7-ELEVEN, INC., et al. v. PLANNING BOARD OF THE BOROUGH OF ELMWOOD PARK, et al.

Annotate this Case


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5809-05T35809-05T3

A-5918-05T3

7-ELEVEN, INC., a corporation

authorized to and doing business in New

Jersey, and MARKET BOULEVARD, L.L.C.,

a limited liability company authorized

to and doing business in New Jersey,

Plaintiffs-Appellants,

v.

PLANNING BOARD OF THE BOROUGH

OF ELMWOOD PARK, COUNTY OF BERGEN,

NEW JERSEY, a Municipal Agency,

Defendant-Respondent,

and

PETROU FAMILY HOLDINGS, L.L.C.,

PETER PETROU and SOPHIA PETROU,

Intervenors-Respondents.

______________________________________________________


Argued September 19, 2007 - Decided

Before Judges Cuff, Lihotz and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5450-05.

Philip E. San Filippo argued the cause for appellant 7-Eleven, Inc. (Foss, San Filippo & Milne, L.L.C., attorneys; Mr. San Filippo and Dennis L. Bliss, on the joint brief).

Glenn C. Geiger argued the cause for appellant Market Boulevard, L.L.C. (Day Pitney, L.L.C., attorneys; Mr. Geiger and Jennifer Gorga Capone, on the joint brief).

Louis Mangano argued the cause for respondent Planning Board of the Borough of Elmwood Park (Mr. Mangano, attorney, and Nicholas A. Schillaci, III, on the joint brief).

Mitchell W. Abrahams argued the cause for respondent Petrou Family Holdings, L.L.C. (Cole, Schotz, Meisel, Forman & Leonard, P.A., attorneys; Mr. Abrahams and Kristine M. Dress, on the joint brief).

PER CURIAM

Plaintiffs 7-Eleven, Inc. (7-Eleven), the contract buyer, and Market Boulevard, L.L.C. (Market), the contract seller, filed an action in lieu of prerogative writs to set aside and reverse the Resolution of defendant Planning Board of the Borough of Elmwood Park (Board) denying 7-Eleven's application for preliminary and final site plan approval to construct and operate a 7-Eleven convenience store on property owned by Market. Plaintiffs appeal from the June 9, 2006 order affirming the Board's decision. We reverse and remand to the Board for the granting of site plan approval.

I

The subject property is a pie-shaped undersized 14,463 square-foot corner lot located at the intersection of Boulevard and Market Street in Elmwood Park (the site). Boulevard runs north to south and Market Street runs east to west. There are existing crosswalks at all four points of the intersection controlled by pedestrian signals that are timed with the traffic signals.

Presently, there is a four-foot wide access walk into the site and three driveways providing access to the public road system: (1) on Market Street close to the intersection; (2) on Market Street farther from the intersection; and (3) along Boulevard at the northern end of the site.

The site is located in a CG-General Commercial zone (CG Zone), adjacent to a bank and diner, located on property owned by intervenors Petrou Family Holdings, L.L.C., Peter Petrou and Sophia Petrou (Petrous). The proposed 7-Eleven is a permitted use in the CG Zone.

A gas station operated on the site for many years and closed in 1999. During that time, there were no restrictions on the size of trucks permitted to enter or exit the site, and no turning restrictions from the site onto Boulevard or Market Street.

On May 5, 2004, with Market's consent, 7-Eleven submitted an application to the Board for preliminary and final site plan approval and several bulk variances. 7-Eleven sought approval to demolish the gas station and construct and operate a 1774 square-foot franchisee-operated retail 7-Eleven convenience store. The store would be open twenty-four hours a day, seven days a week. The application sought approval of required on-site parking, a designated loading area for delivery vehicles, free-standing building signs, area lighting, access driveways and aisles, and landscaping.

Because Market Street is Bergen County Route 12, 7-Eleven also submitted an application to the Bergen County Planning Board (County Board) for site plan approval for vehicular ingress and egress from the driveway on Market Street located farther from the intersection. The County Board approved the application, subject to certain conditions, to which 7-Eleven agreed.

The proposed building will be located at the northeastern end of the site, with a trash area enclosed by a fence and masonry walls in the rear to the north, and a loading area in the rear to the east. 7-Eleven decided to include a loading area in its application to satisfy its need for weekly truck deliveries and because it determined that a loading area would permit the site to better function by using proposed parking spaces for patrons rather than delivery vehicles. Although a loading area was not specifically required by the Elmwood Park Planning and Land Development Ordinance (the Ordinance), a variance was required here because the proposed loading area would be visible from Market Street.

