E-Z AUTO SERVICE INC. v. MAYOR AND TOWNSHIP COMMITTEE FOR THE TOWNSHIP OF PLUMSTED, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4853-03T54853-03T5

E-Z AUTO SERVICE INC.,

a New Jersey Corporation,

Plaintiff-Appellant,

vs.

MAYOR AND TOWNSHIP COMMITTEE

FOR THE TOWNSHIP OF PLUMSTED,

and PLUMSTED TOWNSHIP LAND

USE BOARD,

Defendants-Respondents,

and

WAWA, INC., and JAMES AND

ELIZABETH BARULICK,

Defendants.

 

E-Z AUTO SERVICE INC.,

a New Jersey Corporation,

Plaintiff-Appellant,

vs.

OCEAN COUNTY PLANNING BOARD,

and WAWA, INC.,

Defendants-Respondents.

 

E-Z AUTO SERVICE INC.,

a New Jersey Corporation,

Plaintiff-Appellant,

vs.

PLUMSTED TOWNSHIP LAND USE

BOARD, and WAWA, INC.,

Defendants-Respondents.

__________________________________

 

Submitted: March 27, 2006 - Decided June 19, 2006

Before Judges Cuff, Lintner and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1221-01, L-3711-01, L-3265-02.

Azrak & Associates, attorneys for appellant (Fredric F. Azrak, Peter V. McArthur, and Ira E. Weiner, on the brief).

Gilmore & Monahan, attorneys for respondents Mayor and Township Committee of the Township of Plumsted (Lawrence L. McIver, on the brief).

Timothy M. Prime, attorney for respondent WaWa, Inc. (Julie A. Williamson, on the brief).

Michael H. Mathis, Assistant County Counsel, attorney for respondent Ocean County Planning Board.

Dasti, Murphy, McGuckin, Ulaky, Cherkos & Connors, attorneys for respondent Plumsted Township Land Use Board, join in the briefs of Plumsted Township and WaWa, Inc.

PER CURIAM

This appeal seeks review of three zoning and planning approvals to allow construction of a WaWa convenience store with gasoline service on two adjacent lots in Plumsted Township, Ocean County. Specifically, we review the action of the Mayor and Township Committee for the Township of Plumsted (Township Governing Body) to rezone a lot from residential to commercial, site plan approval for the project by the Plumsted Township Land Use Board (Township Land Use Board), and site plan approval by the Ocean County Planning Board (County Planning Board). Each application was opposed by plaintiff E-Z Auto Service, a competitor of WaWa, Inc. (WaWa) and it appeals from the three orders upholding the municipal and county actions. We affirm.

WaWa is the contract purchaser of Block 77, Lots 70 and 72 in the Township of Plumsted. The property is at the intersection of Lakewood Road and Pinehurst Road, designated as Routes 528 and 539, respectively, and known locally as Marshall's Corner. Lot 72 is zoned C-3 and contains a restaurant known as "Marshall's Corner Deli." There had been gasoline service on this lot, but the underground tanks had never been upgraded to meet current standards and gasoline had not been dispensed at this site for some time. Lot 70 was originally zoned R-40, but on March 12, 2001, the Township Governing Body changed the zoning to C-3.

The permitted uses in the C-3 zone include:

1. Any use considered to be of a retail or wholesale nature.

2. Auto, truck and trailer sales, service, storage and repair, provided however that dismantled or junked cars, or parts of cars unfit for operation on the highway shall not be stored or sold on the premises. Automobile service stations, provided all gasoline pumps or appliances for dispensing gasoline shall be located not less than 30 feet from the street right-of-way, nor shall a service station be erected or located closer than 2,000 feet from any other service station as measured along the street line.

. . . .

5. Drive-in or open-air restaurant or convenience food or beverage establishment.

The C-3 zone allows as conditional uses: churches, other places of worship, and warehouses on properties at least five acres in area. The Ordinance contains no mention of accessory uses in any of the commercial zones.

