AHOLD CORPORATION, et al. v. BOARD OF ADJUSTMENT TOWNSHIP OF SPRINGFIELD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3965-03T1

A-4021-03T1

A-4038-03T1

AHOLD CORPORATION/ARC SPRINGFIELD LLC/

AHOLD REAL ESTATE CORPORATION/STOP &

SHOP SUPERMARKET COMPANY,

Plaintiffs-Respondents,

v.

BOARD OF ADJUSTMENT OF THE TOWNSHIP

OF SPRINGFIELD,

Defendant,

and

VILLAGE SUPER MARKET, INC., a

corporation of the State of New Jersey,

SUMAS REALTY CORPORATION, a corporation

of the State of New Jersey, COLONIAL

ASSOCIATION OF SPRINGFIELD, and TOWNSHIP

OF MILLBURN,

Defendants-Appellants,

________________________________________

TOWNSHIP of SPRINGFIELD,

Intervenor-Appellant.

__________________________________________________________

 

Argued October 3, 2005 - Decided

Before Judges Coburn, Lisa and Reisner

On appeal from the Superior Court of New Jersey,

Law Division, Union County, L-4971-02.

Stephen E. Barcan argued the cause for appellant

Village Super Market, Inc. and Sumas Realty

Corporation (Wilentz, Goldman & Spitzer, attorneys; Mr. Barcan, of counsel; Mr. Barcan and Donna M. Jennings on the brief).

James J. Delia argued the cause for appellant

Township of Millburn (Wells, Jaworski, Liebman &

Paton, attorneys; Mr. Delia, on the brief).

James A. Kassis argued the cause for Colonial

Association of Springfield (Schenck, Price, Smith

& King, attorneys; Gary F. Werner, of counsel; Mr.

Werner and Eric A. Inglis, on the brief).

James V. Segreto argued the cause for respondents

Stop & Shop (Sergeto Law Offices, attorneys; Mr.

Segreto, on the brief).

Bruce H. Bergen argued the cause for intervenor-

appellant Township of Springfield (Krevsky, Silber,

Brown & Bergen, attorneys; Mr. Bergen, on the brief).

PER CURIAM

Stop & Shop Supermarket Company and related entities ("S & S"), applied to the Springfield Board of Adjustment (the "Board") for site plan approval for a retail supermarket. After lengthy hearings, the Board, by a vote of five to two, denied the application. S & S filed this action in lieu of prerogative writs, alleging that the Board's action was unreasonable. The trial judge agreed with S & S, "set aside and invalidated" the Board's decision, and "approved [the site plan] with the 25 conditions set forth in the Resolution" plus an additional condition which he drafted. The Colonial Association of Springfield, the Township of Millburn, and Village Super Market, Inc., and a related entity, filed separate appeals, and we permitted the Township of Springfield to intervene as an appellant. The Board did not appeal.

The case came before the Board on remand from the Supreme Court, which held that S & S was entitled to the benefit of a use variance granted to the previous owner of the property, Saks Fifth Avenue. Stop & Shop Supermarket Co. v. Bd. of Adjustment of Springfield, 162 N.J. 418, 434 (2000). The Court noted that

the municipality is not powerless to address the specific problems that may be presented by S & S's proposed use of the property. Pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129, municipal planning boards possess a broad reserve of authority to review and approve site plan applications, N.J.S.A. 40:55D-50, and to insure compliance with the provisions of the local site plan ordinance. See N.J.S.A. 40:55D-41. Such review typically encompasses such issues as location of structures, vehicular and pedestrian circulation, parking, loading and unloading, lighting, screening and landscaping. We anticipate that the Springfield Planning Board, informed by the concerns of residents in the vicinity of the property, will impose appropriate conditions and restrictions on S & S's proposed development and use of the property in order to minimize any intrusion on or inconvenience to the continued use and enjoyment of those neighboring residential properties.

[Id. at 438-39.]

Although the Court contemplated that the Planning Board would conduct the further hearings, no one contends that proceeding before the Board of Adjustment was inappropriate. Ultimately, the Board rejected S & S's plan because of the design of the truck unloading area. It found that there were not enough loading docks, which would result in a backup of trucks onto the adjoining streets, thereby inconveniencing the neighboring residential property owners. It also found that the loading area was too small to be safe.

When the hearings were concluded, the chairmen stated twenty-five conditions that S & S's site plan should at the least be subject to, if approved. We take specific note of Condition 13, which is relevant to the trial judge's inclusion of an additional condition, and reads as follows:

No trucks or trailers will be allowed to park in any area other than in designated parking and loading areas. The plans should illustrate no parking signs and markings along the ring road and other drive aisles and fire lanes, and any trucks parked in those locations will be subject to tickets and fines. No dropped trailers will be allowed anywhere on the site except at any of the four loading docks. . . . A signage plan should also be included. . . .