The loading area is separated from pedestrian patron activity. Delivery trucks will visit the site no more than a few times a week for twenty to thirty minutes at a time. There is no dispute that a variance for the trash enclosure and loading area could be granted without substantially impairing the intent and purpose of the Ordinance and without substantial detriment to the public good.

The proposed 7-Eleven will have twelve off-street parking spaces located in front of the building, by the entrance facing Boulevard, and along the south side of the building facing Market Street. To permit access for deliveries, two of the parking spaces will be in front of the loading area and designated for employees only. Access to the site will be from the driveways on Market Street and Boulevard located farther from the intersection. Thus, a large fifty-five to sixty foot WB50 tractor-trailer truck (WB50 truck), making a delivery to the site will have access through the Market Street driveway from a westbound direction off Market Street, and would circulate through the driveway, across the front of the building, and back up into the loading area. After unloading, the WB50 truck would pull forward and make a left turn from the site onto Market Street. Smaller box and soda delivery trucks will have access to the site from either driveway, and can circulate around the front perimeter into the loading area.

The Board held several public meetings to review the application and determine whether it complied with the Ordinance. As a result of those meetings, the need for all of the variances, except one for the loading area, was eliminated. Thus, 7-Eleven revised the application and site plan to include only a variance for a loading area.

The Board concedes that the final site plan 7-Eleven submitted on September 8, 2004, complied with all of the Ordinance's standards for area, yard and bulk requirements for permitted uses in the CG Zone. Thus, site plan approval was warranted. However, the Board was concerned about: (1) problems the police had with a 7-Eleven located on Broadway (Broadway 7-Eleven), such as littering, loitering, narcotics and other criminal activity; (2) the Board's prior experience with the Broadway 7-Eleven's failure to abide by the terms of its site plan approval and enforce its franchise agreement; (3) possible increased cross-street pedestrian traffic, including danger to young children crossing the street to get to the 7-Eleven; (4) the hazard that vehicles exiting the site and making either a left turn onto Boulevard south or a right turn onto Boulevard north will cause to vehicles entering and leaving the bank and diner; and (5) daytime deliveries by WB50 trucks.

The Board's concerns arose, in part, from testimony by public objectors, such as the Chief of Police, who made it clear they did not want a 7-Eleven at the site. The Chief testified, "When you put a [7-Eleven] in an area it is no longer the same area. The town will change with this." The Chief also testified about the Broadway 7-Eleven, which he described as "a nightmare for [the police department]" because "[i]t became a hang out for kids" who played video games and "urinate[d] on lawns." The Chief also voiced concern about increased traffic volume generated by the proposed 7-Eleven in what he described as a "very, very, very busy and dangerous intersection and there [are] a lot of pedestrians and a lot of kids there." He stated the proposed 7-Eleven would attract children who would come from a water park and recreation center across the street. He also stated traffic at the intersection was already backed up during busy times of the day due to a high volume of traffic from the bank and diner, and the proposed 7-Eleven would add to that problem. The Chief concluded:

I don't know. It just doesn't seem like -- I'm just surprised when I heard that [7-Eleven] wants to come there. The only good thing, from a business point of view, they can make money there because there [are] a lot of people going by but it doesn't seem like that's the right place for a [7-Eleven], not that type of heavy business store. Personally, I wish the council would turn around and buy that piece of property and put a memorial up because that's what should be there.

Regarding traffic issues, 7-Eleven produced expert testimony from John Harter, a licensed professional engineer specializing in traffic engineering. Based on Harter's studies and research, he concluded: (1) the proposed 7-Eleven will not produce a significant increase in traffic at the intersection; (2) the two driveways are adequately sized to permit safe ingress to and egress from the site, with minimal delays at the driveways; (3) a WB50 truck would not create a dangerous on-site condition; (4) a box or soda truck could access the loading area without impacting any of the parking spaces; (5) the parking spaces are appropriately sized and meet the required standards; and (6) there would be sufficient queuing on the site for the minimal increase in traffic. Harter also opined as follows:

[T]he site would be a minimal new trip generator to the area. The site would generate pass by traffic so [there will] not [be] a significant impact [on] the traffic conditions. It is a good corner location for a convenience use because it has multiple [access] points that improve circulation on site, as opposed to a mid block lot that would not have that option.