The R-40 zone is a low density residential zone and is intended for one-acre detached single-family residential development. The recommended minimum lot size is 40,000 square feet with a maximum overall density of one dwelling per acre. Permitted uses include detached single-family dwellings. Accessory uses and buildings include private garages, tool sheds, customary farm buildings, and roadside stands. Conditional uses are: community residences for the developmentally disabled, community shelters for victims of domestic violence, and churches and other places of worship.

A single-family residence and a commercial auto repair shop are located on Lot 70. There has been a variance for the auto repair shop since 1977. On the adjoining Lot 69, also zoned R-40, there is a residence and a towing company. Marshall's Corner also has an existing WaWa Market, and a shopping center.

WaWa's first site plan proposed demolition of the existing buildings on the property and construction of a 5740 square-foot food market and gas station with sixteen fueling positions and two canopies. The final site plan called for a 4911 square-foot store with twelve fueling positions.

The 1995 Master Plan addresses commercial uses in paragraph 6 of section III-B, which provides in relevant part:

6. Commercial

As shown on the Land Use Plan, the "Commercial" designation is proposed for several areas within the Township. The "Commercial" designation generally corresponds to areas of existing commercial development. It also allows for some additional commercial development to serve areas of new and existing residential development. The areas designated "Commercial" are intended to provide goods and services for the various concentrations of residential development in proximity to these commercial areas.

Several areas previously zoned for commercial development along Ocean County Route 537 and Ocean County Route 539 have been eliminated as commercial areas in the Land Use Plan due to existing nonconforming residential development within the areas. The proposed commercially designated areas along Ocean County Route 539 have been modified to reflect changed conditions since the 1974 Master Plan.

"Commercial" changes reflected in the Land Use Plan include:

. . . .

6. The existing commercial (C-3) area at Marshall's Corner (Ocean County Route 539 and Ocean County Route 537) has been reduced in area. The entire zone, with the exception of "Marshall's Corner Deli" and the new shopping center, has been built out with single family residences. The proposed commercial area is to include only the existing commercial establish-ments.

REZONING

Jennifer Knill, now Jennifer Beahm, a professional planner, testified before the Township Land Use Board in support of the Board recommending the zoning change to the Township Governing Body. She relied on language from the Master Plan, which states that its goals and objectives are to encourage new business development as well as improvements and preservation of existing businesses in designated centers. She reviewed the 1977 grant of a use variance for Lot 70 and stated that the zoning change would eliminate three existing variances for Lot 72 and four for Lot 70. She stated that the zoning change was consistent with surrounding land uses and with the existing commercial use on the site. Accordingly, she opined that the change would not substantially impair the purpose and intent of the Zoning Ordinance and would not pose a detriment to the public good. On March 1, 2001, the Township Land Use Board recommended passage of the zoning change to the Township Governing Body.

At a public comment session on the proposed ordinance before the Township Governing Body, plaintiff opposed the zoning change for Lot 70 as spot zoning. David Volz, an environmental consultant hired by plaintiff, stated that WaWa's gas service would produce air pollution that would conflict with the environmental and natural resources component of the Township's Master Plan. In addition, he claimed that the proposed use would adversely impact on stormwater management and drinking water.

Alexander Litwornia, a traffic engineer hired by plaintiff, stated that the WaWa proposal would increase traffic, detract from the rural character of the Township, and affect safety and efficient circulation of traffic. He added that grouping together two lots would result in greater development than envisioned by the Master Plan.

William Gregor, a professional planner hired by plaintiff, stated that he reviewed the Township Master Plan and concluded that the proposed rezoning was inconsistent with its goals and objectives and constituted spot zoning. He added that the Township Land Use Board should consider an application for a use variance rather than a zone change that would constitute "creeping zoning."

Other members of the public spoke about the rural nature of the Township. They also contended that additional traffic and pollution would be generated by the new business. The Township Governing Body voted three to one to approve the zone change and enacted Ordinance No. 01-06.

Plaintiff argued in the trial court and renews the argument here that the rezoning is spot zoning and invalid. It based its argument on a deviation from the Master Plan. It also argued that the ordinance was adopted in violation of the notice provisions of N.J.S.A. 40:55D-62.1.