All of the conditions were accepted by S & S, and were listed in the resolution, which, in relevant part, reads as follows:

Whereas, the experts testifying on behalf of the objectors, and in particular . . . John H. Rea [a traffic engineer] and Charles Amorisi [an expert in supermarket transportation and merchandise deliveries], testified that the truck delivery design of the site plan, including the number of docks and the nature of the design, was faulty and inadequate for the needs of the supermarket, and would create a safety problem and would create truck back-ups which will have a direct significant impact on the access street, Millburn Avenue, and adjoining streets in the immediate neighborhood; and

Whereas, the testimony of Melissa Mintz, who testified regarding the operations of Stop & Shop, including Stop & Shop's use or non-use of "dropped trailers," was directly contradicted by the testimony of witnesses presented by the objectors; and

Whereas, the Board requested, received and considered the input of the Board's experts, Robert A. Michael, the Township Planner, and Robert C. Kirkpatrick, the Township Engineer [who, we note signed a joint letter stating that the loading area "meets our ordinance and does not create any unusual or extraordinary hazard in its use."]; and

. . .

Whereas, . . . each member of the Board expressed his/her view and opinion regarding the matter, and numerous Board members questioned the credibility of the testimony of Melissa Mintz, the Real Estate Development Manager for Stop & Shop, and especially her testimony regarding Stop & Shop's use of "dropped trailers" and the adequacy of the truck loading/unloading area, and numerous Board members stated that in considering the conflicting testimony of the experts presented by the Applicant and those presented by the objectors with regard to the safety of the design of the truck unloading area and its being able/not able to properly and safely accommodate the trucks delivering merchandise to the store, they found the testimony of the objectors' experts more credible and were very much concerned about the safety problems and direct significant impact the faulty and inadequate design would have on the access street, Millburn Avenue, and adjoining streets in the immediate neighborhood;

. . .

NOW THEREFORE, the following findings of fact are made:

1. The above recitals are repeated as if fully set forth at length and the testimony of the experts presented by the objectors, and in particular John H. Rea, traffic engineer, and Charles Amorosi, supermarket operations expert with regard to transportation and merchandise delivery, and the testimony of objectors' witness William Fous, are found as facts, and the testimony of Applicant's witness Melissa Mintz is specifically found to be not credible, and it is found that the design of the truck unloading area of the site plan, as amended, is faulty, and provides for an inadequate number of loading docks under the specific circumstances of the design and needs of the supermarket, and will result in a serious back-up of delivery trucks onto the access street, Millburn Avenue, and its adjoining streets in the immediate neighborhood, and will result in a dangerous condition and a significant negative impact on said access street and its adjoining streets in the immediate neighborhood;

2. Because of the dangerous situation created by the faulty design of the truck unloading area and the inadequate number of loading docks as set forth above, the application cannot be granted without causing substantial detriment to the public good and without substantially impairing the intent or spirit of the land use ordinances of the Township.

3. That in exercising its reservoir of authority to review and approve this site plan application so as to address the specific problems presented by Stop & Shop's use of the property, including, but not limited to vehicular circulation, and loading and unloading, the Board finds that the faulty design of the truck delivery and unloading area, and the inadequate number of loading docks under the specific circumstances of the design and the needs of the supermarket will result in a truck back-up and safety problem which will significantly result in an intrusion on and inconvenience to the continued use and enjoyment of the neighboring residential properties.

We need not describe all the testimony since the Board's focus, and that of the appellants, is limited to the design of the loading area, and more specifically, the number of loading docks, safety in the loading area, and the impact of the design on adjoining streets. As did the Board, appellants rely primarily on the testimony of John H. Rea, their traffic engineer, and Charles Amorisi, who testified as an expert in supermarket transportation and merchandise delivery.

Appellants' entire description of Rea's testimony on the design under consideration, which had been modified as a result of concerns expressed in earlier hearings, is this:

At the April 16, 2002 hearing, John Rea testified that under the new design trucks could line up in the access road and perhaps eventually extend to within Millburn Avenue itself. His conclusion was that Stop & Shop should:

. . . redesign this site plan so that it works. It may involve making the building smaller, adding two more loading docks, cutting into an area where the building is here, expanding the vendor truck area.