Regarding the danger to children and pedestrians, Harter opined:

I think the children issue is being blown out of proportion. There's a [S]ubway that's located across the street where there's not a crosswalk. Pedestrians crossing from the playground or, sorry, the recreation area to the [S]ubway have no crosswalk as they do going to the 7-Eleven. There's a pizza place in the [s]outheast corner. . . . [T]here is a candy shop[] as well further to the south of that.

Those are all potential generators of children activity. It occurs now.

Looking at my accident report that I went through for five years plus, I only saw . . . one accident involving a pedestrian and two with a bicyclist, and one was intoxicated.

So clearly there's not an issue, a problem with pedestrian accidents at this location from what I reviewed. [There] are generators of children and pedestrian uses [already] in the area.

7-Eleven also produced evidence it could control deliveries by WB50 trucks because it plans the routing for deliveries.

The Board's traffic engineer, Michael Morgan, did not conduct any studies. However, regarding deliveries by WB50 trucks, upon which the Board and trial judge relied, Morgan said:

It is not an ideal situation I think, in my opinion. I think it is mitigated by the fact that they are claiming it can happen at off hours of the night, but it only takes two to tango. And [i]f at that off hour of the night someone is sitting in a parking space that can't be avoided or is sitting at the end of the driveway waiting to get out, or is coming in the right lane of Market and doesn't realize that the truck is actually swinging out to the left before he turns to the right.

You just need one situation like that and it becomes a problem, in my opinion.

Petrou's traffic expert, Hal Simoff, also did not conduct any studies. Regarding deliveries, he speculated that the proposed 7-Eleven would use trucks larger than WB50 trucks. He also testified about his observations of problems at the Broadway 7-Eleven and other 7-Elevens.

7-Eleven produced evidence that the franchisee who will operate the proposed 7-Eleven is not the same as the franchisee operating the Broadway 7-Eleven. 7-Eleven also addressed each of the Board's concerns by making stipulations on the record, revising and adding notes and clarifications to the site plan, and agreeing to reasonable conditions. To avoid littering problems that allegedly exist at the Broadway 7-Eleven, 7-Eleven agreed to clean-up debris and litter on the site and adjoining properties; sweep the parking lot and remove trash and debris daily; survey the site every three hours to keep it free of litter; and check daily for graffiti and arrange for its removal.

Regarding safety, 7-Eleven agreed to secure the site against crime, loitering and littering; install bright and adequate perimeter lighting; install exterior surveillance cameras with a three-hundred-and-sixty-degree view that would meet the satisfaction of the police department; maintain security tapes for thirty days or longer; install concrete sidewalks, landscaping and decorative street lights; install dry wells and seepage pits for the roof leaders to avoid any discharge of water into the street system; install signs advising customers that littering, loitering and noise violations would be prosecuted; and train employees in loitering prevention and surveillance activities. To prevent the proposed 7-Eleven from becoming a "hang out," 7-Eleven agreed not to install video games or outdoor pay phones.

Regarding vehicular traffic and pedestrian safety, 7-Eleven designed the site to permit pedestrians to safely cross the parking lot to access the store and eliminated the driveway on Market Street close to the intersection, which will be replaced with full length sidewalks and curbs. 7-Eleven also agreed to install streetscape improvements and lighting; restrict the hours of deliveries by WB50 trucks to between 10:00 p.m. and 3:00 a.m.; limit the size of delivery trucks to fifty-five feet; restrict WB50 trucks to the Market Street driveway only in a westbound approach; require all delivery trucks to park in the loading area; restrict all routing of delivery trucks to avoid any vehicle having to back into a driveway apron area; maintain nine-foot clearance for trees so there would be adequate visibility for both pedestrians and motorists utilizing the site and adjoining properties; restrict left turns into the site from Market Street traveling eastbound and install "no left turn" signs; and finally, install "no parking" signs and striping in the outer perimeter on-site paved areas.

Although 7-Eleven did not initially agree to the Board's proposal to prohibit left turns from the site onto Boulevard southbound, it agreed to return to the Board for a hearing on possible restrictions for the Boulevard driveway if such turns resulted in increased accidents by five or more reportable accidents per year.