Judge Oles noted that the history of the use of the property was important. He found that "[o]n February 16, 1977, a Special Reasons Variance was granted to permit the owner of the property to construct a 32' x 30' garage for the purposes of automotive repair." The variance allowed a mixed use of the lot consisting of a residence and an automotive repair facility and that mixed use continued to the present time.

Judge Oles also found that there was a valid municipal reason to rezone the property. Specifically, he found that the rezoning encouraged the appropriate use and development of land and provided sufficient space in appropriate locations for a variety of commercial uses. See N.J.S.A. 40:55D-2a and g. The judge also cited the testimony of the planning staff. Their testimony emphasized that Lot 70 was contiguous to Lot 72, that Lot 72 was zoned C-3, and that one of the current uses on Lot 70 was a permitted use in the C-3 zone. He also concluded that the incorporation of Lot 70 into the C-3 zone was an inconsequential deviation from the Master Plan.

Regarding that deviation, Judge Oles recognized that the law does not require exact congruence with the Master Plan but requires only substantial consistency. He also acknowledged that the Land Use and Plan Section of the 1995 Master Plan did not account for the mixed residential and commercial uses on Lot 70. He noted, however, that "a simple reading of the particular paragraph reflects that the Planning Board was attempting to acknowledge the existing uses that were located in the particular area." Finding that it was undisputed that Lot 70 "was approved for both residential and commercial uses" since 1977, "[p]lacing [Lot 70] into the [C]-3 Zone is consistent with the acknowledgment that this particular Lot is not exclusively used for residential purposes but is more consistent with the neighborhood commercial area." Accordingly, Judge Oles found that the rezoning was substantially consistent with the Master Plan.

On the other hand, Judge Oles found that the Township Governing Body did not comply with the notice provisions of N.J.S.A. 40:55D-62.1. The attorney for the applicant rather than the municipal clerk provided the notice required by statute to property owners within 200 feet of the boundaries of the district affected by the proposed zoning change. The Township Governing Body was allowed thirty days to introduce an amendment to the Zoning Ordinance consistent with the notice requirements of the Municipal Land Use Law. On April 5, 2004, the Township Governing Body re-adopted the ordinance. On appeal, plaintiff argues that the re-adopted ordinance, Ordinance No. 2004-03, did not comply with the notice requirements of Judge Oles's April 2, 2004 order.

Plaintiff's challenge to the rezoning of Lot 70 is founded on four arguments. It contends that the rezoning is substantially inconsistent with the Master Plan, that the Township Planner should not have been allowed to testify as to the intent of the Township Land Use Board in enacting the land use element of the Master Plan, that the judge erred in finding that the rezoning was supported by a valid municipal purpose, and that the Township Governing Body did not give the requisite notice as required by the April 2, 2004 order.

The standard of review for a challenge to a zoning ordinance is well established. "A zoning ordinance is insulated from attack by a presumption of validity, which may be overcome by a showing that the ordinance is 'clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning or the [zoning] statute.'" Riggs v. Twp. of Long Beach, 109 N.J. 601, 610-11 (1988) (quoting Bow & Arrow Manor, Inc. v. Town of W. Orange, 63 N.J. 335, 343 (1973)); accord Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 289-90 (2001), cert. denied, 535 U.S. 1077, 122 S. Ct. 1959, 152 L. Ed. 2d 1020 (2002). The party attacking an ordinance bears the burden of overcoming the presumption of validity attached to it. Riggs, supra, 109 N.J. at 611.

"In evaluating whether a zoning ordinance is arbitrary, capricious, or unreasonable, a court's role is not to pass on the wisdom of the ordinance; that is exclusively a legislative function." Pheasant Bridge Corp., supra, 169 N.J. at 290. Rather, "[t]he wisdom of a zoning ordinance or an amendment thereto 'is reviewable only at the polls.'" Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 385 (1995) (quoting Kozesnik v. Twp. of Montgomery, 24 N.J. 154, 167 (1957)). Our Supreme Court in Bow & Arrow Manor, Inc., supra, 63 N.J. at 343, explained:

