DEPETRIS FAMILY, LLC VS. MEDFORD TOWNSHIP ZONING BOARD OF ADJUSTMENT (L-1938-17, BURLINGTON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: April 21, 2020
• Docket: A-6009-17T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-6009-17T1

DEPETRIS FAMILY, LLC,

Plaintiff-Respondent,

v.

MEDFORD TOWNSHIP ZONING BOARD OF ADJUSTMENT,

Defendant-Appellant. _______________________________

Submitted March 16, 2020 – Decided April 21, 2020

Before Judges Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L- 1938-17.

Platt & Riso, PC, attorneys for appellant (Christopher J. Norman, on the briefs).

Hyland Levin Shapiro LLP, attorneys for respondent (Robert Baranowski, on the brief).

PER CURIAM In this action in lieu of prerogative writs, defendant Medford Township

Zoning Board of Adjustment (the Board) appeals from an August 9, 2018

judgment in favor of plaintiff Depetris Family, LLC, reversing the Board's

denial of plaintiff's variance application and remanding to the Board for

further proceedings. We reverse and uphold the Board's denial of the use

variance application.

Plaintiff owns real property, known as the Village at Taunton Forge

Shopping Center (the Center), in the Township of Medford, located in the

Community Commercial Zoning District (CC Zone). In 2014, the Board

approved plaintiff's plan to redevelop the Center, including permission for a

coffee shop. Plaintiff instead proposed opening a Dunkin' Donuts with a

drive-through; however, the CC Zone prohibits fast food restaurants, including

drive-through food establishments. Plaintiff therefore applied for a use

variance and site plan approval.

The Board held hearings over the course of three days between March

2017 and July 2017. Plaintiff's representatives, and Dunkin' Donuts's

representatives, testified in support of the application. Board members, who

were familiar with the local conditions, expressed concern about how the

proposed drive-through would impact traffic. The Board reviewed a traffic

study, which confirmed that the average time needed to make a left turn out of

A-6009-17T1 2 the Center and onto Tuckerton Road during morning peak traffic was 78.2

seconds per vehicle, and that with the addition of the drive-through, typically

three to four vehicles would queue while waiting to make that left turn. Thus,

drivers may wait several minutes before being able to exit the Center. The

study also considered an alternative, more circuitous exit route, which would

require an average time of 37.8 seconds per turn. At the end of the hearings,

the Board denied the application.

The Board premised the application 's denial on its conclusion that the

drive-through would be an ineffective and unsafe egress from the shopping

center for left turns onto Tuckerton Road between 7:00 a.m. and 9:00 a.m. It

relied on Price Co. v. Zoning Board of Adjustment of Union, 279 N.J. Super.

327, 334 (Law Div. 1993) (stating that Board members could reject expert

testimony and rely on their own knowledge of traffic conditions), aff'd o.b.,

279 N.J. Super. 207 (App. Div. 1994).

On appeal, the Board raises the following points for this court's

consideration:

POINT I

THE ZONING BOARD'S DENIAL OF THE REQUESTED USE VARIANCE WAS REASONABLY MADE AND SUPPORTED BY EVIDENCE IN THE RECORD BELOW.

A-6009-17T1 3 In its reply brief, the Board raises the following additional points, which we

have renumbered:

A. The Zoning Board Reasonably Relied Upon The Traffic Gap Study Finding Of A 78.2 Second Delay For Left-Turns Onto Tuckerton Road To Justify Its Denial Of The Use Variance.

B. The Zoning Board's Denial Of Use Variance Approval Was Not Based Upon Any Misinformation Or Misunderstanding.

C. The Zoning Board Did Not Discriminate Against Respondent's Dunkin['] Donut[s] Application, Compared To Other Coffee Shops With Drive-[Throughs] Granted Use Variance Approval In Other CC Zoning Districts of Medford Township.

D. The Zoning Board's Approval Of Drive- [Throughs] For A Bank And Rite Aid Pharmacy At Respondent's Shopping Center Is Not Dispositive Because Those Uses Are Not AM Peak Uses.

E. The 2015 Site Plan Approval For A Coffee Shop At Respondent's Shopping Center Without Drive-[Through] Is Not Dispositive, Because The Board Reasonably Concluded That Coffee Shops With Drive-[Throughs] Generate Higher Customer Trips.

F. The Zoning Board Engineer Provided The Zoning Board With Relevant Evidence Of A Traffic Gap Study Concluding That a 78.2 Second Delay Would Exist For Left-Turns Onto Tuckerton Road And Allowed The Board Members To Reach Their Own Conclusions As

A-6009-17T1 4 [To] Whether Such Condition Was Unacceptably Inefficient Or Unsafe.

G. The Zoning Board Members' Collective Decision Is Set Forth In Its Resolution Of Denial.

Our standard of review is well settled. "We have long recognized that

zoning boards, 'because of their peculiar knowledge of local conditions[,] must

be allowed wide latitude in the exercise of delegated discretion.'" Price v.