At the final hearing on April 13, 2005, the Board voted to deny the application. On June 8, 2005, the Board adopted a Resolution denying the application, based in part, on its finding of unsafe on-site pedestrian and vehicular circulation, caused by truck deliveries. 7-Eleven appealed.

The trial judge affirmed the Board's decision, finding the record contained "substantial credible evidence adequate to support the Board's denial of the Application[,]" and the Board applied the correct legal standards. Although noting the Board was aware the application was for a permitted use, the judge determined, "[t]he Board was legally entitled, and indeed required, to consider the safety and efficiency of the proposed ingress, egress, circulation, parking, and loading [proposed in] the Application." The judge concluded, "[t]he Board appropriately considered evidence of on-site limitations that presented significant difficulty with safe and efficient ingress, egress, and on-site circulation of the proposed development." The judge based his findings on various testimony before the Board, including the testimony of Morgan and Simoff.

The judge also determined the Board did not deny the application because of off-site traffic conditions, but because of the perceived difficulty of providing safe ingress to and egress from the site and on-site safety problems. The judge stated as follows:

while it is true that the governing body is the proper entity to prohibit or limit uses generating traffic into an already congested area, and this is not the domain of a planning board, the focus of the Board's concerns with the Application was with on-site specific safety issues, and it was clearly the Board's intent here to address these concerns, and not to prohibit a permitted use. As the Court has noted, there was substantial credible evidence before the Board upon which it could have concluded that the ingress, egress, and on-site safety problems with the Application warranted its denial.

II

Plaintiffs contend the Board lacked authority to deny the application because the site plan complied with all Ordinance standards. Plaintiffs also contend that because the Ordinance contains no specific standards relating to unsafe and inefficient on-site vehicular and pedestrian circulation, ingress, egress, and parking, as required by N.J.S.A. 40:55D-41b, the Board acted arbitrarily, capriciously and unreasonably in denying the application based upon these factors. We agree with these contentions.

In reviewing a planning board's decision, we use the same standard used by the trial court. Pullen v. Twp. of S. Plainfield Planning Bd., 291 N.J. Super. 1, 6 (App. Div. 1996) (citing Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965)); Nunziato v. Planning Bd. of Borough of Edgewater, 225 N.J. Super. 124, 133 (App. Div. 1988). We give deference to a planning board's broad discretion and reverse only if its action was "arbitrary, capricious or unreasonable." Kramer, supra, 45 N.J. at 296. However, we will give deference to a planning board only if an ordinance confers discretion on it, PRB Enters., Inc. v. S. Brunswick Planning Bd., 105 N.J. 1, 7 (1987), and will not disturb a valid exercise of discretion where there is substantial credible evidence to support it. Pullen, supra, 291 N.J. Super. at 7 (citing Rowatti v. Gonchar, 101 N.J. 46, 52 (1985)).

"A planning board's role in considering a site plan application is circumscribed. The object of the site plan review is to assure compliance with the standards under the municipality's site plan and land use ordinances." Shim v. Washington Twp. Planning Bd., 298 N.J. Super. 395, 411 (App. Div. 1997). "Thus, ordinarily, the denial of a site plan application would be a 'drastic action' when the pertinent ordinance standards are met." Ibid. (citing William M. Cox, New Jersey Zoning and Land Use Administration, 15-10 at 289 (15th ed. 1996)); Dunkin' Donuts of N.J., Inc. v Twp. of N. Brunswick Planning Bd., 193 N.J. Super. 513, 515 (App. Div. 1984); Lionel's Appliance Ctr., Inc. v. Citta, 156 N.J. Super. 257, 269 (Law Div. 1978).

For site plan applications, as a prerequisite to a planning board's valid exercise of its discretionary powers, the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, requires a municipality to establish, by ordinance, definite and clear standards for site plan review and approval. N.J.S.A. 40:55D-41; Pizzo Mantin Group v. Twp. of Randolph, 137 N.J. 216, 230 (1994). If the applicant meets those standards, the planning board lacks the authority to deny approval of the site plan. N.J.S.A. 40:55D-50a; PRB Enters., supra, 105 N.J. at 7 (quoting Lionel's Appliance, supra, 156 N.J. Super. at 264); Dunkin' Donuts, supra, 193 N.J. Super. at 515 (citing Lionel's Appliance, supra, 156 N.J. Super. at 268-69).