It is fundamental that zoning is a municipal legislative function, beyond the purview of interference by the courts unless an ordinance is seen in whole or in applica tion to any particular property to be clearly arbitrary, capricious or unreason able, or plainly contrary to fundamental principles of zoning or the statute. It is commonplace in municipal planning and zoning that there is frequently, and cer tainly here, a variety of possible zoning plans, districts, boundaries, and use restriction classifications, any of which would represent a defensible exercise of the municipal legislative judgment. It is not the function of the court to rewrite or annul a particular zoning scheme duly adopted by a governing body merely because the court would have done it differently or because the preponderance of the weight of the expert testimony adduced at a trial is at variance with the local legislative judg ment. If the latter is at least debatable it is to be sustained.

[citation omitted.]

"[T]he fundamental question in all zoning cases 'is whether the requirements of the ordinance are reasonable under the circumstances.'" Pheasant Bridge Corp., supra, 169 N.J. at 290 (quoting Vickers v. Twp. Comm. of Gloucester Twp., 37 N.J. 232, 245 (1962), appeal dismissed and cert. denied, 371 U.S. 233, 83 S. Ct. 326, 9 L. Ed. 2d 495 (1963), overruled on other grounds, S. Burlington County N.A.A.C.P. v. Twp. of Mount Laurel, 92 N.J. 158, 276-77 (1983)).

In his concurrence in Riggs, Justice Handler stated that the essence of validity of a zoning ordinance is premised on its conformity to a comprehensive planning scheme. Riggs, supra, 109 N.J. at 618. In Manalapan Realty, L.P., supra, 140 N.J. at 383-84, the Court defined substantially consistent as follows:

The Legislature has not defined what is meant by "substantially consistent" with a master plan. "When construing legislation, in the absence of a specific definition, we give words their ordinary and well-understood meanings." Great Atl. & Pac. Tea Co. v. Borough of Point Pleasant, 137 N.J. 136, 143-44 (1994); Levin v. Township of Parsippany-Troy Hills, 82 N.J. 174, 182 (1980). The only interpretation of "substantially consistent" that will not defeat the objective of the MLUL is to give these words their plain meaning. Substantial means "[h]aving substance; not imaginary, unreal, or apparent only; true, solid, real," The Compact Oxford English Dictionary 1947 (2d ed. 1993), or, "having real existence, not imaginary[;] firmly based, a substantial argument." The New Lexicon Webster's Dictionary of the English Language 987 (1987). Thus, the concept of "substantially consistent" permits some inconsistency, provided it does not substantially or materially undermine or distort the basic provisions and objectives of the Master Plan.

Here, the addition of Lot 70 to the C-3 Zone is substantially consistent with the Master Plan because Lot 70 is contiguous to the C-3 Zone and contains a use that is a permitted use in the C-3 Zone. The change of zone does not introduce a use that had not existed on the site. The change simply reflects the current and past use of the site.

The rezoning is also substantially consistent with the Master Plan that sought to limit commercial uses at the Marshall's Corner location "to include only the existing commercial establishments." The proposed reduction of the commercial zone at Marshall's Corner was premised on the dominance of single-family residences in the area. That premise does not account for the mixed use of Lot 70. As to that lot, the Master Plan was ambiguous and the rezoning of this lot simply aligned the current use of the lot with the intent of the Master Plan, as well as the Township Land Use Board's interpretation of the planning scheme.

We are also satisfied that the testimony of the Township Planner concerning the intent of the land use element of the Master Plan was permissible. We have already noted that the relevant portion of the Master Plan is ambiguous. In the face of ambiguity, a court may consider extrinsic factors, such as a statute's purpose, legislative history and context. State of N.J., Twp. of Pennsauken v. Schad, 160 N.J. 156, 170-71 (1999). A municipal ordinance does not usually have the same type of legislative history that accompanies a statute. Here, we are satisfied that the Township Planner was supplying context for consideration by the judge rather than a post-enactment statement of intent or post-enactment recollections of municipal legislators, that is of limited legal value and generally disapproved. See Dumont Lowden, Inc. v. Hansen, 38 N.J. 49, 56 (1962); N.J. Coalition of Health Care Prof'ls, Inc. v. N.J. Dep't of Banking & Ins., 323 N.J. Super. 207, 255 (App. Div.), certif. denied, 162 N.J. 485 (1999).