Himeji, LLC, 214 N.J. 263, 284 (2013) (alteration in original) (quoting Kramer

v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965)). A local board's

decision "enjoy[s] a presumption of validity, and a court may not substitute its

judgment for that of the board unless there has been a clear abuse of

discretion." Ibid. A court "should not disturb the discretionary decisions of

local boards that are supported by substantial evidence in the record and reflect

a correct application of the relevant principles of land use law." Lang v.

Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58-59 (1999).

Under the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163, a

zoning board is vested with the power "[i]n particular cases for special

reasons, [to] grant a variance to allow departure from regulations . . . to permit

. . . a use or principal structure in a district restricted against such use or

principal structure[.]" N.J.S.A. 40:55D-70(d). "No variance or other relief

may be granted . . . without a showing that such variance or other relief can be

A-6009-17T1 5 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." Ibid.

The Board contends that it reasonably relied on the traffic study in

concluding that plaintiff's use variance application should be denied. "A

planning board should consider off-site traffic flow and safety in reviewing

proposals for vehicular ingress to and egress from a site." Dunkin' Donuts of

N.J., Inc. v. Twp. of N. Brunswick Planning Bd., 193 N.J. Super. 513, 515

(App. Div. 1984) (citation omitted). "[T]he authority to prohibit or limit uses

generating traffic into already congested streets or streets with a high rate of

accidents is an exercise of the zoning power vested in the municipal governing

body." Ibid. (citation omitted); see also El Shaer v. Planning Bd. of Lawrence,

249 N.J. Super. 323, 329 (App. Div. 1991) (indicating that "it was entirely

proper for the [b]oard to consider the accessibility to and from the

development onto . . . a heavily travelled state highway").

In Price Co., the judge announced that, in considering whether to grant a

use variance application, a zoning board has a right to consider existing traffic

conditions and the impact that the proposed use would have on those

conditions. 279 N.J. Super. at 334. The judge noted that the board had a right

A-6009-17T1 6 to rely on "their own peculiar knowledge of traffic conditions" in rejecting the

application for the use variance. Ibid.

Here, the Board denied plaintiff's application based on comprehensive

traffic reports and personal knowledge of traffic conditions in making their

decision. It found that "the 78.2-second delay time for left-turn movements by

each vehicle creates a potentially hazardous condition for impatient or

inexperienced motor vehicle operators." At best, this drive-through Dunkin'

Donuts would result in inefficient traffic circulation at peak hours, and at

worst it would result in unsafe traffic conditions. Cf. Sica v. Bd. of

Adjustment of Wall, 127 N.J. 152, 166 (1992) (holding that a board should

consider whether the use variance grant "would cause a substantial detriment

to the public good ").

The Board members used their own knowledge and experience in

considering the existing traffic conditions around the Center. See Price Co.,

279 N.J. Super. at 334. The Board emphasized that the roads are "heavily

trafficked," especially during peak morning hours. In its decision, the Board

explicitly stated it considered the submitted expert opinions in determining

whether to grant the use variance. Based on those opinions, as well as

personal considerations, the Board determined that the use variance should not

be granted.

A-6009-17T1 7 The Board asserts, and we agree, that it did not rely upon any

"misinformation or misunderstanding" or facts to support its denial of the use

variance application. Plaintiff argues that the Board "erroneously asserted that

the study was conducted over the Easter break," and therefore traffic was

"down significantly" that day. Although one Board member initially believed

that the study was conducted during the local school's Easter break, the Board's

engineer stated that the Board member was incorrect and that school was in

session on the day the study was conducted. Additionally, the Board's

chairperson reiterated that the Board member was incorrect, and the mistaken

Board member himself then admitted that the school was on Easter break the

following week. We therefore reject plaintiff's assertion that the entire Board

was mistaken. The Board member corrected himself and recanted his

statement. As plaintiff notes, the Board members were aware of the incorrect

statement before making their ultimate determination.

The Board argues that it reasonably denied this use variance

application⸻despite approving applications for other coffee shops with drive-

throughs⸻because of the impact this establishment would have on traffic in

considering its location. The Board may contemplate off-site traffic

considerations when determining whether or not to grant a use variance

A-6009-17T1 8 application, and it can take steps to limit traffic into already congested areas.

Dunkin' Donuts, 193 N.J. Super. at 515; see El Shaer, 249 N.J. Super. at 329.

Here, there is no evidence that the Board discriminated against this

proposed use variance compared to other coffee shops with drive-throughs in

the area. The Board reasonably explained that the other coffee shops are

located in areas that are considerably more accessible. Additionally, the

approval of one of the other coffee shops was conditioned on a no-left turn out

of the area.

The Board previously approved drive-throughs in the Center for a Rite-

Aid and for a bank. The Board contends that these previous approvals do not

require them to now approve a Dunkin' Donuts drive-through in the same

shopping center. We agree. Just because a proposed use fits within the

scheme of an existing shopping center does not necessarily support the

assertion that a particular location would be suitable for a fast food restaurant.

Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of

Adjustment, 388 N.J. Super. 67, 77 (App. Div. 2006); see also Funeral Home

Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 209 (App. Div. 1999) (holding

that "although property may be thought to be particularly suitable for a

proposed use because the use fits well with the surrounding area . . . , that does

not equate to special reasons"). Furthermore, even if a zoning board grants a

A-6009-17T1 9 conditional site plan approval, the board is not required to ultimately grant

approval if the applicant is unable to meet all conditions. See Park Ctr. at

Route 35, Inc. v. Zoning Bd. of Adjustment of Woodbridge, 365 N.J. Super.

284, 291 (App. Div. 2004). As the Board noted in its brief, those use

variances were granted because they were "conditioned upon the installation of

a pork chop 1 to prevent left-turn movements onto Tuckerton Road," which is

the same reason for the denial here.

The Board next argues that it was not required to grant a use variance for

a Dunkin' Donuts with a drive-through, even though it had granted a

preliminary approval for the site without a drive-through. The Board contends

that a Dunkin' Donuts with a drive-through at another location generated sixty

percent higher income after the drive-through was installed, therefore it was

reasonable to conclude that more customers would come to the proposed

Dunkin' Donuts, thus increasing traffic in and out of the Center.

Plaintiff's traffic engineer testified that the amount of traffic added by

the drive-through would not be significant. However, when pressed at the

hearing to quantify the difference, the traffic engineer failed to provide

1 A pork chop is a triangular island with a tail pointing to approaching traffic. The pork chop forces traffic to go a certain way⸻in this case to the right⸻to prevent the attempt to make a left turn on Tuckerton Road.

A-6009-17T1 10 numbers to reinforce his opinion. The Board disregarded that part of the

factually unsupported traffic engineer's opinion.

In its resolution of decision, the Board specifically enumerates, as it

argues here, that it used plaintiff's expert opinion to draw its own conclusions.

The Zoning Board Engineer then reviewed [plaintiff's] complete supplemental traffic analysis in his report, . . . which concluded that, at full build out conditions, during the [a.m.] peak hour (from [seven a.m.] to [nine a.m.]), a Level of Service "F" is projected for a left-turn onto Tuckerton Road from the [Center's] entrance with an average delay of 78.2 seconds per vehicle attempting such movement. The Zoning Board Engineer, thus opined that, on average, a total of [three] to [four] vehicles would likely [queue]/stack in attempting this left-turn movement[.]

As the Board made clear, it did not reject plaintiff's expert testimony. Rather,

it used the expert's testimony and reports to come to its own conclusions. See

Price Co., 279 N.J. Super. at 334 (noting that the board "had a perfect right to

reject the testimony of the traffic experts, to the extent that they disagreed with

them, and to use their own peculiar knowledge of traffic conditions"). The Board

explained how it got to its final decision and which facts and testimony it relied on.

N.J.S.A. 40:55D-10(g) provides that "[t]he municipal agency shall

include findings of fact and conclusions based thereon in each decision on any

application for development and shall reduce the decision to writing." The

agency must then "provide the findings and conclusions through . . . [a]

A-6009-17T1 11 memorializing resolution adopted at a meeting[.]" Ibid. A decision on an

application must be written and include "findings of fact and conclusions

based thereon. " Aurentz v. Planning Bd. of Little Egg Harbor, 171 N.J. Super.

135, 142 (Law Div. 1979).

In Scully-Bozarth Post #1817 of Veterans of Foreign Wars v. Planning

Board of Burlington, 362 N.J. Super. 296, 312-13 (App. Div. 2003), this court

announced that discussion amongst board members in a public forum is

beneficial, but not mandatory. This court urged that off-the-record discussions

between board members is appropriate. Ibid. Typically, before finalizing its

resolution, board members will discuss multiple versions of the resolution to

ensure that it encompasses all board member's intent. Ibid.; see Park Ctr. at

Route 35, 365 N.J. Super. at 289 (holding that the entire record is to be

considered in determining what was decided, notwithstanding the failure to

include in the memorializing resolution).

Here, the Board's resolution encompassed its findings, which were

supported by the record. The nine-page resolution clearly announced the facts

that the Board considered in making its decision. The resolution recognized

testimony that it found unconvincing. It noted that the Board's engineer agreed

with the information in plaintiff's traffic report and used it to come to his own

conclusions. The Board clearly found that the grant of the use variance would

A-6009-17T1 12 result in traffic delays of up to an average of 78.2 seconds per car, which

would exacerbate traffic during peak morning hours. Because of these

findings, the Board ultimately denied the use variance application. The

Board's reasoning and findings were clearly enumerated in its resolution.

Finally, the Board argues further that the judge misinterpreted Section

602(D) of Medford's Land Development Ordinance (LDO). Specifically, the

Board questioned the judge's conclusion that the Board's denial "was improper

because Medford Township failed to adopt zoning standards for a use that is

not a permitted use." This section applies only to fast food restaurants

constructed prior to June 1, 1992, which does not include plaintiff. Thus, it is

inapplicable.

Reversed.

A-6009-17T1 13