And,

The bottom line is . . . the loading area for a number of reasons is inadequate and it will result . . . in those problems I just expressed to you. Trucks spewing out on Millburn Avenue, going around the block to try to get back into the loading area. It is definitely going to happen. The question is to what extent is it going to happen, not whether it is going to happen or not. That is going to create a safety problem, in my opinion.

He further stated:

. . . there's no place for [the trucks] to go if the docks are full, and that's what creates the problem. It's a dead end aisle. They're just going to have to circulate and re-circulate in a very tight area that just isn't big enough for all of that activity to occur.

. . . Again, the problem does not involve off-tract congestion - "it's an on-site circulation problem, safety problem which . . . the Board has jurisdiction over regardless of [zoning compliance]." [Emphasis Added].

Appellants' entire description of Amorisi's testimony on the new design is this:

He testified that he had inspected Stop & Shop stores built since 1992, the date previously identified by Melissa Mintz as when a new prototype was adopted by Stop & Shop requiring only four loading docks and where there would not be dropped trailers.

He again confirmed that all supermarkets use drops. He visited 15 to 20 post-1992 Stop & Shop stores; there were one or two dropped trailers at five of them. Photographs of those stores were marked into evidence.

Again, Pepsi and Coke deliver directly to the store and normally drop their trailer. The same thing happens with paper products. These drops mean Stop & Shop is "not going to have [even] four [docks] to handle the trucks . . ."

Mr. Amorosi added that the situation here was "exacerbated" by the enclosure wall:

The fact that it is now a closed-in area gives you very little room to maneuver. There is no place to go. . . . so now you have a crowded condition and the potential for accidents is quite high.

Finally, Mr. Amorosi visited an A&P store in Woodbridge which Mr. Ney had earlier identified as an example of a supermarket with a well functioning four dock loading area. Photographs Mr. Amorosi took were marked into evidence; they showed a tractor trailer waiting in the parking lot and "an array of step vans all queued up waiting to come in."

Our review of the record as to both witnesses reveals nothing else of substance bearing on the issues. Appellants also rely on the testimony of an investigator who found dropped trailers at a few

S & S stores.

Cabot Hudson, S & S's engineer, testified that the loading area provided sufficient space for the tractor trailers to turn, and Melissa Mintz, S & S's Real Estate Development Manager, testified that the four loading docks would be sufficient. She added that the area is adequate to accommodate S & S's schedule for tractor trailers, which S & S controls, and for vendor trucks. She noted that S & S expected to have no more than two tractor trailers present at the same time, and that the daily number of vendor trucks would be in the low twenties. She also testified that S & S does not customarily use drop trailers, although they might do so on occasion or during a peak holiday season. S & S's traffic engineer, Henry Ney, testified that there is adequate room in the loading area for vehicles to enter and then back into the loading docks, and that there is adequate room to accommodate the daily delivery trucks.

S & S's evidence on the adequacy of the loading area, and its compliance with the local ordinances, was fully supported in all respects by the testimony of the Township Planner and the Township Engineer, who summarized their opinion in this way:

I was asked to look at this configuration and advise the Board. It was changed to make it better, at least twice, and in the opinion of the letter that Bob Michaels and I wrote the last time, we are of the opinion that the current configuration is consistent with the testimony, consistent with the Township's ordinances, and in my professional opinion, at least, does not present a safety hazard.

Our resolution of the case is governed by the following legal principles. When a local land use board considers the validity of a site plan, its "authority . . . is limited to determining whether [the] plan conforms with the zoning ordinance and the applicable provisions of the site plan . . . ordinance." Sartoga v. Borough W. Paterson, 346 N.J. Super. 569, 582 (App. Div.), certif. denied, 172 N.J. 357 (2002). A possible exception to that rule is the presence of unusual or extraordinary circumstances. Cox, New Jersey Zoning and Land Use Administration, 15-10, at 363 (2005). The standards contained within the ordinance must be clear and express because "the absence of express standards may invite inconsistency, encourage controversy, and lead to arbitrary action by the planning authority." Pizzo Mantin Group v. Twp. of Randolph, 137 N.J. 216, 229 (1994). The local board "has no authority to deny site plan approval based on its view that a use permitted under the zoning ordinance . . . is inconsistent with principles of sound zoning." Sartoga, supra, 346 N.J. Super. at 582-83. And a site plan that accords with the zoning ordinance may not be disapproved because of off-site conditions. Shim v. Washington Twp. Planning Bd., 298 N.J. Super. 395, 411 (App. Div. 1997). The board may not deny an application based on expert testimony that is not supported by the facts and is based on bare conclusions. Nextel of New York, Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 30-31 (App. Div. 2003).

