.
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Super. 389, 434 (App. Div. 2009) ("Zoning boards may choose which witnesses,
including expert witnesses, to believe."). Here, the traffic impact was of great
concern not only to the Board, but also to members of the community.
As to the second prong, the Board found that the d(1) variance could not
"be granted without substantial impair[ment] [of] the intent and purpose of the
master plan and zoning ordinance." The Board found Phillips's opinion that the
"variance w[ould] not substantially impair the intent and purpose of the zoning
ordinance because 'the B-2 zone already allows the uses at the very least
separately' entirely missed the point." The Board clarified "[t]he ordinance
prohibition at issue here is not on either of those uses. The ordinance prohibition
here is on having two principal uses on one lot," and emphasized that plaintiff
"failed to reconcile" the proposed variance "with the prohibition on more than
one use per lot in the B-2 zone." The record supports the Board's finding that a
d(1) variance could not be granted without substantial detriment to the public
good especially as it related to traffic impact. Because plaintiff failed to
establish the positive and negative criteria required by N.J.S.A. 40:55D-70, we
discern no reason to reverse the Board's denial of the "d" variances.
Plaintiff also asserts that even assuming the variances were required, the
Board's denial of them was arbitrary, capricious, and unreasonable, and the trial
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court should have reversed on that basis alone. In light of our decision
upholding the Board's denial of the conditional use and bulk variances, we need
not address this issue. Further, plaintiff contends it satisfied the specific
conditional use requirements for a gasoline fueling station under the Township's
ordinance, which "contains six [g]eneral [c]onditions that all conditional uses
permitted in Raritan Township have to meet." And, plaintiff claims this has
nothing to do with the specific conditions for a gasoline fueling station, and it
only applied for the six general conditions "to exhaust its administrative
remedies." Again, we are unpersuaded.
Plaintiff also states the trial court "suggested" that it waived the argument.
This is misleading, as the trial court found plaintiff did waive its challenge on
"whether or not 'd(3)' variances were required by virtue of . . . plaintiff's conduct
here and even by [its] invited error, the defendant's invited error ." The court
found that in plaintiff's initial application, it applied for d(3) variances.
"A trial court's interpretation of the law and the legal consequences that
flow from established facts are not entitled to any special deference."
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
"Waiver is the voluntary relinquishment of a known right evidenced by a clear,
unequivocal and decisive act from which an intention to relinquish the right can
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be based." Mitchell v. Alfred Hofmann, Inc., 48 N.J. Super. 396, 405 (App. Div.
1958). The invited error doctrine:
[O]perates to bar a disappointed litigant from arguing
on appeal that an adverse decision below was the
product of error, when that party urged the lower court
to adopt the proposition now alleged to be error. The
rule is based on considerations of fairness and
preservation of the integrity of the litigation process.
[Brett v. Great Am. Rec., Inc., 144 N.J. 479, 503
(1996).]
In support of the Board's assertion that plaintiff waived its right to
challenge the d(3) variance, it cites Chicalese v. Monroe Township Planning
Board, 334 N.J. Super. 413 (Law Div. 2000). In Chicalese, the trial court held
plaintiffs waived their right to argue that subdivision approval was not required
by applying to the planning board for such approval. Id. at 424. Here, plaintiff
waived its right to challenge the Board's decision on the merits as to the d(3)
variances when, in both its initial and final applications, plaintiff applied for
d(3) variances. Counsel for plaintiff agreed during the June 6, 2019 hearing
session plaintiff needed several d(3) variances for deviations from the "general
conditions" applicable to all conditional uses under the ordinance. During
closing argument, plaintiff's counsel agreed that d(3) variances from the
ordinance regulations and requirements at issue were required. Additionally,
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counsel agreed with the "jury charge" that the Board attorney had prepared,
reserving the applicant's rights to contest only one issue, that a d(1) variance
was not required.
Plaintiff further contends that the Board "should have treated the
conditional use variances as bulk variances." It argues that "[t]he issue of
incorporating all of the bulk requirements of a particular zone in a conditional
use ordinance, or incorporating other ordinance provisions outside of the zoning
ordinance in a conditional use ordinance, has long confused applicants, land use
boards and commentators."
As to whether d(3) variances were required from general conditional use
standards, the trial court found plaintiff provided no support, such as case law,
for its assertion that no such variances were required. The trial court found that
there was no confusion as to whether the standards for both d(3) variances and
bulk variances had to be satisfied. Moreover, the court noted plaintiff's
argument the general "conditional use standards applicable to all conditional
uses demonstrates that the governing body did not intend for the general
conditions for all the conditional uses to apply to the plaintiff's application when
plaintiff's application met the specific conditions for a gas station" was contrary
to the purposes of the ordinance and N.J.S.A. 40:55D-3 "to the designated
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purposes of establishing conditional uses in the [T]ownship." The court further
referenced the Board's decision on this issue and agreed with the Board's
determination that the governing body enacted general conditional use standards
because it did not feel "comfortable" with the specific conditional use standards
"alone."
Plaintiff argues that the Board and the trial court were "confused" as to
whether the standards for d(3) and bulk variances had to be satisfied, and
thereby, misinterpreted the ordinance. We disagree.
Here, the Board members were knowledgeable about the community, the
property, and well educated as to the ordinances. Additionally, the ordinance
incorporated by reference the bulk regulations that plaintiff outlined in its
Zoning Relief Table. An applicant who did not meet the bulk and site
requirement would have to obtain d(3) variances and meet the stricter
conditional use variance standard established in Coventry Square, Inc. v.
Westwood Zoning Board of Adjustment, 138 N.J. 285, 298-99 (1994) (holding
"a conditional-use variance applicant must show that the site will accommodate
the problems associated with the use even though the proposal does not comply
with the conditions the ordinance established to address those problems"). Thus,
we conclude plaintiff's argument that it was not required to apply for d(3)
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variances from the general conditional use standards is devoid of merit.
To the extent we have not addressed plaintiff's remaining arguments, it is
because they lack sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
The Board's resolution was adequate. It specified all of the exhibits and
the portions of testimony the Board relied upon to make its factual findings and
set forth the evidence and factual findings in detail. The Board made factual
findings after considering all the evidence presented and explained how its
findings supported its ultimate legal conclusions.
Affirmed.
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