A site plan ordinance must include standards for "[s]afe and efficient vehicular and pedestrian circulation, parking and loading[.]" N.J.S.A. 40:55D-41b. "The ordinance may properly include on-site and off-site traffic considerations among the criteria to be weighed by the planning board[,]" but "the [MLUL] specifically requires the establishment of standards exhibiting 'sufficient certainty and definiteness[.]'" PRB Enters., supra, 105 N.J. at 8 (citing Exxon Co., U.S.A. v. Twp. of Livingston, 199 N.J. Super. 470, 477 (App. Div. 1985)). A general purpose statement in a site plan ordinance does not ordinarily meet this requirement or grant a planning board the authority to deny site plan approval. Id. at 5-6, 9; Pizzo Mantin Group, supra, 137 N.J. at 229. The site plan ordinance must "provide clear standards to guide both property owners and planning boards." Pizzo Mantin Group, supra, 137 N.J. at 230. With these standards in mind, we review plaintiffs' contentions.

The Board denied the application upon finding, in part, that deliveries by WB50 trucks would create unsafe and inefficient ingress and egress, and on-site safety hazards for pedestrians and other vehicles. However, the Ordinance contains no standards relating to these findings, and no standards for or restrictions on the size or type of trucks permitted onto the site or exiting the site onto Market Street and Boulevard. The Ordinance merely contains a general purpose statement reciting that:

The purpose of this chapter is to establish a pattern for the use of land and buildings based on the adopted Land Use Plan Element of the Master Plan and enacted in order to promote and protect the public health, safety, morals, comfort, convenience and the general welfare of the people. This chapter is intended to regulate the use of land within zoning districts, secure safety from fire, panic, and other dangers, provide adequate light and air, promote orderly development, avoid undue concentration of population, prevent the overcrowding of land or buildings, establish standards of development, limit congestion in the street, prohibit incompatible uses, regulate the alteration of existing buildings, protect against hazards, conserve the value of land, preserve open space and natural features, and encourage the inclusion of aesthetics, amenities of living, and a balance of public services.

[Elmwood Park, N.J. Ordinance ch. XXXIV, art. 1, 34-1.2 (citing 1969 Code, 88-2, Ord. No. 1978-6).]

The Ordinance also contains another general purpose statement reciting that the Ordinance's standards

shall be for the general purposes of enhancing the neighborhood; providing adequate access to off-street parking and loading facilities for employees, visitors and residents; providing buffering techniques for safety and/or aesthetic purposes; preventing uses which violate applicable State and Federal safety and environmental regulations; preserving floodways and flood hazard areas; and requiring that all raw materials, fuel, goods in process, finished goods, machinery and equipment shall be housed and screened from residential uses.

[Id. at 34-59.10.]

Section 34-59.9b is the only provision of the Ordinance that addresses vehicular circulation. However, this provision merely requires a site plan to:

show access streets and street names; acceleration/deceleration lanes; curbs, aisles and lanes; access points to public streets; sight triangles; traffic channelization; easements; fire lanes; driveways; number and location of parking and loading spaces, loading berths or docks; pedestrian walks; bikeways and all related facilities for the movement and storage of goods, vehicles and persons on the tract, and lights, lighting standards, signs and driveways within the tract and within one hundred (100) feet of the tract. Sidewalks shall be shown from each entrance/exit along expected paths of pedestrian travel such as, but not limited to, access to parking lots, driveways, other buildings on the tract, and across common yard areas between buildings. Plans shall be accompanied by cross sections of new streets, aisles, lanes, driveways, bikeways and sidewalks. Any expansion plans for the proposed use shall show feasible parking and loading expansion plans to accompany building and expansion.

[Id. at 34-59.9.]

7-Eleven's site plan complies with this provision, as well as all other provisions in the Ordinance, including those for off-street parking and loading (Section 34-44.3d), plan preparation (Section 34-59.8), building and use plan information (Section 34-59.9a), and circulation plan information (Section 34-59.9b). There is no dispute about this.