We are also satisfied that Judge Oles's conclusion that the rezoning was supported by a valid municipal purpose is well-founded. Similarly, we are also satisfied that the notice prepared by the municipal clerk, as directed by the April 2, 2004 order, conforms to N.J.S.A. 40:55D-62.1, which provides in pertinent part:

A notice pursuant to this section shall state the date, time and place of the hearing, the nature of the matter to be considered and an identification of the affected zoning districts and proposed boundary changes, if any, by street names, common names or other identifiable landmarks, and by reference to lot and block numbers as shown on the current tax duplicate in the municipal tax assessor's office.

The notice prepared by the clerk states:

Ordinance No. 2004-03 changes the boundary of the C-3 Zone located at the intersection of Pinehurst Road (Ocean County, Route 539) and Lakewood Road (Ocean County Route 528) and presently consisting of Block 77, Lot 72 and Block 43, Lot 62, by rezoning Block 77, Lot 70 (less than one acre) presently located in the R-40 Zone to the C-3 Zone. Said property is located at the area commonly known as Marshall's Corner.

The notice includes block and lot numbers as well as street names and the common name "Marshall's Corner." Although the notice does not include landmarks, that is simply an option and not a requirement of the statute.

Plaintiff also contends that a use variance was required notwithstanding the zoning change because the combination of gasoline service and a convenience store allowed two principal uses on a single lot. Judge Oles held that the Plumsted Zoning Ordinance did not limit the number of principal uses on a single lot. He also found that the ordinance reflects Plumsted's approach over many years to allow multiple permitted uses on a single lot. We agree with this analysis.

Section 15-4.8(a) of the Township Zoning Ordinance provides for thirteen principal uses in the C-3 commercial zone. Unlike the residential zones, the Township Zoning Ordinance does not preclude more than one use on a lot or allow only one principal use on a lot. Rather it allows "any use considered to be of a retail or wholesale nature" in the C-3 zone. Plaintiff's reliance on Sun Co. v. Zoning Board of Adjustment of Avalon, 286 N.J. Super. 440 (App. Div.), certif. denied, 144 N.J. 376 (1996), is misplaced. In that case the ordinance contained a provision prohibiting any business from being considered an accessory use. Here, although the Zoning Ordinance regulated accessory uses, the Plumsted ordinance did not include any reference to accessory uses in any of the commercial zones, including the C-3 zone. Similarly, plaintiff's reference to Financial Services, L.L.C. v. Zoning Board of Adjustment of Little Ferry, 326 N.J. Super. 265 (App. Div. 1999), does not advance its argument. While the Plumsted ordinance contains a provision similar to the Little Ferry ordinance that "all uses not expressly permitted or permitted conditionally in a particular zone are prohibited," here, contrary to the Little Ferry ordinance, both convenience stores and gas stations are expressly permitted in the C-3 zone.

Moreover, Judge Oles's finding that the Township has historically determined that mixed uses are permitted within the zone is supported by the record. The record reflects that counsel for the zoning board interpreted the ordinance to permit mixed or multiple principal uses on a lot. He cited a shopping center as an example of mixed principal uses. The Township Land Use Board's resolution also stated that its ordinance permits two or more permitted uses on a lot. Interestingly, it concluded by recognizing "that throughout New Jersey, if not the country, the combined use of a gasoline service station with convenience store facilities is widespread as a single commercial use of commercial property." A court must afford this interpretation substantial weight. Last Chance Dev. P'ship v. Kean, 119 N.J. 425, 434 (1990); Trust Co. of N.J. v. Planning Bd. of Freehold, 244 N.J. Super. 553, 568-69 (App. Div. 1990). The Township Land Use Board's interpretation also seems to accord with marketing trends and the reaction of other municipalities to this trend. See Cox, New Jersey Zoning and Land Use Administration 10-3 at 254 (2005).