The Board's resolution fails to identify any provision of the local ordinances violated by this site plan. For that reason alone, its decision should not be permitted to stand. But let us assume, as the appellants do, that the Board was applying Section 603.4(E) of Springfield's Land Use Ordinance, which provides, in relevant part, that "[d]riveways . . . and off-street truck loading spaces . . . shall be arranged for the safe, adequate, and convenient ingress and egress of vehicles . . . ."

Putting aside what one might consider the lack of express standards in this section of the ordinance, which we will do because that point is not raised by S & S, the question becomes whether the Board "could reasonably have reached its decision." Davis Enterprises v. Karpf, 105 N.J. 476, 485 (1987). Much argument has been devoted to the conflicting testimony on S & S's possible use of "dropped trailers," and the trial judge's rejection of the Board's acceptance of the objectors testimony on this point. But that evidence has no relevance since the use of dropped trailers is not prohibited by the local ordinance. Moreover, the Board's statement of reasons does not rely expressly on the use of dropped trailers as a basis for denying the application. The number of loading docks, which the Board found to be inadequate and a ground for denying the application, is also irrelevant because, as all agree, S & S's site plan provides more loading docks than the ordinance requires. Since the Board based its determination that there would be a "serious back-up of delivery trucks" to the adjoining streets on the number of loading docks, and because the concern was with an off-site condition, the trial judge correctly found that determination to be unreasonable. The only evidence on the lack of safety within the loading area offered by the objectors, came from Rea and Amorisi in purely conclusory terms. And nothing in the Board's resolution demonstrates with specificity why the area is unsafe. Therefore, the trial judge correctly found that the Board's decision was unreasonable. And the judge's determination is further supported by the Board's failure to explain why it was rejecting the opinions of its own experts, which fully endorsed the opinions expressed by S & S's experts.

The additional condition imposed by the trial judge reads as follows:

An electrically lighted sign will be placed at the entry point to the loading dock area identifying the loading area and which will indicate when all loading docks are in use. When such is the occasion, an incoming tractor trailer truck will not be permitted to enter the docking area nor will it be allowed anywhere on the complex. Such truck will have to go to its next stop and come back at a later time. The engineer for Springfield will approve the location and verbiage of the sign based on appropriate engineering principles.

Appellants contend that the trial judge exceeded his authority in imposing the additional condition. We agree. "The proper scope of judicial review . . . is not to suggest a decision that may be better than the one made by the board of adjustment or planning board, but to determine whether the board could have reasonably reached its decision." Davis Enterprises, supra,, 105 N.J. at 485 (citations omitted). Moreover, the subject is dealt with by Condition 13 of the Resolution, which we have quoted above, and the trial judge did not explain why Condition 13 was inadequate. Therefore, the trial judge's addition of the condition is reversed.

The last issue is whether the trial judge was correct in ordering that the site plan was approved subject to the twenty-five conditions contained in the Resolution. S & S contends that we should view the Board's resolution as endorsing the twenty-five conditions and therefore uphold the trial judge's decision, while appellants contend that the case should be remanded to the Board so that it can affirmatively decide if the conditions should be imposed as written or be modified or amplified. Apart from a reading of the conditions by the chairman, and their inclusion in the Resolution, no Board member other than the chairman commented on them. The chairman's comment was that "were this site plan to be approved, I strongly suggest that, at the very least, any such approval be conditioned on certain items which were the subject of comment and suggestion during the course of the hearings . . . ." [Emphasis added.]

When a court determines that a zoning board has improperly rejected an application for a site plan, as here, the appropriate relief is reversal and remand to give the board an opportunity to "impose appropriate conditions, consistent with the ordinance, in conjunction with the grant of final site plan approval." PRB Enterprises, Inc. v. South Brunswick, 105 N.J. 1, 10 (1987). Since we cannot conclude that the Board voted affirmatively in favor of the twenty-five conditions listed in its resolution, and since it might, on specific consideration of those conditions, find that modification is in order, we remand the case to the Board for further proceedings, to be conducted forthwith, consistent with this opinion.

Affirmed in part; reversed in part, and remanded to the Board for consideration, based on the record as it exists, of reasonable conditions to be imposed on its approval of the site plan.

 

"Specifically, he testified:

The dropped trailers are a way of life in our business . . . [t]his is a way of extending the back room . . . So, quite often if there's not enough doors, it's believable they're going to drop the trailers. . . . We all drop trailers. It's the most productive, economic way to do business and we all do it."

(continued)

(continued)

15

A-3965-03T1

October 28, 2005