The general purpose statements do not set forth any standards by which to measure safe and efficient ingress and egress, on-site vehicular and pedestrian safety, or any standards for, or restrictions on, the size or types of trucks permitted onto the site or exiting the site onto Market Street and Boulevard. The lack of such standards compels the conclusion the Ordinance does not comply with the requirements of the MLUL, and the Board lacked authority to deny site plan approval for 7-Eleven's permitted use of the site based on unarticulated standards. PRB Enters., supra, 105 N.J. at 9. Because 7-Eleven's site plan complied with all Ordinance requirements, the Board's denial of the application was arbitrary, capricious and unreasonable. Pizzo Mantin Group, supra, 137 N.J. at 229.

III

Plaintiffs next contend the Board's decision was arbitrary, capricious and unreasonable because it was based upon off-site conditions, the Board's negative experience with the Broadway 7-Eleven, and unsubstantiated testimony and observations of non-experts. Plaintiffs also contend the Board ignored substantial, credible evidence in the record supporting approval of the site plan. We agree.

We have carefully reviewed the record and disagree with the trial judge that the Board did not deny the application because of off-site conditions. The Resolution contains nine findings of fact relevant to the Board's denial of the application. Of those nine, the following seven relate specifically to off-site conditions:

11. The intersection of Boulevard and Market Street is the major intersection in Elmwood Park. It is heavily trafficked. Boulevard runs north and south from Route 4 (Broadway) past Route 46. It is the center of the Borough. Market Street runs east and west from the Passaic River through Saddle Brook into Hackensack.

12. Several years ago this Board acted on an Application for [the Broadway 7-Eleven] - Application number 87-21. This Board accepted as true and reliable testimony from Southland Corporation, the apparent predecessor to 7-Eleven, Inc., that the property and surrounding area would be regularly policed by its employee notwithstanding that the area regarding this need might be beyond its property line. Those representations proved untrue through the years without improvement until the within Application made it clear that the Board was reluctant to accept the promises of the Applicant.

. . . .

14. The Borough's Chief and Deputy Chief of Police submitted their concerns in writing and with oral testimony. The Chief testified that the intersection in question is one of the busiest locations in the Borough. It is located across the street from a large municipal park which hosts youngsters at play; organized sports, a summer water park, a senior citizen center and a recreation center. Accident figures, he maintained[,] prove the host of problems with this location and the increased cross street pedestrian traffic, which he opined, would occur if the 7-Eleven were permitted to locate at this site.

15. The Chief related that the Broadway 7-Eleven has had repeated problems with late hour loitering, narcotics, trafficking complaints, noise, littering, assaults and related criminal activity that the franchise's training has had no effect on.

The Board is also aware that St. Leo's School is only a short distance from the subject site.

16. The site is adjacent to the properties of the Fleet Bank and Elmwood Park [Diner]. Vehicular traffic generated by the proposed site would complicate entering and leaving these properties. Deliveries by 55' long trucks attempting to negotiate into and out of the site would add to the on-site hazards to pedestrians and other vehicles.

17. Of particular concern to the Board was the hazard of vehicles exiting the property and making either a left onto Boulevard south or a right onto Boulevard north when other vehicles, including trucks, were exiting the almost adjacent driveway apron of the Fleet Bank parking lot. The Board's expert proposed prohibiting left turns out of the site onto Boulevard, a condition opposed by the Applicant.

. . . .

19. The testimony has adequately proven that the Applicant's advertising is targeted to young children who will not appreciate the danger on these sidewalks. Given the large number of children who will be likely to cross Boulevard to reach the store, the Board [would be remiss] to permit such conditions. The Applicant has declined to use smaller delivery trucks.

These findings are improperly based on off-site conditions that do not in any way relate to or create unsafe and inefficient on-site ingress, egress, or vehicular and pedestrian safety hazards. These findings focus entirely on traffic on Market Street, Broadway, and the adjoining bank and diner; the anticipated detrimental impact on off-site traffic congestion; and the safety of pedestrians crossing the street. Denial of a site plan for a permitted use cannot be based on such off-site conditions. See Dunkin' Donuts, supra, 193 N.J. Super. at 514 (a planning board cannot deny approval of a site plan "based solely upon the anticipated detrimental impact of the proposed use on traffic congestions and safety"); Lionel's Appliance, supra, 156 N.J. Super. at 266, 269 (a planning board cannot deny an application for a permitted use otherwise in compliance with the zoning ordinance based on off-site conditions, such as the intensity of vehicular traffic on adjoining roadways or other parts of the municipality). Thus, the Board's denial of the application based on these off-site conditions was arbitrary, capricious and unreasonable.