SITE PLAN APPROVAL

Following submission of its site plan application, the Township Land Use Board's engineer opined that WaWa required two variances: for a fence along Success Road due to front yard set-back and for one canopy over the pumps. In opposition to the site plan application, plaintiff submitted evidence from a professional planner who opined that the applicant required between thirty-three and forty-seven variances. In support of its site plan application, WaWa submitted an environmental compliance statement that addressed the effect the development would have on drainage, groundwater, traffic congestion, noise, glare, air quality, and fire and safety hazards. The applicant's site engineer, Joseph Lalka, testified extensively about the plans, including parking for large vehicles. The applicant's project engineer, Michael Redel, testified about operations at a similar WaWa near Great Adventure and the timing of deliveries. Kenneth Fears, a traffic engineer, presented a traffic analysis. Following site plan approval by the County Planning Board, the applicant revised its plans in response to the thirteen conditions imposed by the County Planning Board. Additional testimony was presented by the applicant's site engineer and project engineer in support of this revision.

Plaintiff opposed the application through the presentation of testimony from a planner who expressed concerns about traffic flow, parking, signage, and lighting intensity. He also opined that the applicant required additional variances for the canopy, the air pump and fence, and the stormwater retention basin. Plaintiff's traffic engineer criticized the lighting intensity and traffic calculations, and noise pollution. Plaintiff's environmental consultant cited inadequate drainage and concerns regarding air pollution.

The Township Land Use Board approved the site plan with two variances. The resolution adopted on August 5, 2002, granted two setback variances and preliminary and final major site plan approval. The Land Use Board imposed several conditions on the site plan approval, including a prohibition of delivery of dairy products and fuel between 11 p.m. and 6 a.m.

Judge Oles held that the C-3 zone does not distinguish between principal and accessory uses. He also held that the decision by the Township Land Use Board to defer to the interpretation of the municipal engineer regarding the number and type of variances required by the applicant was reasonable. He also concluded that the decision to grant incidental bulk variances, including variances for the canopy and the location of a fence, were supported by the record. As to the site plan approval, Judge Oles held that the approval was "soundly grounded on the evidence produced during the site plan hearings. In the face of diametrically opposed testimony, the Board had the choice of accepting or rejecting the testimony of witnesses. Where reasonably made, such choices are conclusive on appeal." He found no basis to conclude that the Township Land Use Board acted unreasonably when it accepted the opinions offered by the municipal professional staff and the applicant's experts.

On appeal, plaintiff argues that the site plan approval is infirm because the project required many more than two variances, that a key condition of the approval cannot be met, that approval of the site plan is arbitrary, capricious and unreasonable, and the final revision of the site plan was so extensive that it should have been considered a new notice requiring new notice to all affected property owners.

The appropriate land use board, such as the planning board, the board of adjustment or a combined board, and the zoning officer have the duty to determine all variances required for a particular application. O'Donnell v. Koch, 197 N.J. Super. 134, 143 (App. Div. 1984). A board may rely on reports submitted by its professionals, including the identification of the variances required by a development. See Concerned Citizens of Princeton, Inc. v. Mayor and Council of Princeton, 370 N.J. Super. 429, 463-64 (App. Div.) (planning board had broad discretion to retain professional consultants and rely on their advice), certif. denied, 182 N.J. 139 (2004); Kenwood Assocs. v. Bd. of Adj. of Englewood, 141 N.J. Super. 1, 6 (App. Div. 1976). Such reliance reflects the expertise of the agency charged with interpretation, application and enforcement of its duly developed land use scheme. See WaWa Food Mkt. v. Planning Bd. of Ship Bottom, 227 N.J. Super. 29, 36 (App. Div.) (planning board properly treated application to deviate from on-site parking requirements as a variance from the zoning ordinance rather than a design waiver), certif. denied, 114 N.J. 299 (1988).