In addition, the record lacks substantial credible evidence that the proposed 7-Eleven will significantly affect any off-site conditions. Even if such evidence existed, the Board lacked the authority to deny the application for this reason. The Board's authority in such instance is limited to requiring 7-Eleven to contribute to the costs associated with ameliorating the conditions, such as "the widening of streets as a result of the additional traffic created by the [proposed use]." Lionel's Appliance, supra, 156 N.J. Super. at 268.

The Board's findings are also improperly based on the nature and appropriateness of the use of the site as a 7-Eleven, and the Board's view that the proposed 7-Eleven will have a negative effect on the community, including increased crime and traffic. See Wawa Food Mkt. v. Planning Bd. of Borough of Ship Bottom, 227 N.J. Super. 29, 40 (App. Div.) (a planning board cannot deny an application for a permitted use based upon the overall nature of the proposed use), certif. denied, 114 N.J. 299 (1988). Such a determination exceeds the Board's authority, which is limited to determining whether the site plan complies with the Ordinance, which it does. Any detriment to the public good can only be "remedied by an amendment to the zoning ordinance rather than the denial of the site plan." Ibid. (citing PRB Enters., supra, 105 N.J. at 9).

Finally, these findings are not based on substantial credible evidence, but stem from the unsubstantiated observations and opinions of non-experts, including certain Board members and the public, and the Board's negative experience with the Broadway 7-Eleven. The findings ignore the substantial credible evidence that the Broadway 7-Eleven has no ownership or management connection to the proposed 7-Eleven and these proceedings, and the numerous stipulations made by 7-Eleven and 7-Eleven's policies and procedures, which will prevent the type of alleged problems existing at the Broadway 7-Eleven.

The Board also denied site plan approval based, in relevant part, on the following findings of fact:

13. Further, the Applicant also represented that the typical delivery would be late night in a 40' truck one time weekly for not more than one hour - 20 foot to 30 foot trucks would be more common. Testimony and photographs in the instant proceeding of that site has shown that these representations could not be relied upon. They were simply untrue and remain untrue.

. . . .

18. The Applicant has represented that deliveries to it would be late night deliveries, just as it had represented for the Broadway site, where the representation has proven to be untrue. The queuing on-site and into Boulevard which can be caused by tractor-trailer day-time deliveries (which still take place at the Broadway location) creates hazardous conditions on-site and at the entrance and exit areas adjacent to the site. The Board believes that the trucks currently used by the Applicant are too big for this site. They will have to cut across handicapped spaces and parking spaces in order to do on-site maneuvering to get in and out of the loading area. Autos will in such cases, be forced onto sidewalks.

Generally, a planning board can only deny a site plan application for a permitted use if the ingress to and egress from the site proposed by the plan create "an unsafe and inefficient vehicular circulation on the site." Lionel's Appliance, supra, 156 N.J. Super. at 268-69; Dunkin' Donuts, supra, 193 N.J. Super. at 515. Here, the Board determined that deliveries by WB50 trucks will negatively affect ingress, egress and on-site safety. However, this determination is improperly based on the Board's negative experience with the Broadway 7-Eleven, and the unsubstantiated testimony of non-experts, who do not want a 7-Eleven on the site. Simply put, because of its negative experience with the Broadway 7-Eleven, the Board did not believe 7-Eleven would abide by the terms of its site plan approval, and rejected the following extensive credible evidence: the site could accommodate WB50 trucks; 7-Eleven can control the timing and routing of deliveries by all trucks to ensure they enter and leave the site in the least disruptive manner; deliveries by WB50 trucks would be limited to late night/early morning hours; truck deliveries would not create a dangerous on-site condition; and 7-Eleven would consider a left turn restriction onto Boulevard if such turns resulted in increased accidents by five or more reportable accidents per year.

Based upon the record, we conclude the Board's denial of the application for site plan approval for the permitted use of the site as a 7-Eleven lacked support by substantial credible evidence, and was arbitrary, capricious and unreasonable.


Reversed and remanded to the Board for the grant of site plan approval with appropriate conditions as permitted by law.

We consolidated plaintiffs' appeals by order of October 17, 2006.

7-Eleven eliminated this driveway from its site plan application.

There will be no gasoline sold at the site.

The Board's findings are more fully discussed in Point III.

(continued)

(continued)

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A-5809-05T3

February 28, 2008