We also recognize that a land use board's authority in reviewing an application for site plan approval is limited to a determination that the proposed development conforms with the zoning ordinance and the site plan ordinance. Sartoga v. Borough of W. Paterson, 346 N.J. Super. 569, 581-82 (App. Div.), certif. denied, 172 N.J. 357 (2002) (citing W.L. Goodfellows & Co. of Turnersville, Inc v. Washington Twp. Planning Bd., 345 N.J. Super. 109, 116 (App. Div. 2001)). The denial of site plan approval is a drastic action. Shim v. Washington Twp. Planning Bd., 298 N.J. Super. 395, 411 (App. Div. 1997). Such action is warranted only if the application lacks sufficient specificity or if the applicant fails to address the adequacy of a specific concern, such as stormwater management. Morris County Fair Hous. Council v. Boonton Twp., 228 N.J. Super. 635, 642 (Law Div. 1988). Whether the application conforms to the zoning and site plan ordinances and addresses valid concerns with the requisite specificity ultimately falls within the discretion of the relevant land use board.

Here, we are satisfied that the Township Land Use Board properly granted site plan approval. Plaintiff argues that the Township Land Use Board overlooked as many as forty-seven required variances; yet in its brief it discusses only one, an alleged encroachment of the recharge basin into the fifteen-foot side yard. Such treatment falls far short of the proof required to rebut the presumption that the Township Land Use Board properly exercised its discretion. The record also reflects that WaWa agreed to abide by all conditions imposed by the Township Land Use Board, including restrictions on deliveries between certain hours. Although one of the applicant's witnesses described an automated system that signals the need for additional product, the record provides no basis to find that the applicant's representations that it will comply with all conditions are false or impossible of fulfillment.

As to the alleged over-development on the site, our examination of the record reveals conflicting testimony as to such density issues as parking. The applicant's engineer testified that the site plan provided adequate parking for buses and trucks; plaintiff's engineer disagreed. There was also conflicting evidence concerning the safety of the ingress and egress plan, as well as a dispute regarding the accuracy of the applicant's drainage calculations. A board is free to accept or reject the opinions of professionals presented by the applicant and any opponents to the proposed development. Hawrylo v. Bd. of Adj. of Harding Twp., 249 N.J. Super. 568, 579 (App. Div. 1991). Acceptance of the opinion of the applicant's expert regarding site conditions cannot be considered a mistaken exercise of discretion. In another area, plaintiff asserted that the ordinance required a specific slope for the walls of the retention basin and that the applicant did not meet this provision. Plaintiff, however, does not cite to any portion of the record in support of this contention. Simply stated, there is no indication that the Land Use Board wrongfully rejected uncontroverted testimony or that the applicant's experts or the Board's professionals accepted plaintiff's position. Site plan approval was, therefore, properly granted.

We also reject the contention that the seventh and final revision of the site plan constituted a new application and required new notice. This issue was not raised below. We will not address an issue not raised below unless it concerns the jurisdiction of this court or the trial court or concerns matters of substantial public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). This issue does not meet this standard and we decline to consider it.

COUNTY APPROVAL

Finally, plaintiff argues that Judge Oles erred by affirming the approval granted by the County Planning Board. Judge Oles found that the County Planning Board limited its consideration of the development to its impact on the county roads and county drainage facilities. He noted that plaintiff's traffic expert conceded that "he was not sure" if the application was contrary to the County Master Plan. He concluded that there was no evidence that the County Planning Board acted unreasonably.

Approval by the County Planning Board was required because the development is situated along two county roads. N.J.S.A. 40:27-6.6. Site plan review and approval by the County Planning Board is limited to the impact of the development on county roads and county drainage facilities. Ibid. Plaintiff argues that the County Planning Board did not follow its procedures for review and approval of site plans. We disagree.

Our review of the County Master Plan indicates that inclusion of a bikeway may be desirable, but it is not required by the County Master Plan. The record does not establish that the applicant failed to submit a survey of the site. The imposition of thirteen conditions to afford safe ingress and egress from the site belies plaintiff's contention that the action of the County Planning Board was arbitrary, capricious or unreasonable. The record also does not conclusively demonstrate that tractor-trailers delivering products will park on the county roads. Therefore, we conclude that Judge Oles did not err when he rejected plaintiff's challenge to site plan approval by the County Planning Board.

Affirmed.

 

The Law Division judge consolidated the three actions, then bifurcated the matters and ultimately entered three orders.

(continued)

(continued)

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A-4853-03T5

June 19, 2006